Agent contract advice

[Quickbread]

Hi all,

I'm poring over my potential agent's contract, and most of it reads as standard, but I'm not well-versed in these things. A couple of clauses stand out, though. I'll ask the agent, but before I do, I want to learn what's standard and acceptable, and what's potentially troublesome.

<<EDITED TO DELETE SPECIFICS, SORRY.>>

I know there's a lot here. Any thoughts or info would be appreciated. I'm also running the contract by an attorney friend who's good at contracts but doesn't know the standards in agenting and publishing.

[victoriastrauss]

It's very difficult to evaluate a contract without seeing its actual language (if you'd like to send it to me, I'd be glad to take a look and give you more specific--and non-legal--commentary: beware [at] sfwa.org). But with that caveat,

Originally Posted by Quickbread

1.) This contract is between the writer and the agency, not the agent (who's the president of said agency). Is this problematic? If he ever stepped down or became incapacitated, and I lost my champion, what would happen to my rights sold/deals in the works/monies, etc?

That's standard. There are a bunch of scenarios for the agent leaving, but the bottom line is that you'd likely have the opportunity to partner with another agent at the agency, or to terminate your contract (in which case the agency would still rep any still-in-force contracts it had brokered for you). Sometimes an agent moves to another agency, or starts their own agency, in which case you might be able to go with him/her. (Make sure there's a termination-at-will clause in the contract.)

2.) It asks for exclusive worldwide appointment to counsel, advise and negotiate for dealings on "all of my literary material," which is described as books, stories, recordings, scripts, and some other things. Is this too broad? What if I want to sell an essay or submit a short story to a magazine?

What other things?

Literary agencies don't usually rep individual stories or articles--not lucrative enough. In practice, this likely just means books, if that's what you primarily write. If one of the items makes you uncomfortable, ask the agent if you can cross it out. Agencies are often willing to negotiate their contracts.

3.) Termination: Looks standard, cancelable on 30-days' notice; but there's no stipulation for the agency's bankruptcy, dissolution, or the agent's loss of ability to act on my behalf. Should I ask for this? Does anyone have sample language?

See this article by lawyer Daniel Steven for a suggestion. (Bankruptcy clauses often are not enforceable.)

4.) The 15% applies to all material sold during the contract term or up to 6 months afterward "and any and all additional rights deals (including but not limited to performance rights), modifications, substitutions, replacements, extensions and supplements thereof and options contained in any of the same, regardless of when made and regardless of by whom negotiated."

Does this say what I think it says: that if the agent succeeds or fails to sell my book, we later part ways, and my next agent sells the film rights to that book, agent #1 would get 15%? Is this standard?

It's hard to tell without seeing the entire clause. Could you paste that in?

5.) This contract states the agency receives 15% for my paid readings that it negotiates, and 5% if I use a separate speaking agency.

Wait, what? Does this agency have a speaker's bureau?

6.) Accounting. There's no accounting clause and nothing about sharing financial activity and statements for the author's monies. Should I ask for this, or is it a given.

There absolutely should be an accounting clause to ensure you're paid promptly and the agency provides you with at least annual accountings. If this isn't included, that's weird and possibly problematic.

7.) Expenses. Looks standard, but no limit or pre-approval is specified. It does stipulate that itemized receipts will be provided for any expenses. When I asked the agent on the phone about fees, he said there usually are none unless money needs to be wired.

You should be charged only for "unusual" expenses, and there should be an amount for any individual expense (say $50) for which your approval should be sought. (With everything done by email these days, expenses should be minimal--the most expense my agency ever incurs is buying books or ARCs to send to co-agents.)

8.) How long does an agent continue to earn on rights they've sold? Is it for the life of the publishing contract? Copyright life? The contract doesn't stipulate, so I'm wondering how that usually works.

The contract should answer this question. An agent should have commission rights ONLY for the life of the contracts s/he brokers (this usually includes any contracts stemming from that, such as foreign rights licenses). If the agent wants commission for the life of copyright, or says that selling a book for you gives him/her the right to be the agent for that book in perpetuity, that is not good.

Can you paste in the scope of representation clause and the duration clause (if they're separate)? Usually at the beginning of the contract.

I'm also running the contract by an attorney friend who's good at contracts but doesn't know the standards in agenting and publishing.

Your friend likely won't know how to advise you. Author-agent agreements--like publishing contracts--are very specialized documents with terms and conditions not found in other contracts. Someone who isn't familiar with them may not recognize non-standard language, or realize if something that should be in the contract has been left out. They may also want to add things that aren't typically included.

- Victoria

[Undercover]

I agree with V. You should definitely have something about accounting. How will you know exactly what your books rakes in if you can't see the statements? How would you even do your taxes then? They could be giving you anything and it could be much more if they hide that information from you.

Just be careful, hope it works out for you.

[Quickbread]

Originally Posted by victoriastrauss

It's very difficult to evaluate a contract without seeing its actual language (if you'd like to send it to me, I'd be glad to take a look and give you more specific--and non-legal--commentary: beware [at] sfwa.org).

I actually emailed you on Friday and got the auto-response, so thanks for your thoughts here. I'll send the contract, but I'm supposed to contact the agent by Tuesday, so I totally understand if you can't read it by then.

What other things?

I'll post the entire scope clause but will delete this and the others quoted below after a few days. So please requote sparingly. I'll label them all.

A.) It says, <<DELETED FOR CONFIDENTIALITY, SORRY.>>

It's hard to tell without seeing the entire clause. Could you paste that in?

B.) DELETED FOR CONFIDENTIALITY, SORRY.

Wait, what? Does this agency have a speaker's bureau?

Looks like it.

There absolutely should be an accounting clause to ensure you're paid promptly and the agency provides you with at least annual accountings.

It does say money will be paid to me within 14 days. What's missing is a stipulation that I'll get a statement or annual accounting tally. I was thinking of something more detailed than a 1099, like an itemized list of all income and payout activity. I should get something like that at least annually, right?

The contract should answer this question. An agent should have commission rights ONLY for the life of the contracts s/he brokers (this usually includes any contracts stemming from that, such as foreign rights licenses).

Hmm, now that I'm reading this again, perhaps this is addressed in quoted clause B.

Can you paste in the scope of representation clause and the duration clause (if they're separate)?

C.) The duration clause states, "DELETED, SORRY."

Your friend likely won't know how to advise you. Author-agent agreements--like publishing contracts--are very specialized documents

I was thinking the same thing. So, extra thanks to you for sharing your expertise!

[victoriastrauss]

Got the contract; just sent you a response.

- Victoria

[Quickbread]

Thank you so much, Victoria!

So as far as telling the agent I'd like to accept his offer and asking for contract tweaks, can anyone tell me the protocol for contacting him? Should I write it all up in an email? Email and ask to schedule a call? Pick up the phone and call unannounced?

Man, I feel like I've got a lot to learn.

[Old Hack]

I'd email him, so that he has all your requests before him and can respond to them after having given them some thought.

[Quickbread]

Sounds good.

One more question: Do I suggest the actual verbiage changes on the contract or just raise my questions/concerns and then let his agency make the changes to it?

[Old Hack]

Either would be ok, but the latter is probably more likely to lead to further rounds of revision, I'd have thought.

[victoriastrauss]

I'd raise the questions and concerns first, and see how they respond. They may suggest something that you can tweak, or may ask you what you'd suggest.

- Victoria

[Quickbread]

Hmm, well, I already emailed saying I was pleased to tell him I wanted to accept his offer and that I was attaching the contract with a few small additions (for clarification of some details) and questions in the margin. I also asked if he had a few minutes to talk through it.

I asked one of his writers if the agent's open to contract tweaks and he said yes. I hope I didn't overstep by inserting edits without asking first. They seemed pretty minor and minimal. And I did half-ask, thinking we'd talk about them and finalize verbiage together.

But what do I know? I'm such a noob. I hope I didn't ruin the relationship before it even starts. I need to chill out, right?