Death of an Agent Clause

mscelina · Jun 15, 2011

Interesting thing happened this morning. I received an addendum to my agency contract--an involuntary termination agreement, which covers the period between my agent's death and me finding a new agent.

I thought this was pretty interesting, considering the contractual nightmare that resulted from Ralph Vicinanza's untimely death--cited in the cover letter from the agency as the event that spurred this new addendum. Obviously, I don't have any problems signing it, but I was curious: are other agencies responding the same way? I would assume this is an issue for the small, single-owner agencies and not the larger ones.

Also, I was aware that the other two agents at Vicananza were opening their own agencies in the wake of Ralph Vicananza's death--and there are some BIG name clients there. I'm just curious: if those clients were contracted to Ralph Vicananza, then are those clients cut loose to find their own new representation?

mscelina · Jun 15, 2011

See? I didn't quibble.

CaoPaux · Jun 15, 2011

'Preciate it.

I revised the title, BTW, to avoid the impression you were announcing the death of an agent.

Terie · Jun 16, 2011

In the wake of what happened at Vicinanza, I'll certainly be looking for such a clause in an agency contract when I finally get to that point. And I am now firmly in the 'I won't go with a "handshake" deal' camp.

shaldna · Jun 16, 2011

I think the incident shook a lot of agents and agencies and writers up, and I think that a clause about the death of an agent is a necessity really. No one lives forever, and stuff happens. No one wants to be left high and dry should something unexpected happen.

This is also why I need contracts. In this day and age a handshake just isn't going to cut it for me, and it won't cut it in a court either. You have to protect yourself.

Jamesaritchie · Jun 16, 2011

shaldna said:
I think the incident shook a lot of agents and agencies and writers up, and I think that a clause about the death of an agent is a necessity really. No one lives forever, and stuff happens. No one wants to be left high and dry should something unexpected happen.

This is also why I need contracts. In this day and age a handshake just isn't going to cut it for me, and it won't cut it in a court either. You have to protect yourself.

I've found the exact opposite to be true. No contract offers many more benefits to the writer in court. Agents, and publishers, typically retain rights because of contracts, and writers typically lose rights because of contracts.

If you have a contract, you better have one heck of a good IP attorney, one with a ton of experience, go over every line of it, and tell you what it really means when this or that happens.

mscelina · Jun 16, 2011

Jamesaritchie said:
I've found the exact opposite to be true. No contract offers many more benefits to the writer in court. Agents, and publishers, typically retain rights because of contracts, and writers typically lose rights because of contracts.

If you have a contract, you better have one heck of a good IP attorney, one with a ton of experience, go over every line of it, and tell you what it really means when this or that happens.

Yes, but a handshake doesn't help you in the case of something unforeseen--like the death of your agent. That's why advising people to work without the benefit of a contract is the epitome of bad business sense. A handshake doesn't give you much legal recourse when the party you shook hands with dies unexpectedly.

There are a lot of authors whose royalties are now tied up with the Vicananza agency, who may or may not find it easy to find alternate representation as a result. Obviously, not King or Hobb, but not everyone represented by the agency was at that level of recognition. That handshake you espouse gives them nothing in the wake of a disaster like this--does it?

ink wench · Jun 16, 2011

Interesting thread. My agency doesn't use a written contract, and I admit it worries me for a few reasons, this among them. I also knew I wasn't going to let the contract (or lack of) dictate which offer of rep I went with (I adore my agent), but I do wish I had one.

Will be following this conversation....

ChaosTitan · Jun 16, 2011

Interesting. I don't recall my agency contract having that sort of clause, and I haven't received an addendum from my agent. But I do imagine it's giving some agents pause.

mscelina · Jun 16, 2011

I just sent off my addendum to my agency contract. The addendum was thorough--addressing royalties and royalty payments (changed the percentages that go to the estate, etc.), the right to immediately pursue new representation and instructions of what to do in the event my agent passes away. Seems to me it's a common sense thing to have--car wrecks or sudden illness can take someone completely unawares, which is exactly what happened to Ralph Vicananza. I suspect that at large corporate agencies, this issue is probably irrelevant, but at single-owner agencies I would think this becomes really important.

*would have inserted a 'my agent is teh awesome!' plug but I think her actions speak for her*

mscelina · Jun 16, 2011

ChaosTitan said:
Interesting. I don't recall my agency contract having that sort of clause, and I haven't received an addendum from my agent. But I do imagine it's giving some agents pause.

I believe that my agent was talking with one of Vicananza's stranded clients at ComicCon and the addendum grew out of that conversation. I also think it's being sent to SFWA as a suggestion/example. But don't quote me on that.

shaldna · Jun 17, 2011

Jamesaritchie said:
I've found the exact opposite to be true.

Yeah, I thought you might.

No contract offers many more benefits to the writer in court. Agents, and publishers, typically retain rights because of contracts, and writers typically lose rights because of contracts.

If you have a contract, you better have one heck of a good IP attorney, one with a ton of experience, go over every line of it, and tell you what it really means when this or that happens.

as opposed to just shaking a hand and hoping for the best?

Did you have an IP lawyer watching that handshake?

shaldna · Jun 17, 2011

While verbal agreements are considered to be legally binding, in my opinion they have no use in anything more complex than getting a guy out to fit a new washing machine, and certainly not in something like publishing.

These days there are so many issues around publishing, so many clauses and sub clauses in contracts, so many rights to keep track of and conditions to be met. Now, that's for ONE book. and that would be difficult enough for one person to remember forever, just in case. Now try and remember all that information for 5 or 10 or 15 books.

And what if something does happen and you end up in court, and it's you and your publisher and all their lawyers and you say they haven't fulfilled and they say 'prove it'

mscelina · Jun 17, 2011

I'm not certain, but I'd be willing to be that a handshake has no unforeseen termination of contract contingencies.

ink wench · Jun 17, 2011

shaldna said:
And what if something does happen and you end up in court, and it's you and your publisher and all their lawyers and you say they haven't fulfilled and they say 'prove it'

My understanding is that handshake agreements usually become written contracts once a book is sold. So your relationship with the agency is spelled out when money becomes involved. (At least that's how it is at my agency, which is a huge, well-established biz.)

There are advantages to no formal contract until that point. There are also disadvantages, and what would happen in event of an agent's death is one of them.

Hillgate · Jun 17, 2011

If a contract's with an individual or sole trader and that individual/sole trader dies then the deceased is not capable of performing the contract and it falls away.

If a contract's with CAA but your particular CAA agent dies then your contract's still with CAA UNLESS you/your IP lawyer puts in a clause to that effect. Which might, with a paranoid agency, make them wonder if you were planning to kill your agent just to get out of your contract.

Reminds me, in a different way, of Robert Altman's great movie 'The Player'.

Don't get any ideas now. Murder's illegal in most states of the US.

Death of an Agent Clause

mscelina

Teh doommobile, drivin' rite by you

mscelina

Teh doommobile, drivin' rite by you

CaoPaux

Mostly Harmless

Terie

Writer is as Writer does

shaldna

The cake is a lie. But still cake.

Jamesaritchie

mscelina

Teh doommobile, drivin' rite by you

ink wench

ray of motherf#%&ing sunshine

ChaosTitan

Around

mscelina

Teh doommobile, drivin' rite by you

mscelina

Teh doommobile, drivin' rite by you

shaldna

The cake is a lie. But still cake.

shaldna

The cake is a lie. But still cake.

mscelina

Teh doommobile, drivin' rite by you

ink wench

ray of motherf#%&ing sunshine

Hillgate

On location