PUBLISHING QUESTION OF THE WEEK
I genuinely love talking about contracts, so we are gonna jump right into the business this week!
I've trad-published three novels through a smallish press ([NAME OF PRESS] if that helps), but I'm still unagented. I'm writing a new project, and I hope to find an agent--but I owe [PRESS] three First Refusal Options. When I begin querying, is it better to tell the agent about the First Refusal options I owe [PRESS] in the query letter, to wait until/if I get "The Call" with an agent considering offering representation, or is it better to give [PRESS] those options before I query?
It’s really good that you’re thinking about this before you query. My short answer is that if you query, you should let each agent know up front (in the query) that these options are out there so that they can decide whether they want to move forward. My long answer is a little more complicated, and will depend on some of the language of the actual clause (which I don’t know). I’m going to use this as an educational moment and go through what these clauses are and why this is something to be very wary of with all publishing contracts.
First—and I am not saying this to shame you, or cast judgment in any way—this is one of the reasons why I don’t love small presses who take un-agented submissions, because requiring an author to give a press three the option/ROFR on three projects, to me is, quite frankly, exploitative.
Let me define some stuff, first: “right of first refusal” and “option” are fairly interchangeable terms in the world of publishing contracts. What both of these terms mean is that the publisher who has purchased the rights to one work (in this case, a trilogy, it sounds like?) has the “option” to be the first ones to take a look at the next project the author works on. Nothing wrong with that at all! Options are good! In every contract I’ve ever read for a client, however, this option is limited to one work. Usually the next work in the genre of the book that the publisher publishes. That was a really awkward sentence, so here is a sample clause:
The Author will offer to the Publisher the Author’s next work of fiction before submitting the same to, or soliciting or entertaining any offers from, any other publisher. The Publisher will have a period of [TIME OF OPTION] after the Publisher’s receipt of [OPTION MATERIALS]. If the Publisher makes an offer, the Author will negotiate exclusively with the Publisher for a period of [NEGOTIATION PERIOD] following the Publisher’s offer.
This is a Frankensteined option clause modeled on Big 5 language. Regardless of publisher, agents almost always try to limit it to the genre of the original work—so “next work of fiction” gets modified to “next work of fiction for young adults” or “next work of fantasy,” or whatever, to give you more wiggle room with your creative life. This option language is almost always followed up with language that outlines what happens if the publisher declines to make an offer, i.e. the author is free to sell that work elsewhere. So:
Scenario 1: Author submits option material → publisher says yes and makes an offer → negotiations commence
Scenario 2: Author submits option material → publisher says no → author is free to take option material somewhere else to sell it
What you’re saying, querent, is that this small press has THREE options—meaning they’ve got right of first refusal on three separate projects. You’ve gotta go through this three times.
Let’s introduce a hypothetical situation. You query your new project, having let all the agents know that Press has these options on the next three projects. You run through your first project’s option with Press and they decline to publish. Your new agent shops the project and sells it to another publisher. That publisher will no doubt have an option in their contract, an option that you are not legally able to grant, because the first Press has the option.
Do you see the pickle? This kind of language can trap an author in an endless cycle of contract-option-negotiation-repeat. At the very least, you’re going to be stuck in this cycle for three different projects, offering them and declining offers on project after project after project until you’re out of the cycle and can query them unencumbered. Depending on how the option language is structured, this cycle could drag on forever:
If there is no time limit on the option consideration, then your publisher can sit on the option material as long as they want. With the sample language above, the publisher has a set period that they can sit on the project; after that point, you have recourse if they haven’t responded or made an offer.
If there is no limit on the genre, you are obligated to present all future works to them, regardless of whether they are a good publisher for that genre/category
Depending on the language/the way it’s structured, if there’s no limit to your identity (i.e. all works written under Specific Pseudonym) you may not be able to pivot to writing under a pseudonym to evade the option
I’m sorry if this answer is a little bit of a bummer. You have published three books with this press, so presumably you have a good relationship with them—I’ve given this answer largely from the perspective of an agent who knows a client wants to move away from said small press. I’m also assuming that the three options are in one clause—i.e. your contract for your most recent project says that you will provide the Press with ROFR on three projects.
For everyone reading who is considering signing with a small press, please pay attention to these clauses that might not seem like much. They can hamstring you by surprise further down the line.
WHAT I’M READING
I’m schlepping around my copy of Busman’s Honeymoon and alternating between that and Every Tool’s a Hammer: Life is What You Make It by Adam Savage. I’ve never been a big Mythbusters watcher (or a watcher at all) but this is a very compelling manual on making as an ethos (versus productivity.) Some of it is fairly bog-standard advice, but the context of the projects he’s worked on make the whole thing very fun. (He did the practical effects for one of my favorite movies of all time, Galaxy Quest!)
THIS WEEK IN HOCKEY
I’m way late to this, but Hobey Baker was probably gay, y’all! Hobey Baker was essentially the Sidney Crosby of the early 20th century; moreover, he’s the only college athlete to be in both the NCAA Football and Hockey hall of fames, and the NCAA Hobey Baker Award is given every year to the top NCAA men’s hockey player. And based on the research done by a recent 30 for 30 podcast, he was probably gay. The image above is from the Princeton University archives (via swifty-fox on Tumblr) and is a letter from Hobey Baker to his “gentleman friend” Percey in 1917. According to the documentarians, “So far, the NHL seems to just want the story to go away” which absolutely tracks, unfortunately.
Text of the letter:
July 23rd, 1917.
Dear Percy:
It suddenly came over me as I saw you drive off what was really happening and I have not gotten over it as yet. God knows I have not deserved all the affection you have given me. I feel, and have always felt, that I have stolen it from some other person for whom God meant it. I hope not. In any case, I am truly thankful.
Don’t stay in Washington more than you have to; it is not worth it.
Affectionately,
“Hobe”.
HOUSEKEEPING
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