What’s an Author-Agent Agreement?
Today let’s talk about the agreement between the writer and the agent, known as an Agency Agreement. This is different from a publisher contract. The agency agreement formalizes the working relationship between you and your agent. It can be simple and relatively brief (the one we use at Books & Such is three pages) or it can be more complicated.
Here are a few things the agreement might specify. Your agreement might not cover all these points, or it may cover more.
→ The length of time the agreement is in effect (term).
→ The commission percentage you’re paying the agent (usually 15% plus an additional 5% to 15% if there is an international subagent involved).
→ Author and agent’s obligations with respect to the agreement.
→ A clause giving the agent exclusivity in representing your work.
→ A specification of exactly what rights the agent will handle as well as the territory (usually World).
→ Which works the agent is representing, and any exclusions, i.e. if there are any of the author’s works that the agent will not be representing.
→ Reasons the agreement can be terminated and method of termination.
→ If agency is collecting monies on behalf of author, the agreement should state the agent’s policy for disbursing funds to author.
→ How disputes are to be handled.
→ What will happen in the event of the agent’s death, disability or bankruptcy.
→ How often the agent will provide an accounting to the author.
→What happens to projects the agent has sold to a publisher, in the event of the author-agent agreement being terminated. (The agent usually remains agent-of-record on that book for the life of the copyright.)
Here are a few things to consider before signing:
→ Any fees the agency will charge the author. Legitimate agencies sometimes charge for “extraordinary expenses” (such as international couriers or large amounts of photocopying) but only with the author’s prior written approval of the expense. Never sign with an “agent” who charges a “reading fee.” Be cautious about anyone who charges for routine office expenses.
→ I recommend avoiding a clause that gives the agent the power to sign contracts or checks on your behalf. If this becomes necessary later on, and you have developed trust in your agent, it can always be added.
→ Some agents keep their claim on your unsold project even after you’ve terminated the agency agreement. That is, if your agent doesn’t sell the project, you terminate with your agent and later sell the project, the first agent still gets 15%. This is legitimate and ethical with some reasonable limitations; for example, the first agent gets 15% if you later sell the project to a publisher to whom the agent had submitted your proposal; or if you sell it to anyone within the next two years. Some agents will want to be the agent-of-record on a project forever into eternity. Watch for language that gives the agent “irrevocable, exclusive” representation on a project. There should be reasonable limits on their representation of your work.
What if your agent doesn’t want to do a signed agreement immediately?
Some agents, with new unpublished authors, will not go to a formal agreement at the outset. Instead they’ll work from a verbal agreement. This doesn’t necessarily indicate any lack of ethics or a sign of a fraudulent agent, but you may be uncomfortable with it. You may feel it’s not professional to move ahead without a formalized written agreement. If you find yourself in this situation, speak up and find out why they don’t have a written agreement, and only go with that agent if you’re comfortable with who they are, their track record, etc.
What are your thoughts on Author-Agent Agreements? Any questions?
Today on the Books & Such blog:
Old-Style Readers vs. New-Style by Janet Grant
[…] STUFF Does the agent use a written author-agent agreement? (See this post.) What happens if either the agent or the client wants to end the relationship? If the agent/client […]
The contract with the agent is signed. The book proposal has been sent out to several publishers/editors. How soon is too soon to contact the agent to see what progress is being made on garnering interest in the manuscript?
Hi Katie! My personal opinion is that too soon would probably be the day after you hear. Give the agent time, then maybe a month or so, use your judgment, ask them how it’s going.
Thanks Joyce. I did wait a bit, and now we have a good line of communication open, I am learning patience . . . again.
I have had an agent for 15 years, during which time 8 of my books were published with small houses. For important reasons, I recently terminated my author/agent agreement. My agent followed up with a revised agreement that would allow her exclusivity on the 2 publishing houses that published my previous books. I hired an attorney to help me decipher the legalities of such an agreement. Have you heard of agents procuring exclusivity with houses? I am seeking a new agent and I am concerned that the new agent would not be comfortable with this sort of arrangement. Thank you for your time!
My friend has gone above and beyond for her agent in writing and polishing a book proposal, but now – a year post contract date – Mr. Agent has made very little progress with placing her project.
Because her story is time-sensitive (major current events), she believes it is best to terminate her agent / author agreement and look elsewhere for representation.
Any feedback on the following is greatly appreciated: 1) When considering a new client, how much weight is placed on the fact that the author has terminated a previous agreement? 2) Should author mention this terminated agreement when querying a new literary agent?
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My only advice is: Be sure you like your agent before you sign!
On a more serious note, my husband is a lawyer, so he reads over my contracts first. He actually helped “edit” the contract with my first agent. So I trust him to keep me out of hot water. Grin.
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[…] Rachelle Gardner, another Books & Such agent, offers a basic overview of the author/agent agreement. […]
Verbals would make me nervous. I like things in writing. I like clear and concise goals. It helps me know what direction to go. Verbals are okay, but with a verbal there’s room for misunderstandings.
This was a very helpful post, thanks for sharing. As an agent, you handle publishing contracts all the time. Have you ever thought of doing a post like this one, but about publishing contracts? I’ve had a request for my full manuscript from a small press, and I am a touch worried that I won’t know how to deal with it if they offer me a contract. Do you have any advice to other writers who are in the same boat?
[…] Rachelle Gardner on What’s an Author-Agent Agreement? […]
My take on these clauses, based on my own experiences (and very open to hearing your reply to these).
Term: should always be at will. If either party decide they’re a bad match, you don’t want to be stuck for another year or more.
Exclusivity: This clause is never in an author’s favor. Should be struck *unless* the agreement is for one specific work. You don’t want to be unable to market a book just because this agent does not represent that genre, or doesn’t like that sort of book. Likewise, some agents are trying to apply this clause to self published work these days, which is of questionable ethics and legality.
Works after termination: already ruled by NY courts unsustainable. If a work is not actively in submission when a writer/agent arrangement is terminated, the agency will have a very difficult time winning a suit to get money from its sale. It’s probably possible for an agency to build a clause which would be legal, but never in the writer’s best interest to sign such an agreement.
Agent signing contracts: Again, NEVER is this in a writer’s best interest. Power of attorney should generally be limited to family or sometimes specific licensed professions. Not to business partners, no matter how long standing.
Agents collecting money: Split payments from the publisher should be a standard insisted upon by all writers. It costs the publisher nothing to do; publishers are perfectly happy to split payments. There is never a benefit to the writer to have the agency collect funds and then disburse the writer’s share. Consider how your agent would react if you offered to collect all the money and then send the 15% on to the agency. They’d react negatively – as well they should, for the food of their business. So should the writer.
Other than that, pretty much agree with the rest. A good overview, certainly.
Very helpful information. Thank you for taking the time to share
it.
Rachelle, this makes a great deal of sense.
When an agency agreement is terminated it is important to make sure both parties are reasonably protected.
I do wonder about the situation when the first agent pitches a project to a publisher and is turned down and then the second agent re-pitches it to the same publisher and is accepted. It would seem unfair to me for the first agent to earn a commission since his or her efforts were unsuccessful and it was the second agent actually sold the project.
Of course, this is just a thought from someone who is on the outside looking in.
I would imagine that if you were in the last scenario and really uncomfortable with a lack of written agreement, then at the very least you could draw up a temporary one for a short duration, and then create a more permanent one later if you and the agent decide to continue the relationship. Is this sort of thing done with any frequency?
“…the first agent gets 15% if you later sell the project to a publisher to whom the agent had submitted your proposal; or if you sell it to anyone within the next two years.”
How is this “legitimate and ethical”? The agent may have submitted the proposal, but she failed to sell it. And why should she profit from someone else’s efforts over the next two years?
“Some writers don’t realize how much work agents do with no payment until the manuscript sells.” Some agents don’t realize how much work writers do with no payment until the manuscript sells.
I was wondering this too. I get the part about if it’s someone the agent had submitted to. But I don’t understand the within the next two years part. How does that work?
I’m interested in the answer to Christine Dorman’s question above. Actually, I’m interested in all the onfo and comments!
Thank you for this excellent information, Rachelle. The point about the first agent getting 15% even if the relationship has been terminated is not something I had thought about, but it makes sense. As you said above, some writers don’t realize how much work agents do with no payment until the manuscript sells.
I have a question that may or may not fit in here. You brought up the topic of the first publication of a manuscript. I have been wondering about how blogging and online excerpts of a manuscript affect first publication. Most publishers want first time rights (at minimum). Some writers now put excerpts from their blogs or chapters on a site such as Goodreads. Some writers give away free copies of a manuscript in order to market. I am doing a couple of these myself in order to build a platform. Will I be able to submit to an agent a novel that I have partially published online or do I need to use online work just as a way to build an audience, and then submit a different work?
I’ve never been sure how publishing excerpts of an un-contracted (often unfinished) novel is supposed to help an author’s platform. I recommend against it.
Thank you for responding. I appreciate the guidance. I felt uncomfortable about putting excerpts online for a few reasons. Now I know that I should listen to my intuition. Again, thank you for your generosity and help.
If I do not like working with an agent, what other options do I have? What do I lose by not having an intermediary?And what do I gain?
And I would also like to know what Cynthia Herron is talking about!
Gulnar, this entire blog (1000+ posts) exists partly for the purpose of showing authors the breadth of knowledge that agents have, which should show you the advantages of having representation.
If you don’t want to work with an agent, then I guess you’re on your own!
I’ve heard of mid-list authors self-publishing their out of print works. Where does the agent fit into that? I guess what I’m asking specifically is whether an agent would receive part of the profits made from the self-publishing or not. More specifically, would it fall into the scope of what an agent does to lend a hand in that process?
Josh, it depends on the agent.
Whew. My brain is a little frazzled right now. But I think I will be bookmarking this and coming back to it when I decide to get an agent.
Good to know. I would only addf have someone you trust read through it as well.
Another thing to add to your list: Hire a contract lawyer who’s familiar with agency contracts. You need someone who’s on your side.
Make that WRITERS need someone who will look after their interests.
Great advice in one fell swoop. Thank you so much, Rachelle.
Patti
It was a great day to celebrate. It made me want to encourage others, “Keep on keepin’ on!”
And later, I regretted eating that third piece of chocolate. But the regret quickly passed. 🙂
I have heard in the past that problems have arisen over derivative works (if that’s the right term—I mean sequels, series, spin-offs, etc.) between agents and authors who have parted ways before the later works come out. The agent still gets a commission on those works, even though the agent no longer represented the author. For this reason, I wonder why agent-author agreements aren’t for specific works, with any later works to be added by addendum if the agent and author so agree. I write a bi-monthly e-zine column, and each column has a separate contract, even though it’s the same author, same e-zine, same subject matter/length/rights/etc.
This is not a burning issue, but crossed my mind as I read your blog post.
David, the e-zine is like a publisher, whereas your agent is more like a business partner (with a 15% interest in the “company”).
There are certainly agents who have contracts on a project-by-project basis; I imagine this is even more likely in non-fiction. I work exclusively with fiction, though, and while each individual book is important, I’m more focused on building a client’s career as a whole. I want to discuss each project they look to undertake and have us both reach a decision on what the best path for them would be.
However, our agency’s clause doesn’t include derivative works. If author or agent wish to terminate the relationship, they are free to do so, and the agent doesn’t get a percentage on any work they didn’t sell. So we don’t face that issue.
Very nice summary for those of us who want agents someday! Thank you. 🙂
Thanks for the information. There is so much to know.
Saving this one for when I–hopefully–need it in the future! Thanks.
Really great inclusive post on a sketchy issue for me, thanks!
Excellent information. I’m looking forward to the day I need it. Thanks, Rachelle.
Very good info- I’m going to book mark this page for future reference.
Rachelle, thanks for explaining things to look for and beware of in author-agent contracts. Your comments make a lot of sense.
There is lots to learn and there is nothing wrong in going to a lawyer to go over it before you sign. I also didn’t know that the agent can get that 15% from the book they sold for the life of the book. I don’t know if I like that or not.
Yes, the agent gets 15% for the life of the publishing contract, and any subrights contracts. And if you don’t know whether you like that, I assume that’s because you’ve never worked with an agent and don’t know how much work they do. 🙂
But of course, it’s your choice – you never have to work with an agent if you don’t want to.
Thanks for the information. It’s nice to get an insight into what to look for if this ever happens for me.
I have one question. Could you give us an example or two regarding ‘Author and agent’s obligations with respect to the agreement’? This seems rather broad to me and I’d like to know what to expect.
Thank you!
Um, well it is rather broad because this is a blog post, not an agency agreement! 🙂
Agent’s obligations may include helping to polish proposals; shopping projects to publishers; negotiating contracts, etc.
Authors obligations may include writing books and proposals; providing agent with sellable materials, etc.
Thanks! I knew my question was broad as well, and could probably take up an entire blog post or two on its own. It’s good to know what to expect.
Contracts make me twitch. Between the fine print and convoluted language, I sometimes feel like I’ve mistakenly hit the SAP button on the TV. Keep in mind I only have small-scale freelance experience here, but those seem to be some of the worst offenders. In fact, I’m pretty sure there’s a small, dog lover magazine in Massachusetts with rights to my left kidney. The best advice an editor friend gave me regarding a contract with an agent, publisher or otherwise, “Don’t be afraid to ask questions or seek legal advice before signing on the dotted line – it only reinforces your reputation a professional.”
I sure liked signing mine! 😉
~ Wendy
I’m 100% with you, Wendy! I haven’t spent a single second regretting the ink I put down on that paper.
Thank you for posting this. I’m in the process of attempting to gain representation. It’s helpful to have these points so concisely stated—much easier to decipher than the “how-to” books.
Hi Rachelle,how I wish I found your blog a few years ago before I had an offer of representation from an agent who did not want a contract, and then left agenting a few months later-I guess that is why she did not want a written obligation. I also had offers from 2 agents with very complicated contracts, unacceptable, non-negotiable fees or clauses and after reviewing with a lawyer decided to pass on both … sigh. It was very hard to walk away, but it just did not feel right for me.
I have a question related to movie rights. Say someone wants to turn the book into a film. Does the agent usually represent the author in such an undertaking or is that strictly a matter for the publishing company?
Hi PJ- Assuming that you kept film rights when you signed with the publisher the way film rights work is that your literary agent will work with a sub-agent (film agent). At this point they typically take 20% (your agent gets 10 and the film agent gets 10).
Depends on if you reserved the rights, or the publisher has them. (As Carol said.)
My thought(s) on Author-Agent agreements:
1. Read the thing really slowly.
2. Read it again.
3. Sit down and discuss the agreement with your agent — requesting that she (or he) talk really slowly.
*snort*
I’m only half-kidding.
I’m a writer, not a lawyer. But I do know I need to read any contract I sign. I need to understand it. I also depend on a trustworthy relationship with my agent so that I know she will help me understand the agreement. If you don’t trust an agent, then you shouldn’t why are you even considering an Author-Agent agreement?
What is a typical length of time established in the ‘term’ portion of the agreement?
Sometimes it’s a one year term (renewable). Often there’s no term, but rather it’s an “at will” agreement meaning either party can terminate according to guidelines established in the agreement.
Ok, thanks very much. Hopefully I’ll have a circumstance in which I can apply the information to in the near future!
This is good info, Rachelle! Thank you!