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The Writer's Law School : Legal Tips for Writers

The Author- Agent Agreement


Springtime is not only the season of robins, daffodils, longer days and baseball, it's the beginning of the writer conference season. As baseball pitchers wind up to blast the ball across home plate, many writers will also be pitching their hearts out at to editors and agents at lightening speed.


To all of you preparing to pitch, I salute you. Like baseball, your pitching may consist of strikeouts and foul balls. However, all you need is one home run. We all know that a writer only needs one agent to read their manuscript, say "YES!" and offer representation. (We can all hear the crowd roaring from the grandstands.)


Great! Fantastic! What happens next? Before your new agent can start pitching your book to publishers, there are a few details that must be nailed down. Namely, there's the author-agent contract (Agency Agreement) to negotiate and sign.


With hearts thumping wildly in their chests, most writers would be so excited that they'd sign anything put before them – after all, this is the dream of a lifetime. But, caution must not be thrown to the wind. Both parties, the writer and the agent, should have a complete understanding of their respective rights, obligations and duties before they can move forward down the road to publication.


"DANGER! WILL ROBINSON!"


It is not my intention to burst anyone's bubble, in fact, the opposite. However, I do feel like the Robot in Netflix's reboot of "Lost in Space" when I shout "Danger – Will Robinson!"


The most important thing to remember is that when you sign the Agency Agreement, you are executing a document that will determine your writing life for a certain amount of time. You are establishing a brand new relationship with a person who will ultimately control your career and your destiny.


It should be kept in mind that contracts are written not out of distrust, but to codify the trust between you and your agent. An Agency Agreement will help avoid any misunderstandings that can arise during your relationship. The first step is - do your due diligence; check out the agent. The Association of Artist's Representatives is a professional organization of over 400 agents who represent literary and dramatic writers, http://www.aaronline.org. Their members subscribe to a Canon of Ethics that holds each member to the highest standards, requiring that they place the client's interest above their own and to avoid any conflict of interest. And never, ever, pay a "reading fee" to an agent.


Don't believe that you will lose the deal simply because you want certain contract points clarified. In fact, asking pertinent questions reflects knowledge. A reputable agent will respect you, a scrupulous one will not. While each Agency Agreement will be specific to the particular author and their circumstances, there are certain key elements, which are or should be included in the Agency Agreement to protect your interests. The following is a brief list of points that demand your attention before you sign on the dotted line.


SCOPE OF WORK


The first question that you should ask yourself is what works are covered by the Agent Agreement? Does it cover your entire body of work or only new works? Remember that if your agent sells your manuscript they are entitled to a commission ad infinitum. Make sure that the contract is limited to new works, especially if you have previously published or self-published works.


EXCLUSIVITY

 

When you sign the Agency Agreement, you are granting the agent an "exclusive right" to sell or license a particular work anywhere in the world. Among other things, this includes the right to appointment a sub-agent for foreign rights or non-publishing rights like movies or dramatic works.


Be forewarned, though. When you grant your agent an exclusive right to sell your work, it can hamstring any actions you independently take to sell your work. The perfect example would be if you pitch an editor at a conference and they subsequently purchase your work, your agent may have a claim for a commission if the sale occurs during the term of their representation. Seems unfair, right? To avoid litigation, insert a provision excluding author-initiated sales. This should protect you in the event of such an occurrence.

TERM


How long does the contact last? Various scenarios can apply to the length of the Agency Agreement. For example, the contract can be cancelled if no sale occurs within X number of months, or the contract can set forth a specific amount of time such as one year, or it can be an annual contract, automatically renewable unless cancelled by either party within 60 days before the anniversary of the agreement.


Since issues can arise when manuscript is sold shortly after the termination of the Agency Agreement, agents often include a provision that if the book is sold 90 to 180 days after the termination of the agreement or the sale occurs as the result of negotiations that occurred prior to termination, then the agent is entitled to their commission. If this provision is inserted in the Agency Agreement, be sure to require that the agent supplies a list of publishing houses where the manuscript has been submitted. You don't want both your old and new agent to be entitled to duplicate commissions for the same work.


COMMISSION


The standard in the industry for domestic book publishing and performance rights is 15% of the gross amount payable to the author. The commission on foreign rights is 20%. These rates are generally non-negotiable.


Remember, the publisher remits royalties directly to the agent. The agent will then deduct their expenses (photocopies, postage, etc.) from the proceeds, and will remit the balance to the author. Accordingly, the contract should provide: that the agent will send the money to author within 10 days of receiving the royalties, the funds will be on deposit in the firm's client's trust account, and the author will receive an accounting of the monies and royalty statements. Further that upon the termination of the Agency Agreement, the author and agent will be paid directly by the publisher. Also, be sure to require that the agent obtain permission from you for expenses exceeding a certain amount. You don't want any surprises for Fed Ex shipping expenses to China.


NO POWER OF ATTORNEY


Do not permit the agent to sign any documents on your behalf. They are your agent, not your power of attorney. You want to review every shred of paper related to your work, especially the publishing agreement and the movie option.


ZIPPER CLAUSES


To sum up the Agency Agreement, there are a few final recommendations. First, agree to submit any contractual disputes to the American Arbitration Association because it's cheaper than litigation. Second, remove any Assignment Provision as you don't want your Agency Agreement assigned to another literary agency without your approval. Also, add a provision that the agreement is cancelled in the event of the death, disability or bankruptcy of the agency or agent. From personal experience, I can attest you that you don't want to married to an agency that is going down the tubes. My final suggestion is that it doesn't hurt to have a lawyer take a quick peek at the Agency Agreement.


Armed with these tips, you will be in charge of your career and in control of your destiny as a soon-to-be-published author.

 

Congratulations! You're no longer a free agent! It's time to sign on the dotted line and best of luck! Play ball!

 

This article was previously published in the March 2020 issue of InSinC, the Quarterly newsletter of Sister In Crime.

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