Tag Archives: Mike Shatzkin

The Writing Biz: Noncompete Clauses and New Careers

Posted on by

by James Scott Bell
@jamesscottbell

Two things caught my eye this week I think you should know about.

1. The End of the Noncompete Clause?

Traditionally published authors authors take note (and discuss with your agent): The Federal Trade Commission has issued a rule banning noncompete clauses. Under the rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date on Sept. 4, 2024.

The Authors Guild applauds the rule:

The Authors Guild has long objected to non-compete clauses and advised their removal in our contract reviews. These clauses, which are purportedly designed to protect publishers’ investments by preventing authors from selling the same or substantially similar work to another publisher, are often too broad. Authors are routinely asked to agree not to publish other works that might “directly compete with” the book under contract or “be likely to injure its sale or the merchandising of other rights.” Even more broadly, they may be asked not to “publish or authorize the publication of any material based on the Work or any material in the Work or any other work of such a nature such that it is likely to compete with the Work.”

Such open-ended non-compete clauses can prevent authors from pursuing other writing opportunities. If a new project even arguably deals with the same “subject” as the book under contract, the non-compete can be invoked to prevent an author from publishing elsewhere. For writers specializing in a particular subject, this could be career-derailing.

Certainly an author shouldn’t “compete” with their trad book by, say, self-publishing a similar book in the same season, etc. The publisher does deserve some protection for their investment, and your full marketing effort to help the book succeed.

On the other hand, a writer should be free to make more dough without the threat of a noncompete hammer coming down upon them. Thus, I have advocated for a more specific and fairer noncompete. But that may be moot in view of this new rule.

However, keep watch, for there are grounds for a lawsuit challenging the rule. Indeed, one of the Commissioners strongly dissented:

The rule nullifies more than thirty million existing contracts, and forecloses countless tens of millions of future contracts. The Commission estimates that the rule could cost employers between $400 billion and $488 billion in additional wages and benefits over the next ten years—and does not even hazard a guess at the value of the 30 million contracts it nullifies.

His reason for dissenting is that “an administrative agency’s power to regulate … must always be grounded in a valid grant of authority from Congress. Because we lack that authority, the Final Rule is unlawful.”

We shall see.

2. Can New Writers Still Have a Career?

It is “staggeringly difficult,” according to industry vet Mike Shatzkin.

You don’t have to be an insider to know that there were 500,000 titles in English available in 1990 and that more than 20 million are available from Ingram (thanks to print-on-demand) today. And that everything that was ever made available remains on sale through “normal channels” (which is “online”, not “in store”) forever. It doesn’t take a math genius to reckon that a pretty stable total book purchasing and readership constituency will result in dramatic reductions in sales per title.

In a meeting with publishing vets, he came away with this:

One agent has two clients who are successful self-publishers (there are subsidiary rights and foreign rights to occupy an agent.) Two things stood out about them. One is that they both published exclusively with Amazon, without the complement (which I would have thought would be “standard”) of also working through Ingram. The other thing was that they both started working their genres (and they publish exclusively genre fiction) in 2008 or so, before the rush of self-publishers in genres had saturated the market. So they established their brands in their genre marketplace when the competition was still minimal. The agent reports that both of these authors don’t believe they’d be successful starting to do this today.

JSB: I don’t agree with the last statement as a “rule.” The goal for a writer today is not wide distribution, but growing an “own list.” That can still be done, if the quality is there. True, the “breakout novel” is rarer than ever, but it has always been the exception. The writers who make a good chunk of change over time deliver quality product that grows a readership, which they nurture via email list and some social media presence.

It is, indeed, almost impossible to get a significant advance from a publisher unless sales are assured either by a highly branded author or an author platform of some kind that has significant promise for marketing and sales.

JSB: True that! And if that noncompete rule holds up, I would expect advances to be lower to nonexistent.

Comments welcome.

Staying Afloat in the Roiling Sea of Books

Posted on by

by James Scott Bell
@jamesscottbell

Blue-footed booby

Discoverability is becoming as rare as the blue-footed booby.

According to Bowker, the outfit that registers ISBN numbers, over a million self-published books were issued ISBNs last year.

That’s a one with six zeros after it.

And understand, this does not include traditionally-published books, nor all the ebook-only titles without ISBNs.

Which means there’s a whole lotta books out there, and more added every year. (Most of which are bad. See Sturgeon’s Law.)

Industry observer Mike Shatzkin added this:

I had reason to learn recently that Ingram has 16 million individual titles loaded in their Lightning Source database ready to be delivered as a bound book to you within 24 hours, if not sooner. So every book coming into the world today is competing against 16 million other books that you might buy.

That number — the number of individual book titles available to any consumer, bookstore, or library — has exploded in my working lifetime. As recently as 25 years ago, the potential titles available — in print and on a warehouse shelf ready to be ordered, or even to be backordered until a next printing — was numbered in the hundreds of thousands. So it has grown by 20 or 30 or 40 times. That’s between 2000 percent and 4000 percent in the last quarter century.

Of discoverability, agent Rachelle Gardner recently observed:

How can any single book stand out in that large of a field? It’s very difficult. The problem is known as discoverability and it means the odds are stacked against us when we want to bring readers’ attention to our books.

This is why the publisher needs your help—it’s important to find your audience, that specific group of people who will like your book. They need you engaging with your audience, connecting with them, doing your part to make them aware of you.

Even with all this work, it’s still hard to make your book discoverable. It’s not anyone’s fault. Publishers are not conspiring to make life difficult for you. They’re not being unreasonable by requiring authors to participate in marketing. It’s simply the situation we find ourselves in—there are too many books, so we all have to work so much harder to each one stand out to its unique audience.

One line that jumped out at me is: the publisher needs your help. It used to be the other way around. A writer needed a traditional publisher to get into bookstores. If there were some marketing dollars in the budget, the publisher might arrange to have the book placed on the New Release table at the front of the store.

But now, with bookstore space shrinking, and marketing push going almost exclusively to the A list, authors writing inside the walls of the Forbidden City are expected to do audience building themselves (which has some authors wondering why the publishing houses still take the same royalty split as when they did all the heavy lifting. But I digress).

So how do you build an audience these days? The old-fashioned way. You earn it. (Hat tip to John Houseman).

Book after book. And more than one or two titles. You don’t hit a stride until you have several books out there to go with a steady pace of future production.

Another agent, Steve Laube, also reflected on the Bowker publishing numbers, and offered this advice:

  1. Write the very best book you can.
  2. Build an audience who will support your work (i.e. platform).
  3. Decide whether to self-publish (but only do it the right way) or go the traditional route (get an agent).
  4. Figure out how to launch a book.

The fundamentals don’t change, do they? That’s why they’re called fundamentals. I’d modify the list a bit this way:

  1. Write the very best books (plural) you can, at least one per year.
  2. Keep learning and growing in the craft.
  3. Decide what kind of writer you want to be. If self-publishing is on your mind, consider:
    1. Can you be sufficiently productive?
    2. Do you have the discipline to learn basic business practices?
    3. Are you willing to invest between $500 and $2,000 for cover design, editing, and proofreading for each book?
  1. If traditional publishing is your goal, ask:
    1. Am I patient enough to wait up to 18 months for my book to come out?
    2. Will my agent fight for more author-friendly non-compete and reversion-of-rights clauses?
    3. Am I ready with a plan should my publisher drop me?

One word I do wish we’d get rid of is platform. For non-fiction a platform is desirable because there’s a built-in audience for a subject. But agents and publishers push this amorphous concept on unpublished fiction authors, which only adds to their stress and detracts from their writing time.

The best time for a fiction writer to build a platform is 2003. That’s when we weren’t so blog saturated that a new author might actually gain a following. That’s when we weren’t tossing away good writing time on Twitter and Facebook and Instagram (and, worse, thinking that the latter venues are good places to sell books!)

As I argued a couple of years ago, we need to get out of “discoverability thinking” and into “trustability thinking.”

You should be thinking that each new offering is an opportunity to prove to readers that you deliver the goods. As you do this, time after time, trust in you grows. Consumers buy more from businesses they trust. Readers are consumers and you are a business.

This applies whether you are traditional or indie, commercial or literary, tall or short.

Or have blue feet.

So … are you about to dive into the cold Atlantic of content, knowing full well how vast and choppy it is out there? Have you taken swimming lessons (studied craft and market)?  

Or are you already swimming?

How’s the water?