January 13th, 2017

Negotiating Options in Publishing Deals

Susan Spann

Susan Spann“Option clauses” or “options,” are a provision in a publishing deal that gives the publishing house a “right of first refusal” on the author’s next work. While this initially sounds like a great idea – most authors want to continue being published – traditional option clauses often contain some traps that authors should avoid.

Here’s an overview of what authors should look for – and negotiate – in the option clause of a publishing deal:

1. “Right to Publish” vs. “Right to Negotiate.” The option clause should give the publisher the exclusive right to negotiate contract terms for publication of the optioned work – not the right “to publish,” and especially not the right to publish the optioned work on the same terms as the original contract. If the publisher wants the automatic right to publish author’s next book on the same contractual terms, the publisher should be offering the author a two-book deal from the start.

2. Option Limited to Author’s Next Book in the Same Series (or Genre). Many option clauses give the publisher an option on the author’s “next work” (without any limitations) or, worse, an option on all of the author’s future works. Options should be limited to the author’s next book-length work in the same series only (or in the same, specified, genre, for standalone books). Note: Limiting the option to “book-length” works prevents the option from including novellas and short stories.

3. No Limitations After the Publisher’s Refusal. Some option clauses try to limit or restrict the author’s ability to sell the optioned work, even if negotiations with the publisher fail to produce a contract. Some of these limitations state that, even if the option fails or the publisher rejects the optioned work, the author can sell the work only to a publisher that subsequently offers “better terms” for the work. Other option language gives the original publisher a right of first refusal to match any subsequent offers the author receives for the optioned work (even after the original publisher rejects it or if option negotiations fail). This is not fair to the author. Option clauses should not contain any language that limits the author’s right to sell the work, or to publish it elsewhere, if the publisher fails to negotiate an acceptable contract for publication of the optioned work during the original option period.

4. Time Limits On Option Period. The publisher’s option should be limited to a specific amount of time – normally 45-90 days, total, for review of the optioned work and contract negotiation. The clause should state that the publisher’s failure to make a decision, or reach acceptable contract terms, within that time will constitute refusal of the option work (which terminates the option). Otherwise, the author could end up waiting indefinitely for the publisher to make a decision, or stuck in contract negotiations that never reach an end.

5. Description of Option Materials. The option clause should specify whether the author has to provide the entire manuscript of the optioned work or merely sample chapters and a synopsis. The Author’s Guild recommends that options be based upon sample chapters, rather than full manuscripts, especially for established authors. While not all publishers will negotiate this requirement, it’s worth asking the publisher to consider sample chapters rather than a completed manuscript, especially for series fiction.

6. Timing of Delivery for Option Works. Some option clauses limit how quickly an author can deliver the option work for consideration. In many cases, the author cannot deliver an option work until after the publisher has accepted the work that’s governed by the contract (in the case of multi-book contracts, options normally aren’t considered until after acceptance of the contract’s final manuscript). Negotiate to ensure that any such limitations are reasonable and in line with your writing speed and career plans.

The good news is that many publishers will negotiate the option clause, as long as authors or their representatives ask for changes. However, authors should beware of publishers that refuse to negotiate harsh option language – especially options that give the publisher rights to “claw back” optioned works even after an initial rejection.

Do you have option clauses in your publishing contracts? How do you feel about options in publishing deals? 

About Susan

Ninjas-Daughter1Susan Spann is a California transactional attorney whose practice focuses on publishing law and business, and is also the author of the Hiro Hattori (Shinobi) mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her fourth novel, THE NINJA’S DAUGHTER, released from Seventh Street Books in August 2016. Susan was the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and when not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (/SusanSpannBooks).

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