Beware the Option Clause!

It’s been awhile since my last post, but not because I haven’t been writing. Shortly after releasing In the Heart of Darkness, I stumbled across an older, incomplete manuscript I’d started several years ago. I’d actually managed to make it a good 130,000+ words into the story before shelving it, but not because I didn’t like it. In fact, I really liked it — so much so, I decided to dust it off and give it another chance at life. I figured with a month or two, I could get it finished.

That’s turned out to be longer than anticipated, and what I thought would be a relatively easy project to complete has wound up being a hell of a lot more. I basically scraped the original manuscript down to the bare bones, the protagonists and the concept, and have rewritten everything. But only after playing around with trying to complete the original version unsuccessfully for a good six weeks. So far, I’m happy with what I’ve completed, and I’ve outlined the rest of the book. (Figuring out a resolution by simply writing by the seat of my pants, as I often do, wasn’t working for this one, so I’ve uncharacteristically become a “plotter.”) But more on that later.

I want to throw something out as a sort of caution to other authors:

Beware the option clause.

I mention this because, in addition to my current WIP, I also decided to dust off Forsaken, the first in what I’d like to see become an urban fantasy series. I self-published Forsaken several years ago, despite receiving offers from several ebook presses to publish it. Unfortunately, at about that same time, I was headlong into nursing school, and couldn’t devote the time, energy, or money needed to effectively market the book. I eventually pulled it, but still love both the story and the series concept, and so have been shopping it around again.

I recently received a publication offer on both Forsaken and the two subsequent book in the series from an ebook publisher. In reviewing their contract, I came across this option clause:

“Author retains the right to self-publish their next full-length or short work, provided that such work is not a sequel, extension, continuation, prequel or otherwise based within the universe of the Work upon which rights have been granted herein. If the Work does fall within aforementioned parameters, or in the event that the author decides not to self-publish the work in question, or if any future work regardless of release date or sequence that is a sequel, extension, continuation, prequel or otherwise based within the universe of the Work upon which rights have been granted herein, Publisher and Editor hereby retain the exclusive option to acquire such full-length or short work of Author on mutually satisfactory terms and conditions. […]

“If, within 90 days following submission of such work to Publisher or Editor, or within 90 days after acceptance of the work, whichever shall be later, Publisher, Editor and Author are unable in good faith to agree upon terms for publication, the Author shall be free thereafter to submit such next work to other publishers or to self-publish the work, provided however, that Publisher and Editor shall retain the first option to acquire the work on terms no less favorable to the Author than those offered by any other publisher.”

The publisher was unwilling to amend or remove this clause, and so I declined their offer.

Why?

An option clause serves two purposes. First, it acts as insurance for the publisher, so if you become the next big thing, they have first dibs on your subsequent work. That makes sense: publishing is a business. If you’re successful, you make your publisher money. They want to keep you around.

Second, it helps reassure authors that publishers are interested in seeing them succeed, and will consider subsequent works from them.

However, as an author, you need to insure that the option clause works to your benefit, as well as the publisher’s. The one I was offered doesn’t. Breaking it down, here’s why:

“Author retains the right to self-publish their next full-length or short work, provided that such work is not a sequel, extension, continuation, prequel or otherwise based within the universe of the Work upon which rights have been granted herein. If the Work does fall within aforementioned parameters, or in the event that the author decides not to self-publish the work in question, or if any future work regardless of release date or sequence that is a sequel, extension, continuation, prequel or otherwise based within the universe of the Work upon which rights have been granted herein, Publisher and Editor hereby retain the exclusive option to acquire such full-length or short work of Author on mutually satisfactory terms and conditions.”

This basically says that the publisher gets first dibs at next thing you write, whether a novel, novella, or short story, regardless of whether it’s in the same universe as your contracted manuscript, or even the same genre. Even if they don’t publish that genre, you can’t submit it elsewhere until you submit it to them first.

“If, within 90 days following submission of such work to Publisher or Editor, or within 90 days after acceptance of the work, whichever shall be later, Publisher, Editor and Author are unable in good faith to agree upon terms for publication, the Author shall be free thereafter to submit such next work to other publishers or to self-publish the work, provided however, that Publisher and Editor shall retain the first option to acquire the work on terms no less favorable to the Author than those offered by any other publisher.”

This basically says not only does the publisher get first dibs on your next work of any length and any genre, regardless of whether or not they publish that length or genre, they can hold on to it for 90 days before making a decision as to whether or not they’d like to offer a contract on it. And even after that 90 day period, if they decline to offer you a contract, and you receive another offer of publication from another publisher, this publisher still has the right to change their mind and meet that same offer with one of their own.

And if you sign future contracts with this publisher, this same clause recurs, meaning it’s a endless cycle. If you choose to self-publish, it’s not as confining. But if you want to submit to other presses, you’re very constricted by the terms. As one who writes in multiple genres, many of which were not published by this press, I was unwilling to commit to such a broad option clause.

So how is an option clause that mutually benefits both the publisher and the author worded? I found some terrific guidance from this blog post by Jennifer Laughran, an agent at Andrea Brown Literary Agency. (I should specify Ms. Laughran does not represent me, and I have no affiliation with her agency.) Basically, Ms. Laughran recommends limiting the option clause as much as possible. That means specifying only the next work of the same length and genre as the contracted manuscript, or only the next subsequent manuscript set in the contracted work’s universe/world, or with the same characters.

She also recommends limiting the amount of time a publisher has to review the option work: “30 days is ideal, NOT 90 or 120 days or anything else.” Additionally, “ask to be able to turn in a proposal/sample chapters, not an entire manuscript” and “make the date I can submit be either anytime, or anytime after delivery of the first book… NOT AFTER PUBLICATION OF THE FIRST BOOK [sic]. That could keep you hemmed up for a year or more.”

She has a lot of other great tips in her post. I highly recommend reading it and bookmarking it for future reference, if you’re an author!

Based on the suggestions from her post, here’s what I proposed as a revised option clause to my prospective publisher:

“Publisher shall have the first opportunity to read and consider for publication either the complete text, synopsis, or specimen chapter from the Author’s next sequel, extension, continuation, prequel or other work based within the universe of the Work upon which rights have been granted herein, for a period of 90 days from receipt of proposal of said next work, on terms to be negotiated. If the Publisher and the Author are unable to agree terms for publication, the Author shall be at liberty to enter into an agreement with another publisher.”

I had no problem allowing them the 90-day window and felt the rest of my proposal was fair and equitable to both me and the publisher. Unfortunately, we weren’t able to reach an agreement on the clause, and as I said, I turned down the offer.

Some folks might be okay accepting a contract with a option clause like the original one in it, but I wasn’t. It is important for me to emphasize that this in no way implies that this publisher was not legitimate or well-intentioned. They may be great — just not for me. I’m soliciting agents, and until I have one (and hell, even when I do!), I need to trust my own instincts and look out for my own best interests in my pursuit of publication. I work too hard on this shit to hand it over blindly to just anyone!

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