Tuesday, October 7, 2008

Non-Disparagement Clause?

Has anyone hear ever heard of such a thing in a lit contract? I sure haven't, and I certainly wouldn't sign any contract which had one.

From Absolute Write (post #89 and a bit of commentary after) through EREC, someone named Cant was asking whether there's a way out of a contract if you strongly suspect your publisher is about to take a nose-dive, but he didn't want to give many specifics because there was a non-disparagement clause in his contract. (It came out later, though, that it was Cacoethes Publishing, and the discussion was moved to that thread.)

Beth Bernobich, in post #96, said she had a non-disparagement clause in a short story contract once, and that the (unnamed) publisher refused to budge on it. That shows that it's not just a fluke with a single publisher.

In all seriousness, the presence of a non-disparagement clause or anything similar in a contract is, to me, a huge sign lit up in neon saying "We're going to mess you over and don't want you complaining to anyone about it."

I guess that makes it a good thing -- nice of them to give writers such an obvious "Flee For Your Life!" signal. [wry smile]

And just what would "non-disparagement" cover, anyway? Would it cover anything negative or even questioning one might say about the publisher? That sounds awfully open-ended; I didn't think the courts liked that sort of thing. Or would it be more like existing libel and slander laws, where you're free to say what you want so long as you can show that it's true? If that's the case, then a non-disparagement clause wouldn't prevent someone from posting on their blog that "Fly By Night Press hasn't paid me in three years, hasn't answered their phone or e-mail in two and a half years, and I just spotted my book being sold in B&N with the FBN owner's name on the cover." (Assuming it was all true, of course.) So what's the point, then?

I'd love to hear an opinion from someone who's actually up on related law, because this sounds incredibly iffy.



laughingwolf said...

i'm with you, and don't think it would stand up in court... but i'm not a lawyer

writtenwyrdd said...

I've experienced a similar thing with work--a don't be an embarrassment to the service or you're subject to punishment or loss of job. It sounds like the same idea, but not enforceable.

Charles Gramlich said...

Hum, never seen anything like that.

Angie said...

I don't think it'd stand up either, but I guess it depends how you define "disparagement."

And even if it wouldn't, if you're a publisher and your writers think it's binding, then that's good enough. :/


Steve Malley said...

My rule of thumb is that lawsuits go to the one with the most money.

And no company will ever pay you enough to successfully sue them.

Angie said...

Steve -- isn't that the truth, on both counts? That's where legal defense funds can come in very handy, with groups of relatively poor members of some interest group building a legal fund so they can go after any 800-pound gorillas who decide to muscle in where they shouldn't. The fanfic fans have plans for building one; I've been wondering whether the profic side has anything similar, maybe through one or more of the writers' organizations? I've never seen a mention of anything like that, but it could be useful. To say nothing of actually giving members something concrete to show for their dues money.


Anonymous said...

Hey, just spotted this post while googling "non-disparagement".

Thanks for the opinions! Hopefully at the very least my case can be an example for others...

Angie said...

Cant -- welcome, and I hope so too. I'd still love to know some more of the legal details on exactly how these things work, though. It sounds awfully dodgy to me, but then I'm not a lawyer and don't even play one on TV. Good luck!