More Option Clauses

Option clauses are always a matter of great discussion, and my last two posts elicited some more great questions, questions that were worthy of another post and not just answers in the comments sections. So to continue our discussion . . .

Timing
A number of you asked about the timing of an option clause. Some of you had concerns about when an option actually begins if it says something like “once current work is accepted,” while others wanted to know what to do in the case of an option clause that didn’t specify a time period at all.

To explain to those who might not have seen an option clause, most will say something along the lines of, “The Publisher shall be entitled to a period of 6 weeks after submission of option material, which period shall not commence until acceptance of final Work covered in this Agreement, within which to notify Author of its decision.”

First let me say that most option clauses, especially those at a large house, will specify a time period. The thing you should be most aware of is when that time period begins. Ideally it should begin from the time your manuscript is delivered, although most publishers are going to try to make it from the time the last book on the contract is published. Certainly not an ideal. Keep in mind, though, that whatever the option clause says in terms of time period, it doesn’t necessarily mean that they won’t exercise their option (review your option material) before the time period begins, it just means they don’t have to.

So, if your option begins 6 weeks after acceptance, then that means whenever the publisher deems your work acceptable (at which time they usually pay you). That does not necessarily mean when the book is ready to go to the printer. On the contrary, acceptance of the book is usually made when the manuscript goes to the copy editor or when you finish revisions and your editor gives the okay. Of course, this is different for every publisher. If you have any concerns about when your publisher deems the work acceptable, simply send an e-mail, or have your agent send an e-mail, to your editor asking her if the work has been accepted or asking her to notify you when it’s been accepted. Her return e-mail, with the date, will be your answer, and the beginning of your option time period.

For those of you without a time period this can be tough. That means the publisher has as long as they want to make a decision about your option material. Your goal is to get them that material as quickly as possible and bug the heck out of them until they make a decision, letting you know that either you have a new contract or are free to go your merry way. Truthfully, most publishers will want to make a decision quickly and don’t want to hold up your career, so if you don’t have a time period in your contract, don’t worry that you’ve ruined everything. You’ll just have to be a little more vigilant to get your publisher to answer.

Definition of Next Work
Every option clause should be narrowed to your “next” work. Be wary of any that say something along the lines of “Publisher has the first right of refusal on any Work or all Works.” You never want to give a publisher an option on more than one book.

So, if you are under option, does that mean you can’t submit to another publisher until your option is fulfilled? Yes and no. It means you can’t submit your next work to another publisher under the constraints of the option clause. So, what is your option clause for? If it says the publisher has the option on the next work in the series, then you can’t send any other works in that series to another publisher without giving your publisher the first look. However, if you have an idea for a fresh new series, then you can send it to anyone you want, whether it’s your next work or not. Of course, you are only under option until your publisher “exercises their option,” which means reads and makes a decision about your “next work.”

That being said, it is always possible to offer a publisher your “next work” and then submit like crazy to other houses. As I mentioned before, an option clause is easy for a saavy agent to get around, and there are a lot of ways to do it. If your option is well negotiated and narrow enough, then you can certainly submit other books that fall outside of the option anywhere you want at any time. The trick though is why do you want to do this? Is it simply because you feel that you need to be published by more than one house, or there’s a cache to multiple houses that you want? Because sneaking around an option clause could definitely affect your relationship with your current house, and if you’re happy with your editor, the money you’re making, and the way the house is publishing you, then why would you want to do that? On the other hand, if you are writing a series or a type of book for one house and want to try your hand at something completely different, then certainly, why not send it around. Give your current editor a look while taking it to other houses. Presumably you aren’t under option for this other type of work.

Negotiating and Option Clause
How does an option clause affect your (or my) ability to negotiate a contract? Well, to a certain degree it doesn’t affect me at all. Of course in other ways it affects me a great deal. I can still negotiate the contract, and will still negotiate the contract, in the same way I would if it were the author’s first time out. The one big restriction, however, is that an option clause removes the ability to pit two or more houses against each other, which is what the publisher wants. That being said, I continually talk to editors about my authors, even those under option, and we have regular conversations about those clients they might be interested in “stealing.” If a negotiation is not going my way, or I’m not at all happy with it, I certainly know what my “options” are. Just because we’re under an option doesn’t mean we need to agree to the terms. If I know my author and her career well and I’m not happy with the way the negotiation is going, I’m certainly not going to just sit back and accept an offer. It’s always our right to simply walk away. And yes, walking away frees an offer from all further obligations to that publisher, or should according to your option clause.

For those of you who asked very specific questions, I may not have been able to answer them without reading your actual option clause. For example, I’m not sure if your clause is specific to your pen name or broad enough to cover whatever you’re writing under whatever name you’re writing it.

Whatever you do, don’t worry too much about an option clause. There are always ways around them, and a good agent can find every loophole possible. A poorly negotiated option clause can always be changed with the next contract or worked around. But now that you know more about them, you know what to look for.

—Jessica