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Bad, Worse and Horrible:
The First Refusal Clause
“First refusal” (“FR”) clauses give the publisher the right to publish your future works under certain conditions. Sometimes what is really an “option” is called a “first refusal”, which can be confusing. These clauses generally come in three flavors: bad, worse and horrible. The good news is that often you can negotiate a better deal for yourself here.
BAD FR LANGUAGE: If a prospective new publisher offers you a contract for your second work, you must present that offer to your original publisher. Your original publisher then has the legal right to match that offer and keep you as a client. This is a true “first refusal” clause.
WORSE FR/OPTION LANGUAGE: You must submit any future book to your original publisher if it has the same characters, is set in the same “world” or could in any way construed as a sequel or part of a series related to your first work. This includes any non-fiction work, even if your first work was fiction. Your original publisher has six months to accept or reject your future book. This is actually an option masquerading as a first refusal.
HORRIBLE FR/OPTION LANGUAGE: Your original publisher has an automatic right to publish all of your future works if it wants to. This is also an option masquerading as a first refusal.
WHY THESE SCENARIOS ARE UNFAVORABLE TO YOU: Reason #1: you may not wish to stay with your original publisher. Reason #2: in the first example above, the prospective publisher’s business practices are revealed to your original publisher. This will not endear you to the new publisher. Reason #3: if there’s no timeframe for your original publisher to say yes or no (examples 1 and 3 above), you can be left hanging indefinitely. Reason #4: If your second work is science fiction but happens to be set in your 14th century romantic (book #1) Welsh world, your original publisher may not handle science fiction but you could be stuck with them anyway. Reason #5: these clauses limit your ability to negotiate a better contract the second (third, fourth….) time around.
Nothing contained on this page should be construed as providing legal advice or creating an attorney-client relationship. All information herein is intended as educational only. For advice specific to your situation, please contact an attorney of your choice.