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Vermont Tar Heel
02-18-2010, 07:32 AM
I have a question for anyone with experience negotiating an agency agreement, specifically in the context of a proposal for a series of stories.

I recently got the good news that an agent wants to represent my work. She is a reputable agent that has received good feedback on this board. We are down to one point on the agency agreement that is a sticky one. My proposal is for a series of children's books, three of which are completed. The agency agreement has a two-year term during which there is no termination right (seems long). The bigger issue, though, is whether she would be entitled to a commission on stories in the series that are sold after she is no longer the agent, if down the road either of us does terminate the contractual relationship. She would like to keep a 15% commission on any story sold in this series in perpetuity, even if it turns into a series with a ten-year run (e.g., she wants commissions on books 4-10 even if she only sells 1-3). I can understand why she would like that, but it does not seem appropriate for commissions to be paid on works that are sold and produced after a point at which we are no longer working together.

Another author (with 20+ years of experience and 40+ published stories) I know suggested I absolutely should not accept this provision, pointing out that the project could morph into related ancillary products that leverage the series name, but are still different stories that would require representation. If she continues to be the right agent to sell those works, great, but that decision should not be made today. I thought this was brilliant guidance but am new to the industry and don't want to pass prematurely on an agent with a great reputation, if it comes to that.

I would appreciate any insight that others in this community might have on this subject.

thothguard51
02-18-2010, 08:01 AM
My understanding is that many agents get commissions on a work for the life of the work with the publisher they sold too. Your contract could be for 1-2-3 years, but if the work she sold is still in print, she is entitled to the commission. Now, if in the original contract she agrees to represent you for the first 3 books of this particular series, and sells it to a publisher as 3 book deal, I think she is entitled to commission on all three, even if you dissolve the partnership before the last one goes to print. You may have a two year contract but the third book might not go to print until the third year.

And in most cases, the publisher sends the checks to the agent, who deposits it, keeps their commission and sends the rest to the author, once the check clears. I have been told this too is natural in the industry. So even after the split, so long as the books she sold to the publisher are still in print, she continues to collect checks and takes her commission before sending the rest on to the author. Not sure if she can legally deduct any associated business fee's though once the split is agreed upon.

Personally, my 1st agent would only agree to a one book, one year deal at the time and said she wanted to handle each one separately. It made sense at the time. Why try to sell three when you don't know if the first one is going to sell from an unknown. As it turned out, she was right, the first one did not even make it to print...

As to ancillary products related to the series, if she has nothing to do with representing you any longer, then she does not deserve any split or commission. Period.

If you can get her to agree to terms of less than like of a publication, I would try, but you have to remember, many of these agents depend on this fact for continued income, and she may hesitate in wanting to continue. I actually had one tell me it was their way or the highway and to think it over. I am still on the highway and unsure if that was good or bad though...

Good luck

CAWriter
02-18-2010, 11:21 AM
It is a sticky situation.

What the agent is trying to do is make sure that they don't get cut out of the process 4 years into the series when books 4-8 wouldn't have sold without her assistance on books 1-3. And there is a point to this. Especially if books 4-8 sell to the original publisher, or to any publisher that the agent pitched the books to, they are, in fact due and entitled to continued commissions even if you terminate the agreement with the agent before the conclusion of the series.

You may want to consult a literary attorney for help in crafting a clause that would specify ongoing payments to the agent due if the projects continue to sell as a result of her efforts, but separating out any ancillary products or titles that would be created AND SOLD without any influence/efforts on her part.

Old Hack
02-18-2010, 11:44 AM
I posted this on the Jennifer Laughran thread as well, but it looks like questions can get buried, so I thought I would query the AW community simultaneously.

Welcome to AW, VTH. I'm glad you're finding it useful but we prefer to only ask questions once; as this thread has already attracted a few replies I'd be grateful if you'd edit your question out of the Jennifer Laughran thread. Thanks.


I have a question for anyone with experience negotiating an agency agreement, specifically in the context of a proposal for a series of stories.

I recently got the good news that an agent wants to represent my work. She is a reputable agent that has received good feedback on this board. We are down to one point on the agency agreement that is a sticky one. My proposal is for a series of children's books, three of which are completed. The agency agreement has a two-year term during which there is no termination right (seems long). The bigger issue, though, is whether she would be entitled to a commission on stories in the series that are sold after she is no longer the agent, if down the road either of us does terminate the contractual relationship. She would like to keep a 15% commission on any story sold in this series in perpetuity, even if it turns into a series with a ten-year run. I can understand why she would like that, but it does not seem appropriate for commissions to be paid on works that are sold and produced after a point at which we are no longer working together.

I would consider both these points to be a deal-breaker. I'd not sign a contract with such a long fixed term; I certainly wouldn't sign a contract which gave an agent commission on books which she had not sold.


Another author (with 20+ years of experience and 40+ published stories) I know suggested I absolutely should not accept this provision, pointing out that the project could morph into related ancillary products that leverage the series name, but are still different stories that would require representation. If she continues to be the right agent to sell those works, great, but that decision should not be made today. I thought this was brilliant guidance but am new to the industry and don't want to pass prematurely on an agent with a great reputation, if it comes to that.

I would appreciate any insight that others in this community might have on this subject.

I have to say that these two points sound absolutely non-standard to me. Agents only earn commission on sales that they make, not on sales that are made after you've terminated your contract with them, and I suspect that such a clause would be against AAR guidelines. As you say this agent has a good reputation here, I wonder if you've perhaps misread or misunderstood the contract; or if the agent has now fallen from grace; or if there's something else going on that we don't know about (although quite what that could be, I'm not sure!).

What ever the reason, I repeat: I would not even consider signing a contract which gave an agent commission on future projects even if she didn't have a hand in selling or negotiating the deal.

Jamesaritchie
02-18-2010, 09:48 PM
That's a ridiculously long contract with no termination. I don't care what marks this agent gets form anyone, that should be criminal.

And no agent shuld get a dime for a work she does not personally handle. That's getting paid for sitting on your ass doing nothing.

I wouldn't go near this agent for all the money in the world.

scope
02-18-2010, 11:10 PM
My proposal is for a series of children's books, three of which are completed.

Is one of your books a stand-alone or would the concept(s) only make sense if the buyer had all three?
Based on what you say, I'm assuming you want to give the proposed agent the contractual rights to sell three of your books, perhaps all at one time (unlikely) or one at a time.

The agency agreement has a two-year term during which there is no termination right (seems long). Very rare to hear of an agency who wants to start out with a two year contract -- usually it's one year with the right to renew if both parties agree --AND -- 30-60 days right to terminate [either party] any time during the life of the contract (this gives the agent time to clear the tables -- either get an offer from people she's been in touch with or withdraw your work from anyone to whom she's submitted it).

The bigger issue, though, is whether she would be entitled to a commission on stories in the series that are sold after she is no longer the agent, if down the road either of us does terminate the contractual relationship.

The agent is only entitled to commission from any of your works
that she sold directly.

She would like to keep a 15% commission on any story sold in this series in perpetuity, even if it turns into a series with a ten-year run. I can understand why she would like that, but it does not seem appropriate for commissions to be paid on works that are sold and produced after a point at which we are no longer working together.

I'm not an attorney and do suggest you contact a literary rights attorney at the right time. My understanding is that the agent gets her commission on books she sold for ad infinitude.

Another author (with 20+ years of experience and 40+ published stories) I know suggested I absolutely should not accept this provision, pointing out that the project could morph into related ancillary products that leverage the series name, but are still different stories that would require representation. If she continues to be the right agent to sell those works, great, but that decision should not be made today. I thought this was brilliant guidance but am new to the industry and don't want to pass prematurely on an agent with a great reputation, if it comes to that.

Another area where you are going to need the advice of a literary rights attorney.

I would appreciate any insight that others in this community might have on this subject.
s

Vermont Tar Heel
02-19-2010, 06:52 AM
Wow, I just checked this after letting it sit 24 hours. I appreciate the many thoughtful responses. The contract seemed unreasonable, but it's helpful to have that perspective confirmed and to hear views on the right "market" terms.

Many thanks,
VTH

CAWriter
02-19-2010, 07:32 AM
What I'm trying to figure out (can't tell from your wording and don't have the wording in the agreement), is the agent really trying to get a commission on books someone else may sell, or is she trying to ensure that you don't drop her after she gets you a publisher for the series?

What she is most likely trying to avoid (if she is respectable as you say) is you dropping her after she gets you a publisher for the first 3 books and then you carry on and do books 4-10 without her, continuing to produce for (and generate income from) the series that she actually sold for you.

Does it really read as though she wants to be paid for work she hasn't done/won't do, or does she want to avoid being cut out of a deal that wouldn't have happened without her?

Natalie_M_Fischer
02-19-2010, 07:46 AM
What she is most likely trying to avoid (if she is respectable as you say) is you dropping her after she gets you a publisher for the first 3 books and then you carry on and do books 4-10 without her, continuing to produce for (and generate income from) the series that she actually sold for you.

This is a risk any agent takes, really, when signing on with an author regardless of whether it's a series or not. Hopefully the author-agent relationship is good, and you won't have a need to terminate, but if you do, you are absolutely entitled to do so at any time.

However, agents do need to be protected too, believe it or not. Say we work for six months polishing a book, it sells...and you terminate. Or, we work to sell a series...and as soon as it starts selling, you terminate (which wouldn't be wise anyway, since an agent isn't just to sell a book...he or she should be helping you to negotiate and get the best out of your contracts!) The way our agency handles this is the "option" clause. Often, a publisher will have an option on your next book once they buy your first, and, even if you terminate after the first book, if your second goes to the same publisher under this option, we would still commission it because we had made that initial sale.

Other than that, I don't see how she can ask for commission on books if she has nothing to do with them...but, I don't know this agent, or her contract, nor am I myself an industry lawyer, so I can't say for sure it's not legal. It just may not be preferable.

rugcat
02-19-2010, 07:52 AM
What she is most likely trying to avoid (if she is respectable as you say) is you dropping her after she gets you a publisher for the first 3 books and then you carry on and do books 4-10 without her, continuing to produce for (and generate income from) the series that she actually sold for you.That may be, but although it's not common, it's also not that unusual for a series author to change agents in the middle of a series and have the new agent represent them on continuing books.

I have a series out which has the same cast of characters in each book. No such provision is in my agency contract.

I'd talk to your prospective agent about your concerns and see what she says about it.

Natalie_M_Fischer
02-20-2010, 09:16 AM
I'd talk to your prospective agent about your concerns and see what she says about it.

Always the BEST idea. :) (on the phone if possible; by email, things can always get rough since you can't hear tone).

scope
02-20-2010, 09:47 AM
What she is most likely trying to avoid (if she is respectable as you say) is you dropping her after she gets you a publisher for the first 3 books and then you carry on and do books 4-10 without her, continuing to produce for (and generate income from) the series that she actually sold for you.



IMO the first agent would only receive commissions for book 1,2, & 3. Those would be the only books she personally sold.
The second agent would get commission on books 4-10, assuming she is the one who sold them to the publisher.
The fact that it's the same publisher would have no bearing on the situation.

As for the option clause mentioned by Natalie, I don't see how that applies here. As far as I know when you have a contract with an agent, the contract may indeed may indeed include a clause that gives the agency right of first refusal on your subsequent work. However, if you terminate your agreement with this agency are you not terminating your contract-et al-except for what they sold while under contract with? I can't see how this "option" would be an exception if book 4 is written after you terminate. But then again I'm not a literary rights attorney.

CAWriter
02-20-2010, 08:44 PM
IMO the first agent would only receive commissions for book 1,2, & 3. Those would be the only books she personally sold.
The second agent would get commission on books 4-10, assuming she is the one who sold them to the publisher.
The fact that it's the same publisher would have no bearing on the situation.

As for the option clause mentioned by Natalie, I don't see how that applies here. As far as I know when you have a contract with an agent, the contract may indeed may indeed include a clause that gives the agency right of first refusal on your subsequent work. However, if you terminate your agreement with this agency are you not terminating your contract-et al-except for what they sold while under contract with? I can't see how this "option" would be an exception if book 4 is written after you terminate. But then again I'm not a literary rights attorney.

See, I see it differently. If all of the books are sold to the same publisher, even with a "we'll buy books 1-3 with an option on books 4-10," then that agent in essence sold all of the books even though the author had not yet written them. If the series is sold as such, it is essentially one unit, to be delivered over time. And I guess for me the litmus test is "would this book have been bought by this publisher were it not for the efforts of Agent 1?" If the answer is no, the books sold because of that agents efforts, then the agent is entitled to royalties.

Otherwise, what's to prevent an author from cutting lose their agent after books 1-3 simply to save themselves the 15%? Unless there is a completely different contract (negotiated by someone else), different terms, etc for the remaining books, then it seems to me that the initial agent still deserves ongoing royalties. No, she may not deserve a portion of everything ever attached to anything to do with the series, but there is an element of fairness that needs to be considered from both sides. And it can be spelled out clearly enough that the author isn't giving away money that the agent didn't earn, but the agent shouldn't be cut out of a deal that wouldn't have happened without them.

It would be nice to have one of the local agents weigh in on this.

Jennifer_Laughran
02-20-2010, 10:19 PM
I answered this on my thread, too. http://www.absolutewrite.com/forums/showpost.php?p=4658698&postcount=980

:-)

Jamesaritchie
02-20-2010, 11:31 PM
I'm starting to lean toward saying most writers are better off without agents. Seriously. Get a literary attorney instead. You have to pay them out of pocket, but you don't have to pay them fifteen percent for life for doing things you can do yourself, or for simply handling a contract.

JulieWeathers
02-21-2010, 12:04 AM
@Jamesaritchie The problem with hiring an attorney is they don't know editors and publishing houses personally. They aren't at a function where someone drops a line about looking for something that agent just happens to have received.

The attorney isn't going to give you suggestions about how to improve your work before you send it out.

The attorney isn't going to help you plan your career in writing.

The attorney doesn't know who is buying what.

The attorney is not a literary agency and so those publishing houses that only accept from agencies won't care that you have an attorney who can look over your contract for you.

The attorney could really care less if you sell your book and how well it does. He/she gets paid by the hour to give you advice on contracts that you have to work your arse off to get.

The attorney might be there for you when you aren't sure which way to go with a writing decision, but that will be another $250 an hour. At the end of the conversation, he or she will tell you do what you think is best and my bill is in the mail.

I was a real estate broker for years and when I put my house up for sale, I listed it with one of my agents. I was too close to the house to make impartial decisions and I didn't want to listen to someone telling me how awful my beautiful kitchen was.

MacAllister
02-21-2010, 12:07 AM
@Jamesaritchie The problem with hiring an attorney is they don't know editors and publishing houses personally. They aren't at a function where someone drops a line about looking for something that agent just happens to have received.

The attorney isn't going to give you suggestions about how to improve your work before you send it out.

The attorney isn't going to help you plan your career in writing.

The attorney doesn't know who is buying what.

The attorney is not a literary agency and so those publishing houses that only accept from agencies won't care that you have an attorney who can look over your contract for you.

The attorney could really care less if you sell your book and how well it does. He/she gets paid by the hour to give you advice on contracts that you have to work your arse off to get.

The attorney might be there for you when you aren't sure which way to go with a writing decision, but that will be another $250 an hour. At the end of the conversation, he or she will tell you do what you think is best and my bill is in the mail.

I was a real estate broker for years and when I put my house up for sale, I listed it with one of my agents. I was too close to the house to make impartial decisions and I didn't want to listen to someone telling me how awful my beautiful kitchen was.

QFT.

I have an awful lot of writer friends who say bluntly that the last thing they'd want to do is try to negotiate publishing without their agents.

Old Hack
02-21-2010, 12:19 AM
In my direct experience from both sides of the fence--as a writer AND an editor--when writers have a good agents their contracts will be significantly better than if they don't; and their contracts will also run better if they have good representation.

Agents don't just sell rights and negotiate contracts, they monitor a book's publication and keep track of payments, resolve problems between writers and editors, ensure marketing departments honour their commitments, and help their clients plan and strengthen their careers. A good agent will work her socks off for her clients and is worth her weight in gold.

At least, that's my opinion. And my experience. For what it's worth.

jana13k
02-21-2010, 12:21 AM
The contract sounds completely unreasonable to me. I don't really care if the agent sold the first three books. If the relationship is a good one, then the author will continue with that agent. If not, the author has every right to find someone else to represent them, as does the agent to cut them loose. The industry is filled with failures on both ends of the stick when it comes to agent/author relationships.

My contract with my agent is for ME, my career, with the option for either of us to cancel with 30-days notice. She represents everything I write. We don't have contracts by the work. I prefer that arrangement as I'm not constantly shuffling paperwork, and since I love my agent, I wouldn't even consider leaving.

Also, I would NEVER, EVER want to negotiate contracts myself. On my latest deal, my agent got me double the original offering and a multi-book deal - something I would not have even known to ask for as it's supposedly "not done." I also don't want to call and yell at my editor over late payments (and yes, I've had that problem) then attempt to work with her creatively on my current novel. Ugh. My agent has associations with foreign rights sales, movie rights agents, attorneys and even a full-time marketing person that works exclusively with her clients - at no cost to us. There is simply no way I could ever purchase that kind of service individually, let alone for 15% of my royalties.

scope
02-21-2010, 12:30 AM
I'm starting to lean toward saying most writers are better off without agents. Seriously. Get a literary attorney instead. You have to pay them out of pocket, but you don't have to pay them fifteen percent for life for doing things you can do yourself, or for simply handling a contract.


James,

I can't agree with you on this one, not the slightest. With an exception here and there I don't think many writers would stand a chance of getting published without an agent. Maybe 20 or more years ago, when the industry profile was completely different, but not today given its complexity, insulation of editors and publishers, and the overwhelming number of unpublished writers trying to get published. There's no doubt that at times agents can be difficult to deal with in a slew of ways and often difficult to satisfy, but in most cases they know far more about most aspects of the industry than most writers ever will. And perhaps most important today is the entree they have to publishers -- which we don't have.

An intellectual rights attorney, beyond being expensive to use, is just that -- an attorney whose specialty is to review contracts and such. To think that in any way s/he can do the job of an literary attorney is wrong.

Maureen Johnson
02-21-2010, 01:01 AM
I'm starting to lean toward saying most writers are better off without agents. Seriously. Get a literary attorney instead. You have to pay them out of pocket, but you don't have to pay them fifteen percent for life for doing things you can do yourself, or for simply handling a contract.

I know a lot of other people have responded to this already, but it made my hair stand on end, so I had to reply to make it nice and SMOOTH again.

I wouldn't take a STEP without my agent. Not a step. Agents are INVALUABLE.

First of all, finding "a literary attorney" is about as easy as finding a unicorn. There aren't many, and they tend to work for literary agencies. You may mean a general contracts person, and that isn't going to get you anywhere. Contracts are only one small part of what agents do, and a contract lawyer isn't going to be able to help you negotiate them because they simply don't know/care enough about what to ask for, what rights to keep, what to fight for. The advance is only a small portion of it. Who handles your foreign rights, for instance? Does this publisher have a known crack team, or would you be better off selling them yourself . . . and by YOURSELF, I mean your agent. Because to do that you need a worldwide network of connected, knowledgeable subagents. What about audio? What about film? What other things can you negotiate in? You might not even notice that option clause, or some small line about delivery dates. I have read a lot of contracts--I wouldn't even dream of doing my own. A good agent isn't just dealing with the legal language--a good agent is thinking long-term about the implications.

The "things you can do for yourself" which you refer to are so many and so far-reaching that (and I mean no offense by this) . . . I get the idea you've never had to do those things. Because if you had, you wouldn't be so dismissive. The contracts are just the START of a lot of work, of a journey with the book that goes on for years. For a start, you need an agent to get your book to the right people. You need an agent to help guide long-term plans. You need an agent when things go wrong (and BELIEVE me, even in the best circumstances, things go wrong). What happens if your editor leaves and you are in the wind? You call your agent.

Agents aren't just glorified paralegals . . . their strength is in KNOWING the business. Knowing who is where, who is acquiring what, who can really bolster your career, knowing YOU and what you can bear. I get asked to do things all the time. Know who I talk to? My agent. She guides me on what to accept and what to decline. Why do I need to talk to her? I am, after all, a fully-functioning human being with a good sense of my own capabilities. My agent uses all of her knowledge of what will pay off and what is probably a waste of time. She often suggests things I've never even heard of.

Also, you need to be the wacky, creative one. Your agent is your business side. Your agent steps in and talks for you when talking needs to be done. Your agent is taking constant meetings with everyone in the business. I know a lot of editors--but my agent knows dozens more, because THAT IS HER JOB.

Agents are professionals, and you hire them for their expertise. You hire them to be on your side, to think of your projects. They have a LOT of knowledge about an ever-changing landscape. (Publishing is like a merry-go-round. Blink, and all the editors have changed positions.) There are so many aspects to the process, it blows your mind. And if dealt with them all every day, I would have written one book, not eight. And I'd be crying and rocking in the corner all the time.

But again, everyone here seems to get that. I just needed to say it and get it out of my system.

Medievalist
02-21-2010, 01:15 AM
Agents are professionals, and you hire them for their expertise. You hire them to be on your side, to think of your projects. They have a LOT of knowledge about an ever-changing landscape. (Publishing is like a merry-go-round. Blink, and all the editors have changed positions.) There are so many aspects to the process, it blows your mind. And if dealt with them all every day, I would have written one book, not eight. And I'd be crying and rocking in the corner all the time..

Even in non-fic fields, agents are huge. My agent has gotten work for me, gotten better advances and negotiated on my behalf with a publisher who was ah, less than professional. And said agent got subsidiary rights and deals for me in countries where she knew the publishing landscape, and had personal contacts.

A good agent is not just someone who can read a contract and negotiate a deal; a good agent has a network of personal contacts.

Irysangel
02-22-2010, 08:38 PM
Just to add a bit more info for the OP, I have a split situation like the kind you are discussing.

My first agent sold book 1 and 2 in a series. They submitted a 3rd book for me, but it was declined. My publisher did not consider this book my option book. Later on, I terminated the agency and moved agents.

My current agent submitted the option -- book 3 in my series, plus a new book. They sold. She handles everything for book 3 and 4. Anything for book 1 and 2 gets referred back to the previous agent (since they were the agent of record) like audio rights, etc. Anything going forward is handled by my new agent.

I think it's fairly standard for the rights of a sold contract to remain within the agency that sold it. I do not (and YMMV) think it is standard in the slightest for the agency to retain a paycheck on books they did not sell. Just my two cents.