Non-compete clauses in contracts

The subject of non-compete clauses came up in a recent meeting of my local indie writer’s group, so I thought I would point to a number of blog entries regarding them over the years.  They’re not in any particular order, nor are any of them necessarily canonical.  However, if you read them all, you’ll get a pretty good feeling on why non-compete clauses are bad for the author and why you should be wary of any contract a traditional publisher offers you.

The Passive Voice talks about the bad attitude of agents and publishers towards authors.

Kristine Rusch talks about the various forms a non-compete clause can take.

More from the Passive Voice on how to read a contract with non-compete clauses.  In fact, I recommend all of the Passive Voice articles on how to read a contract.

A few more thoughts on not signing dumb contracts.

And finally, a cautionary tale of how publishers really will exercise that non-competition clause to stop you from self-publishing that independent book.

Does all of that spell the death of the hybrid author approach?  That is, does this mean you cannot do both traditional and self-publishing?  No, it doesn’t.  But the key to success seems to be to start as an independent self-publisher, and then once you have something that traditional publishing wants, you will have the leverage necessary to negotiate away the non-compete clauses in their various forms.  If you start with the traditional publishers from beginning, you don’t have much to negotiate with.

Rare Hard-ish Data

In the midst of all the change happening in publishing, it’s hard to find hard data for large swaths of the industry. Sure, I have pretty hard data about what my sales are, but about the industry in general? Not so much. So, it’s with real joy that I came across this collection of data. For what it is, it’s fairly hard data, but even then, it’s has some real limitations.

So, without further delay, here it is: a site that breaks down Amazon’s Kindle Top 100 Fiction lists by Indie vs. Traditional, page count, price point, and genre. For example, here’s a chart showing for the breakdown for the top 100 in science fiction.

AmazonScienceFiction_091513Indies and small presses dominate the list with 60, compared to the Big 5 with 22. Also, the dominant price points seem to be $3 to $5 with pages counts in the 250-500 range. Paranormal and Urban fantasy looks similar:

AmazonParanormalAndUrbanFantasy_091513Again, the Indie/small outnumber the Big 5 by 69 to 27, and the dominant prices are $3 to $4 for 200 to 400 pages of story.

The other interesting chart is the Genre Popularity here:

AmazonGenrePopularity_091513This is one is harder to read. What I’m really wanting is a market share breakdown of the different genres, and this is not that. Instead, it’s where in the ultimate Top 100 Fiction list do these various genres’ top 100 books end up? For example, the top 100 mystery novels average out to at the 474th position overall. If we assume a standard deviation (a not-at-all safe assumption), we might conclude that the 50th best-selling mystery was the 474th best-selling book on all of Kindle. For science fiction, we end up at the 1203rd spot.

Now, there are plenty of caveats, many of which are listed on the page itself. Not all data is always available – you’ll note that the breakdown on many top 100 lists don’t add up to 100. Indies and small press have been lumped together. The site even goes on to say that “accuracy is not guaranteed,” but I suspect that’s a cover-your-ass disclaimer, not cover for outright deceit.

The bigger caveat is that this is for Amazon US Kindle sales. It tells us nothing about what’s happening on other e-book platforms like the Nook or Kobo, and it tells us even less about what’s happening in Barnes & Noble’s brick and mortar stores or all the various independent bookstores across the country. And it tells us nothing about what’s happening outside the US. So, in a very real sense, this data covers only a small section of the worldwide book market.

However, it’s harder data than I’m used to seeing anywhere else. Much of the coverage of print vs. e-book and indie vs. traditional publishers have been told with anecdotes and outliers. This, at least, is some hard-ish data, and it seems to say that indie publishing is a real force. Well… a real force in at least part of the market, in one format, on the one dominant platform.

It’s not much, but it is something.

Indie vs. Traditional Publishing

One of the nicest things to see on the internet is watching a pointless argument actually cool off instead of pouring on even more heat. It’s rare, but it does happen, just like it did for the ongoing argument between established authors who published through the traditional houses and the upstarts like me who went the indie or self-publishing route.

castleAt the start of 2012, about the time I made my own decision to go Indie, the two camps were digging trenches and sharpening spears. Those in the traditional camp stood high upon the walls of their New York castles, confident in their righteous gatekeepers, and looked out upon the raging barbarians and called them deluded fools. Meanwhile, the indie camp moved openly through the fields with confidence and shook their heads at the poor word-slaves held prisoner within those very same New York castles. Between them raged a war of words so vast and vehement that I can only imagine how many novels slipped off to next year because of the wasted effort.

But now things have cooled down. The two camps are hardly seeing eye to eye, but I’m seeing some grudging acceptance in both camps.

What happened to change their minds? Well, I’m sure that some of it was merely them running out of steam. Even the most strident partisans eventually wear themselves out. They might say there is no point in trying to educate their idiotic opposition or that they are merely taking a brief respite from the fight, but when you add it up across the ranks, the volume has been turned down from its once-epic volume.

nomoneyinhandBut there were also some reality checks on both sides. Thousands of indie authors tossed out their one and only book, pounded out the marketing, and inexplicably did NOT become millionaires. For that matter, most did not even make $1000. It became clear that we would not all be breakout successes like Joe Konrath, Amanda Hocking, and E. L. James. Just like in traditional publishing, those were going to be the rare exception. Many realized that one book will not give them a living wage and that they did not have the patience and stamina to keep at it for ten or fifteen books before seeing much success.

Meanwhile, cracks spread through the New York castle walls. One of the best-selling SF books in 2012 was Wool, self-published by its author Hugh Howey. Another best-seller was the Fifty Shades of Grey trilogy, another self-publishing breakout. Also, major authors started pulling their electronic rights back from the traditional publishers. Specifically, J. K. Rowling decided to publish the e-book versions of the Harry Potter series herself, and I have personally heard a number of older authors talk about putting up some of the backlist for sale themselves and “making more on it now than I ever did before.” Throw in a price-fixing lawsuit by the U.S. Department of Justice, a merger or two, and those castle walls are starting to look a lot less stable.

We’re also seeing some crossover with indie authors grabbing traditional contracts and traditionally published authors walking away to go indie. Some of those moving into the New York castles talk about finally seeing their books on a bookstore shelf, while those moving out into the open fields talk about having the kind of control they always wanted but never had. And after years of everyone saying the only path to publishing was to get an agent, we’re seeing several examples of New York publishers looking at successful indie books as their new slush pile.

While both sides are starting to question the certainty of their righteous cause, it’s important to note what is really coming out of all this. It’s not that one side is right and the other side wrong. It’s that traditional publishing is right for some people and some situations while indie publishing is right for other people and other situations.

The bottom line is that we should all be trying to make the decision that is right for ourselves. These will vary according to our goals, our personalities, and where we are on this particular journey. Am I making the right decision for myself? I honestly don’t know, but I do know that I’m in a better position to know than anyone else, whether it’s some illiterate slob or the CEO of Random House.