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The Author-Agency Agreement
by Daniel Steven
For many writers the first milestone to
publication is the holy Finding of The Agent. Agents
have become the screeners and gatekeepers for major publishing houses, and receiving an
offer of representation from an agent is certainly cause for celebration. At that magical time, you will be presented with
your agent’s “standard” agreement for signature.
The first step in evaluating the agreement -- if you haven’t
already done so -- is to make sure the agent is reputable. The Association of Author’s Representatives (AAR) has a list of
screening questions on its web site other good sources of information about individual
agents are the annual Writer’s Digest Guide to Literary Agents, Jeff Hermann’s Writer's Guide to Book
Editors, Publishers, and Literary Agents, and the Preditors and Editors web site.
Fee charging vs. non-fee charging agents. Since the early ‘90’s, writers and
writer’s organizations have debated the legitimacy of agents charging a fee (usually
$250 -$750) to review a writer’s work. In
my opinion, reputable agents don't charge a fee to represent authors, but I acknowledge
there are exceptions. Some experienced,
successful agents now use fees to screen clients and/or as part of a legitimate, ancillary
editing business. If you have received an
offer of representation from a fee-charging agent, however, be especially careful in your
evaluation.
After you have established the reputation of the agent
and his/her suitability, examine the proposed contact:
1. Scope. The typical agency agreement gives the agent the
exclusive right to represent ALL of your work throughout the world, in all media, and in
all formats. Any existing works you create
during the term of the agreement (in some cases, even work that predated the agreement)
will be covered. Instead, consider asking the
agent to limit his or her representation to a specific work -- you always can
broaden the scope later, after you see how you work together. You also might want to use a different agent for
subsidiary rights --
film, audio, foreign, electronic -- especially if you are
confident about a particular sub-market and/or the agent does not have an expertise in
that market area.
2. Duration. The duration or “term” of the agreement
is critical. Terms range from 30 days to the
duration of the work’s copyright. Agents,
on one hand, have a legitimate interest in not undertaking work without some certainty
that the client will be around for a while; authors, on the other hand, have a legitimate
interest in not being bound to an unproductive agent.
For authors, the best deal is a 30 day “at will” termination
provision, i.e., either party may terminate upon 30 days’ notice. A frequent compromise in this area is an initial
non-terminable six-month period, followed thereafter by a 30, 60, or 90 day termination
clause. If you do sign a long-term agreement,
be sure to get an “out” clause that allows you to terminate the agreement if the
agent has not made a sale within a certain time limit (e.g., six months). Keep in mind, however, that after termination the
agent is entitled to continue receiving commissions for all publishing deals made by the
agent during the term of the agreement.
3. Commission. Generally, this is not negotiable. Most agents charge 15%, plus an additional
five-10% for foreign rights (this is so the agent can compensate his sub-agent). Thus, an author may pay as much as 25% commission
for a foreign sale. An exception might be if
you have found a publisher yourself and simply want the agent to negotiate the deal -- in that case, some
agents might be willing to lower their commission.
4. Disbursements. Most agency agreements provide that the agent will
receive all of the author’s royalties and advances directly from the publisher,
deduct the commission, and disburse the remainder to the author. The agreement also should
provide that all funds received by the agent on your behalf are deposited in a separate
client’s trust account, not in the agent’s general account (where it can be
attached by creditors) and that the author’s share will be paid within 10 business
days. If the agent does not deposit funds in
a separate client trust account, then be sure the “agency clause” in your
publishing contract gives you the right to cancel the clause in the event of the
agent’s bankruptcy, death, or disability (see paragraph 9, below). You’ll still owe the agent his commission,
of course, but your share of the royalties won’t be held up in bankruptcy or probate
court.
5. Accounting. The agent should be willing to provide at least an
annual accounting to the author, along with the required IRS Form 1099.
6. Expenses. Traditionally, agents have absorbed client
expenses (copying, postage, courier, etc.) as part of their commission. Recently, some agents have begun charging client
expenses separately. If your agent charges
for all expenses, offer a compromise -- ask the agent to
charge only for unusual or “excessive” expenses, not to exceed a specific amount
without the author’s written permission. Further,
these expenses should come out of your future royalties, not directly from your pocket.
7. Powers. Some literary agency agreements give the agent
power to sign contracts and checks on the author’s behalf. This clause should be deleted; if necessary, you
can give the agent this power later, after you have established your relationship.
8. Assignment. Your agent should not be permitted to
“assign” (transfer) your agency agreement to another agency without your
permission. Likewise, you should not be
transferred to another agent within the same agency without your permission.
9. Bankruptcy, Disability, and
Death. If your agent is a sole proprietor
or in a partnership (not incorporated), you must know what happens in the event of
his/her bankruptcy, death, or disability. Specifically,
what provisions exist for continuing operation of your account, for the processing of
money due to you, and for the handling of your works?
Whether a sole proprietor or not, I recommend the following clause be inserted in
all agency agreements: “In the event of
the bankruptcy, insolvency, liquidation, death, or disability of the Agent, the Author may
revoke all rights granted to the Agent hereunder.”
This clause will allow you to direct publishers to pay royalties to you directly
(see paragraph 4, above). Again, you’ll
still owe a commission for works placed by the Agent, but your royalties will not be tied
up in court.
The final consideration is subjective. If you find too many clauses slanted against the
author, it might be a warning sign that the agency is not for you. It’s often said that an agent-author
relationship is like a marriage. The agency
agreement is like a prenuptial contract -- you must understand and settle all issues before
the breakup.
©
Daniel Steven 2002 |
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