Q about clause in agent contract

Katharine Tree · Oct 9, 2015

Looks like I'm signing with a literary agent. She sent me the contract and there are two clauses I'd like feedback on.

First: that if a work requires substantial line- or structural-editing before it can go on submission, I have to hire and pay an editor to do it. *shrug* Frankly if that happened, I would probably try to fix the work myself, and if I couldn't, I'd give up on that particular work.

Second: the agency is in another country, and the terms of the contract will be enforced by the laws and courts of that country. *shrug* It's a civilized first-world country. The hazards of working with a foreign agency, I guess. (if anyone was going to say: this agent is very well-connected with U.S. publishers, and is American herself).

Thoughts?

WendyN · Oct 9, 2015

Katharine Tree said:
First: that if a work requires substantial line- or structural-editing before it can go on submission, I have to hire and pay an editor to do it. *shrug* Frankly if that happened, I would probably try to fix the work myself, and if I couldn't, I'd give up on that particular work.

I'd consider this a red flag. I checked the agency agreement I had with my former agent, and there was NOTHING in there about any expectation or suggestion regarding hiring a third-party editor. How exactly is this worded? Who determines if the writing requires an edit like that? Who determines which editor is used? I understand an agency not wanting to foot the bill if you decide to hire an outside editor on your own, but this sounds like it's something they could require you to do if they don't think your writing's up to snuff (in which case, why are they signing you on?)

Katharine Tree · Oct 9, 2015

Here is the exact wording:

If, in the judgment of Agency, the Work is in need of substantial line or content editing before it is submitted to prospective publishers, Author will retain an outside editor for that purpose, at Author’s expense. Alternatively, Author may employ Agency to perform such editing work at an agreed cost, which will be in addition to Agency’s commissions and expenses. In consultation and collaboration with Author, Agency will determine when the Work is ready for submission to prospective publishers.

This agency has been around since the early '90s and represents dozens of authors *shrugs*.

It looks to me like something for the agency to point to if they don't want to feel obliged to put something on submission ... ?

Sam Argent · Oct 9, 2015

Katharine Tree said:
Here is the exact wording:

If, in the judgment of Agency, the Work is in need of substantial line or content editing before it is submitted to prospective publishers, Author will retain an outside editor for that purpose, at Author’s expense. Alternatively, Author may employ Agency to perform such editing work at an agreed cost, which will be in addition to Agency’s commissions and expenses. In consultation and collaboration with Author, Agency will determine when the Work is ready for submission to prospective publishers.

Click to expand...

NOPE.

WendyN · Oct 9, 2015

Agencies have no obligation to put any work on submission. My former agent told me flat-out she didn't think one of my manuscripts would sell; no contract clause necessary. She also went through FOUR rounds of edits with me on my first manuscript before putting it out on submission. The cost to me: $0. Not all agents are editorial agents, but NONE should be charging you for editorial work they do on your manuscripts -- in trade publishing, money flows TO the author. Or, to put it another way:

Preditors & Editors said:
"Any charge made to the author that is payable prior to the sale of the manuscript to a publisher, however characterized by the agent, is a "fee" and represents inappropriate conduct not in the author's best interest." (http://pred-ed.com/pubagent.ht)

At BEST it's a conflict of interest; at worst, it's a scam. Have you checked Preditors & Editors and AW threads for this particular agency?

Sheryl Nantus · Oct 9, 2015

Nope.

My agents work with me to edit my works before they go out. They don't charge me a fee.

Echoing the urge for you to go to Bewares and check them out - sounds rather fishy to me.

JetFueledCar · Oct 9, 2015

Do NOT sign with them. Don't do it. Run the other way.

Katharine Tree · Oct 9, 2015

Interesting. The agency is listed on Preditors & Editors with no warnings, there is an AW thread about the agency in which no one has anything bad to say and several people had queried this particular agent with toes and fingers crossed. She's listed on Query Tracker and Publisher's Marketplace.

The agent has made a couple of broad suggestions about how I should tighten my story before we go on submission. Because I haven't signed, these have been made for free.

Dennis E. Taylor · Oct 9, 2015

WendyN said:
Agencies have no obligation to put any work on submission. My former agent told me flat-out she didn't think one of my manuscripts would sell; no contract clause necessary. She also went through FOUR rounds of edits with me on my first manuscript before putting it out on submission.

Oh, thank God, it's not just me. :hooray:

Dennis E. Taylor · Oct 9, 2015

If you think about the mechanics of getting an agent, though, this might not be as much of a red flag as it first appears. Generally, an agent will either 1) love the work and sub it immediately, 2) reject the work (and you) for reasons that may include bad editing/grammar/punctuation/passive voice/whatever, or 3) sign you because your writing has a great voice, but needs work mechanically.

In case 3, what are their options? They aren't editors, and they don't have time to do line-editing anyway. I see no reason to expect an agent to pay the hundreds to thousands of dollars to do a proper edit. I think if I was an agent in that position, I'd say up front, "Look, you've got great potential, but your work isn't ready for submission. It needs a thorough editing. I can submit it as is, but it probably won't fly." The safe thing for an agent to do would be R&R, except if they really like your voice, they might not want to lose you.

Anyway, this is all rambling. I went through several editing passes with my agent, but it was developmental stuff, not line-editing.

cornflake · Oct 9, 2015

Katharine Tree said:
Looks like I'm signing with a literary agent. She sent me the contract and there are two clauses I'd like feedback on.

First: that if a work requires substantial line- or structural-editing before it can go on submission, I have to hire and pay an editor to do it. *shrug* Frankly if that happened, I would probably try to fix the work myself, and if I couldn't, I'd give up on that particular work.

Second: the agency is in another country, and the terms of the contract will be enforced by the laws and courts of that country. *shrug* It's a civilized first-world country. The hazards of working with a foreign agency, I guess. (if anyone was going to say: this agent is very well-connected with U.S. publishers, and is American herself).

Thoughts?

If it says you have to sign an editor that isn't normal and doesn't look like you'd have the option to not.

Katharine Tree said:
Here is the exact wording:

This agency has been around since the early '90s and represents dozens of authors *shrugs*.

It looks to me like something for the agency to point to if they don't want to feel obliged to put something on submission ... ?

Looks to me like a way for a scammy agency to make money. Dozens, eh? What're their sales this year? To whom and how many?

Angry Guy said:
If you think about the mechanics of getting an agent, though, this might not be as much of a red flag as it first appears. Generally, an agent will either 1) love the work and sub it immediately, 2) reject the work (and you) for reasons that may include bad editing/grammar/punctuation/passive voice/whatever, or 3) sign you because your writing has a great voice, but needs work mechanically.

In case 3, what are their options? They aren't editors, and they don't have time to do line-editing anyway. I see no reason to expect an agent to pay the hundreds to thousands of dollars to do a proper edit. I think if I was an agent in that position, I'd say up front, "Look, you've got great potential, but your work isn't ready for submission. It needs a thorough editing. I can submit it as is, but it probably won't fly." The safe thing for an agent to do would be R&R, except if they really like your voice, they might not want to lose you.

Anyway, this is all rambling. I went through several editing passes with my agent, but it was developmental stuff, not line-editing.

There are other options besides those three; I don't think many agents sign people they believe need perpetual line editing; the quote from the contract doesn't specify, it in fact includes more than one possible issue.

Katharine Tree · Oct 9, 2015

Okay. Here's another part of a clause to ask y'all about. Is this normal? (partial clause only)

Agency will remit to Author within fourteen (14) days of receipt all monies due Author after deduction of the commission set forth below and, at cost, extraordinary expenses incurred on Author’ behalf.

JetFueledCar · Oct 9, 2015

Does it define "extraordinary expenses" anywhere? Does it limit how much can come out of a single check? Does it give an estimate of how much those "extraordinary expenses" might be? Sounds to me like they're setting you up to get no money, but I'm a cynic. I know some agencies deduct the cost of printing manuscripts for submission and such clerical expenses from checks (or used to, I don't know if they still send hard-copy MSes), but "extraordinary expenses" makes me squint.

kkbe · Oct 9, 2015

Do be careful about signing. I don't know enough to comment on the foreign contract issue, but I'm wary of the agency policy of making you responsible for editorial costs. Per WritersRelief.com (http://writersrelief.com/blog/2014/12/avoid-literary-agency-contract-dangers/ ):

Good literary agents do not charge signing fees, reading fees, or editorial fees. Bad literary agents do.

Dennis E. Taylor · Oct 9, 2015

Y'know, if they represent dozens of other writers, then presumably there's a list of same on their web site. Look at the authors, look at their books, see how they're doing. Go to the authors' blogs and see if they're screaming mad at their agent.

If you can't get at a client list, run.

Katharine Tree · Oct 9, 2015

Authors and books are real. There are blogs. Nobody's screaming. Everybody seems pretty happy about everything.

I emailed the agent, asking the editing clause to be struck and the other one, about extraordinary expenses, to be modified so that no expenses that will be charged to me can be incurred without my prior consent. We'll see how it goes.

Treehouseman · Oct 11, 2015

Stinks of scam. Wheew!

JetFueledCar · Oct 11, 2015

Katharine Tree said:
Authors and books are real. There are blogs. Nobody's screaming. Everybody seems pretty happy about everything.

I emailed the agent, asking the editing clause to be struck and the other one, about extraordinary expenses, to be modified so that no expenses that will be charged to me can be incurred without my prior consent. We'll see how it goes.

Definitely good changes to make. Let us know what they say!

Katharine Tree · Oct 11, 2015

Will let you know how it goes.

Treehouseman · Oct 11, 2015

It's so difficult to say. I know an agent personally who has a $$ rep on P&E, but that was for a trilogy he sold (badly) back in the 1990s. He's definitely "legit" but you'd be better off putting your MS in a bottle and tossing it off the side of a pier, you know?

You may be lucky, and it's kind of a boilerplate contract for paid creative services. But you now possess some interesting gossip...!

Katharine Tree · Oct 12, 2015

The agent got back to me. She will have the lawyers add a clause about not incurring expenses without my prior written consent (and claims that in all the years she has worked there, the agency has never charged an author "extraordinary expenses"), and she will strike the clause about employing their editors to fix a MS before submission, though she cannot strike out the agency's right to request I have an editor work on a MS before submission.

This sounds aboveboard, to me. As I said, the rest of the publishing world seems to think well of this agent/agency. There is nary a complaint anywhere online.

Captcha · Oct 12, 2015

Are there any terms in the contract requiring you to use the agency for a certain period of time, or for all your manuscripts?

I mean, I can see a situation in which an agency would refuse to submit an MS in its current state and might suggest that an author work with an editor (of the AUTHOR's choice) or find some other way to 'fix' the MS.

But to have that included as a contract terms seems really strange, to me. It implies an obligation rather than a suggestion. (Because if it's just a suggestion, why does it need to be in the contract?!?)

So what would happen if they "required" you find an editor, and you refused? I'd think it would be completely within their rights to refuse to work on that manuscript, but is there anything in the contract that would prevent you from doing what you wanted with the MS? Like, could you rewrite it yourself, could you submit it to another agent without severing your relationship with the original agency, could you submit it to publishers on your own without paying the agency 15% of any sales, etc.?

Katharine Tree · Oct 12, 2015

The contract is for this manuscript only, and I have the right to sever the representation for whatever reason, given 30-day warning via certified mail. So if we did lock horns over editing, I could get out.

There are two things about this publishing house: one, they deal with a lot of translated and non-native-speaker works, and two, they deal with a lot of nonfiction. These facts, combined with the agent's willingness to strike the part about using their in-house editor, pretty well eases my mind. There is another clause that says the agent will promote/sell/whatever the manuscript to the best of her ability; the editing clause gives her something to point to if she thinks a manuscript isn't in shape to submit.

So I think I'm good. I think I'm going to sign the modified contract.

Q about clause in agent contract

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