After you drop your agent...

tengraceapples said:

Hi!

After I dropped my agent, she told me about a clause in the contract that says if i place the book with any house she had spoken to with in 12months of the termination she is still entitled to her cut. Is that standard?

Thx for info

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Standard or not, did you read the clause in the contract when you signed it?

Yes, to the best of my knowledge, that's pretty standard. After all, she introduced the work to those publishers; why shouldn't she get her cut?

Depends on what 'spoken to' is interpreted to mean. And if it's in your contract and you signed it, not much you can do now.

The wording of your post is a little odd, but yes, I've seen versions of that type of clause. They usually state something along the lines of if you place the book in a house your previous agent subbed to, then they get their cut of the sale.

Theft is what that is, but too many agents insert it into a contract. Read contracts carefully.

Read a contract before you sign it (going forward) and get clarification on anything you don't understand. Best practice is to have your own lawyer look a contract over for you; it may cost you something up front, but it can save enormous time, trouble and money in the future.

Most contracts creating an an agency type of relationship have some protection for the agent, in the event they use their time, contacts and efforts to obtain a deal for the client, who then fires them to avoid paying the commission on the work. It's a legitimate concern for anyone (lit agents, real estate agents, artists' reps) who is paid by a percentage of the deal.

That said, if you place the book and you think your ex-agent is unreasonably claiming her right to be paid under the contract, I recommend you consult with a lawyer who is familiar with publishing. Depending on the circumstances, you might have some recourse.

This is why you need to know which editors/imprints your agent subs to, so any new agent can avoid duplicating the submission.

If your novel sells to an editor who was approached by your former agent, he/she is entitled to the commission for the sale. It was derived from their work.

If your novel sells to an editor who was approached by your former agent, he/she is entitled to the commission for the sale. It was derived from their work.

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Maybe, but not necessarily. It would depend on what is meant by "approach" (or by whatever the descriptive word in the contract is.)

Hypothetically, what if the agent made a phone call to her best contact at a publisher on Monday and left the message, "call me back, I have something for you," the contact doesn't return her call until a week later, by which point the client has dumped the agent.
Agent says, "oops, situation has changed, sorry, let's have lunch!"
Eleven months later, new agent presents book to same contact and book sells. Did the first agent "approach"?

Law school exams are made of questions like this.

But in most cases, one would expect an author not to dump an agent the same week a book goes on submission.

True, but things happen. People don't always behave rationally.

Ketzel said:

People don't always behave rationally.

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Which is why contracts have so many clauses that protect both the writer and the agent/publisher against potential future shenanigans.

I've seen that clause. It's not that uncommon. Wishing you luck as you go forward.

tengraceapples said:

Hi!

After I dropped my agent, she told me about a clause in the contract that says if i place the book with any house she had spoken to with in 12months of the termination she is still entitled to her cut. Is that standard?

Thx for info

Click to expand...

Standard or not, if it's in the contract, it's in the contract.

Now, could you have some kind of legal defense to its enforcement? Maybe...longshot, but maybe. BUT, you will need:

1. an experienced attorney's advice; and,

2. to show that contract to your new agent (if you have one) before any deals are made with publishers.

~suki

Ten pubs is no big deal then. Just find a new agent and go to different publishers. If after a year you haven't found a home re-visit those ten.

Honestly I think it's a pretty fair clause. I think it's mostly there to prevent a situation where an agent connects author and publisher, then the author decides to screw the agent out of their 15%. It does make cases like yours difficult, but the agent did do some legwork on those publishers, why shouldn't they be entitled to a share?

tengraceapples said:

Hi!

After I dropped my agent, she told me about a clause in the contract that says if i place the book with any house she had spoken to with in 12months of the termination she is still entitled to her cut. Is that standard?

Thx for info

Click to expand...

It depends on what's meant by "spoken to," IMO. When I parted with my agent, we still had some subs out. If any of those editors bit, he expected the commission. I expected that as well. We didn't have a contract, but he'd done the work, and he definitely deserved the commission.

But there was also an editor he'd talked both book #1 and the then unfinished book #2 up to, and he was still planning to submit #1 to her when we parted. Not only does he not expect a commission if either book is ever submitted to her and sells, but he reminded me about her as we were wrapping things up to mention as a lead for my next agent.

The idea that an agent can claim future commission over a book they've "spoken to" a house about makes me nervous. If he or she is at lunch with an editor pitching a project, and also describes the other projects the writer is working on, could that give the agent claim over their sales to those houses if they part ways before the work is shopped or even finished? If so, that twelve month time limit is pretty vital. As others have said, the language in the contract is important.

Mine specifically waived that clause when I parted ways, but yes, it's pretty common. Twelve months is a bit long in my opinion, though. If you don't have the list, though, you will need it if you're going to query new agents with that work. They will ask for it if the book interests them.

tengraceapples said:

Hi!

After I dropped my agent, she told me about a clause in the contract that says if i place the book with any house she had spoken to with in 12months of the termination she is still entitled to her cut. Is that standard?

Thx for info

Click to expand...

It's fairly standard. It's certainly in my agent contract.

My agency contract said two months, FWIW.

I recently terminated with my agent, too and she sent me a list of who is looking at my book. She said if she doesn't hear from them by the end of the month (as in a sale) she'll pull the books and I am free to submit them elsewhere. If the book sells within the month to the publishers she sent the book to she is entitled to her 15% commission. I'm cool with that.

... doesn't seem fair to me. And except for the situation Drachen mentioned, it doesn't make much sense. Even if a subsequent agent lands a deal with a publisher that a previous agent had pitched that isn't due in any part to the previous agent in the event that the manuscript was rejected. The previous rejection actually makes it more difficult to sell the book to the publisher if anything. Certainly no added edge arises from pitching to a publisher that's passed.

Bearing what Drachen has said, I could see the clause being altered to read:

The agent is entitled to a commission if the book is subsequently sold by another agent or by the author to a publisher the agent pitched if the book was accepted by said publisher. That makes perfect sense. In that instance the agent would be entitled to the full commission as they did the work.