Are agencies open to negotiating their agency contracts?

Any sequels you sell (assuming they're not included in the initial deal) are still a result of the work the agent has already done; they're entitled to commission for them. If they hadn't sold the first book, the others wouldn't exist in print.

Exactly what sales do you think you'll be making once the book is out of print? If you're planning to sell reprint rights, then - again - the agent is doing the work; they're entitled to the commission.

Willingness to negotiate will probably vary by agency. Once an offer of representation is made, you can speak with the agent about any clauses that concern you. If you don't come to an agreement, then don't sign with the agent.

kangolNcurlz said:

What has been your experience?

I've done a lot of research and there are some agency contracts I'd be weary to sign unless some things were modified or removed. For instance, some agencies want commission for not only the book deal they negotiate, but also any sequels related to that book that they didn't negotiate. That would be unacceptable to me. Also, some agents want commission for the life of the book. I'd stipulate that it's until the book is out of print.

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If an agent doesn't negotiate the deal, the agent deserves no commission. Nor does an agent deserve commission on a book that goes out of print, and gains a new deal through the work of the writer, or another agent. That's simply theft.

Cyia said:

Any sequels you sell (assuming they're not included in the initial deal) are still a result of the work the agent has already done; they're entitled to commission for them. If they hadn't sold the first book, the others wouldn't exist in print.

Exactly what sales do you think you'll be making once the book is out of print? If you're planning to sell reprint rights, then - again - the agent is doing the work; they're entitled to the commission.

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Not true at all. I've sold sequels, and nothing about the sale involved the original agent, or was a result of any work she did. Think about what you're saying. If a second agent handles the sequel sale, you'll be paying commission to two agents for one book. That would be stupid.

Likewise, if I do the work, rather than using a second agent, my old agent gets nothing.

Fortunately, no good agent demands this, or expects it.

And anywhere form thousands to millions can be made after a book goes out of print. Books can be brought back into print in a number of ways, all of which involve serious work. If the agent doesn't do the work, the agent doesn't get any money.

ChaosTitan said:

Willingness to negotiate will probably vary by agency. Once an offer of representation is made, you can speak with the agent about any clauses that concern you. If you don't come to an agreement, then don't sign with the agent.

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Although I think that Jamesaritchie makes some valid points, clarity on as many issues as you deem important should be addressed in the original and/or current agency contract. On the other hand, that's easier said than done when a writer is unpublished and doesn't have an agent. But objectively I don't see how could anyone disagree with this advice from ChaosTitan.

It's good that you're thinking about these things, and realizing that even the Author/Agent agreements of reputable agents vary quite a bit. It's good to know exactly what you're willing to sign.

Unfortunately, I'll bet most agencies will not negotiate, though. So you have to be willing to walk away, and to prepare yourself by not being too excited about the offer until you find out what's in that contract.

I don't think any agent will negotiate on percentages, but beyond this, I've found most are open.

I'm with Wordwrestler. I believe most agents will not negotiate with writers who aren't massively successful or don't have a super-hot book with lots of offers on the table. Fairly or not, a prospective client who wants to negotiate may come across as a high-maintenance, difficult client.

Jamesaritchie said:

I don't think any agent will negotiate on percentages, but beyond this, I've found most are open.

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Completely agree.

Any author looking for rep should ask for the agreement to be e-mailed right away once an offer is made. It should be part of what we consider when we ask for a few days to think over the offer, and to notify other agents who may be interested. But I don't think I've ever seen that suggested. Maybe because it would cause some to rescind the offer? But wouldn't we rather that happen than be stuck having turned down other offers (which might have had acceptable terms) only to find out the agent whose offer we accepted had an agreement we just couldn't sign?

I used to think that all a writer had to do was check out the agent's background and make sure they were legit. I really didn't think there was any variation in the contracts of reputable agencies, but there really is.

And some of the clauses that alarm some writers may truly be fine with others, but we need to understand them, and to know what's acceptable to us. It's important that we do a better job informing the writing community about this, and I'm glad these agents are posting about it, even if their personal experiences with certain clauses is quite different.

My experience* has been that some things in agency contracts are negotiable (just as some things in publisher contracts are negotiable). You'll never know unless you ask. Don't sign an agreement you can't live with, but be careful about how rigidly you draw some lines; it might be hard to get anyone to cross them.

*Over my 15+ year writing career I've signed with 3 agents and conferred with several others with whom I didn't sign. Each agent/agency had their own negotiable/non-negotiable points and sometimes that was the reason for not signing with them and sometimes there was a completely unrelated reason.

Wordwrestler said:

Any author looking for rep should ask for the agreement to be e-mailed right away once an offer is made. It should be part of what we consider when we ask for a few days to think over the offer, and to notify other agents who may be interested. But I don't think I've ever seen that suggested. Maybe because it would cause some to rescind the offer?

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For what it is worth, I always explain my (very simple) agency agreement during the phone call in which I offer rep - then I send the (potential) client a copy of the agreement immediately so they can look it over and ask any questions. That is whether or not they have multiple offers - it is just protocol. And I would expect any agent to be fine with doing this.

If they're the type of person who would rescind their offer because you asked to read their agency agreement in advance of being asked to sign it, they are not an agent I would want.

Jennifer_Laughran said:

For what it is worth, I always explain my (very simple) agency agreement during the phone call in which I offer rep - then I send the (potential) client a copy of the agreement immediately so they can look it over and ask any questions. That is whether or not they have multiple offers - it is just protocol. And I would expect any agent to be fine with doing this.

If they're the type of person who would rescind their offer because you asked to read their agency agreement in advance of being asked to sign it, they are not an agent I would want.

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this is good information...and it's the same thing I'd expect from any sort of business relationship where a contract is entered into...I do this same thing when I offer representation to a client regarding any legal matter

thank you for the input from the agent's perspective

Everything's always negotiable, but the key is in the balance of power, or leverage.

If you're highly successful and want to switch agents you can do a beauty parade of new agents and pick the one that you like and who gives you the most favourable terms or you can simply state your demands.

If you're just starting out then you can attempt to negotiate but you risk alienating your new agent and you have very little bargaining power. If they're a really good agent then they will probably not attempt to sign you up to anything other than standard or reasonable terms.

Bottom line: it's a lot better to get 80% (or even 10%) of something than 100% of nothing.

Jennifer_Laughran said:

For what it is worth, I always explain my (very simple) agency agreement during the phone call in which I offer rep - then I send the (potential) client a copy of the agreement immediately so they can look it over and ask any questions. That is whether or not they have multiple offers - it is just protocol. And I would expect any agent to be fine with doing this.

If they're the type of person who would rescind their offer because you asked to read their agency agreement in advance of being asked to sign it, they are not an agent I would want.

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Exactly.

And thanks for sharing your process.

kangolNcurlz said:

I've done a lot of research and there are some agency contracts I'd be weary to sign unless some things were modified or removed. For instance, some agencies want commission for not only the book deal they negotiate, but also any sequels related to that book that they didn't negotiate. That would be unacceptable to me.

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That would be unacceptable to me too. Mind you, I've never seen a clause like that in the contract for a reputable agency, so you shouldn't lose out too much if you refuse to agree to this.

Also, some agents want commission for the life of the book. I'd stipulate that it's until the book is out of print.

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Again, I've only ever seen this clause in contracts for agencies I'd not sign with anyway. It's perfectly reasonable for an agency to continue to earn its commission from your book for the life of the contract, even if you move to a new agency before that contract expires: but for them to earn from deals other agents make, or deals you make? Nope.

Old Hack, you might be surprised what's in the Agreements of some reputable agencies. The most important point I'd like to get across is that authors looking for rep need to be careful and look everything over, even if the agency is reputable.

And Hillgate, though I understand where you're coming from, not only is your philosophy not one I could have at this point (no matter how terrible the odds) but I really don't think it's necessary.

While we need to read Agreements carefully, because potentially troublesome clauses do exist among reputable agencies, many (if not most) reputable agencies have very fair Agreements.

ETA: Kangol, you're welcome, and thanks for starting the conversation.

I'm thinking that perhaps "life of the book" may be being confused for "life of copyright." The life of the copyright is (according to current US copyright law) the life of the author plus 70 years. No agency agreement should be assigning an agent to the author's work for the life of copyright.

However, an agent does have the right to retain commission for contracts they have sold and negotiated, for as long as that book or work is in print. (Perhaps "life of book?") Each time a publishing contract is negotiated between agent and publisher, the agency will (usually) add or ask for the inclusion of their own clause in the publishing contract which explains that they are a third party beneficiary to the agreement, and which outlines the percentage they'll receive for all income that is derived from said contract.

So if the agent sells the original book, and the publisher has subrights that they sell, the agent retains commission on that book and the subrights income as that is all part of the original contract. If the person leaves the agency, and the book goes out of print and the original contract is cancelled, the rights would revert to the author and the agent will no longer receive commission on any new sales of the work.

Check your agency agreements -- most will outline the amount of time that an agent has to finish negotiating contracts, etc. once there has been a decision to terminate the relationship from either party. Once that time frame has elapsed, the agent has no claim on future work or future sales.

Sorry so long winded, hope that helps!

Wordwrestler said:

Old Hack, you might be surprised what's in the Agreements of some reputable agencies. The most important point I'd like to get across is that authors looking for rep need to be careful and look everything over, even if the agency is reputable.

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If agencies have dodgy clauses in their contracts then they are not reputable. The important thing is to understand when something is worrysome and when it's not.

TMarchini said:

I'm thinking that perhaps "life of the book" may be being confused for "life of copyright." The life of the copyright is (according to current US copyright law) the life of the author plus 70 years. No agency agreement should be assigning an agent to the author's work for the life of copyright.

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The clause should be "life of contract", not life of book or life of copyright. Agents should benefit from contracts they negotiated, even if the writer moves on. That's why royalties are paid to the agent of record, not to the writer's current agent if the two are different.

Old Hack said:

If agencies have dodgy clauses in their contracts then they are not reputable. The important thing is to understand when something is worrysome and when it's not.

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And yet some are widely regarded as reputable, on lists of reputable agencies, etc. And perhaps that's because perpetuity clauses (regarding the work itself, and not just the contract the agent negotiated) are okay with some authors.

Regarding another type of problematic clause, an agent from a reputable agency asked me if I was sure my shopped, but unsold book was available because she said most agency agreements have a clause that ties the work to the agency forever once they've "worked with it." She used the word, "most" not "some" or "a few." I'd never heard of such a thing, and I doubt that most agencies have clauses like that, but I don't know why she would make that up entirely.

However rare these clauses are, I'm really wary of saying, "Well, those aren't reputable agencies, then." Because the implication is that we're okay if the agency is highly regarded and has no documented complaints. We need to be familiar with the types of clauses that can cause problems, and read the agreements, then make the best decision for us.

An acquaintance of mine had an agent sell the rights to her book to one foreign country, but she was unable to make an English language sale. If she'd signed an agreement with either of the types of clauses I mentioned above, she wouldn't have been able to move on and have someone else sell her book so she could see it in print in her native language--at least not without paying two commissions, depending on the wording.