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tengraceapples
02-09-2012, 10:35 AM
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

frimble3
02-09-2012, 11:53 AM
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
Standard or not, did you read the clause in the contract when you signed it?

Terie
02-09-2012, 12:20 PM
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?

Irysangel
02-09-2012, 07:21 PM
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.

ChaosTitan
02-09-2012, 07:24 PM
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.

Jamesaritchie
02-09-2012, 07:44 PM
Theft is what that is, but too many agents insert it into a contract. Read contracts carefully.

Ketzel
02-09-2012, 08:39 PM
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.

Cyia
02-09-2012, 08:46 PM
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.

Ketzel
02-09-2012, 09:03 PM
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.

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. :-)

Cyia
02-09-2012, 10:32 PM
But in most cases, one would expect an author not to dump an agent the same week a book goes on submission.

Ketzel
02-09-2012, 11:11 PM
True, but things happen. People don't always behave rationally.

ChaosTitan
02-09-2012, 11:35 PM
People don't always behave rationally.

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

Just Me 2021
02-10-2012, 12:25 AM
I've seen that clause. It's not that uncommon. Wishing you luck as you go forward.

Sage
02-10-2012, 12:30 AM
I would reread your contract and see what it actually says.

Painful as it might be, I would talk to your ex-agent and find out who she submitted to.

You're going to need to know that info anyway before signing with a new agent (and you should inform agents you're querying that the book has been seen by publishers if it has)

suki
02-10-2012, 01:29 AM
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

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

tengraceapples
02-10-2012, 02:18 AM
First thanks for the quick reply guys.
So what I'm getting is that if its on the contract I have to suck
It up or pay lawyer which will cost (and I may still end up having to pay my ex agent.)
Ok, got it.

As far as how much work was put in by my ex agent, he sub me to abt ten pubs. They liked my writing and wanted to see more. I made a big change to the ms and we were supposed to resub but what was supposed to take two weeks turned into a few months. In addition, we had a difference of opinion about the direction of my work.
For the ones who wanted more details:)

Drachen Jager
02-10-2012, 03:02 AM
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?

Giant Baby
02-10-2012, 04:20 AM
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

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.

tengraceapples
02-10-2012, 08:07 PM
Seems not everyone's in agreement....
But then again, when does that ever really happen.lol

DeadlyAccurate
02-11-2012, 02:45 AM
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.

BethS
02-11-2012, 03:58 AM
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

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

Corinne Duyvis
02-11-2012, 04:00 PM
My agency contract said two months, FWIW.

kathleea
02-11-2012, 07:55 PM
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.

tengraceapples
02-11-2012, 11:34 PM
I think a year is too long

Ken
02-11-2012, 11:51 PM
... 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.

tengraceapples
02-13-2012, 01:18 AM
Part of contract says:

If within one (1) year after termination you enter into any agreement concerning any of your Works with a person or firm with whom ******** agency had been negotiating on your behalf prior to terminationthat agreement shall be deemed to have been entered into during the term of this agreement.

now my ex agent did sub my work to pubs. But there was never any deal on the table with them. So is the act of sending your work to pubs considered "Negotiating"? a few of the pub asked to see more of my work but we parted ways before she could resub (mostly delayed my her schedule)

So, is she still entitled to her cut if my new agent subs my revised work?
I asked this question before but I didnt have the contract so I found it and reposted. Thought that seeing the contract might help.


Thanks in advance guys

kaitie
02-13-2012, 01:29 AM
I would call that negotiating. And yes, as I think as mentioned before, your resubmitting to those places that she originally sent to and who then requested because she sent them means that she would be entitled to a cut.

If you really don't want to pay her, then make sure you don't submit anything (even requested resubs) to anywhere she sent. Otherwise just accept that you're going to have to and that it was part of the agreement you signed.

My agency has a similar agreement, and I'd have no problem paying if I was in a situation like that. Otherwise, what's to stop authors from taking on an agent, getting the book seen by editors and getting close to a sale, and then ditching the agent just to avoid paying the agent fee?

I'm not really seeing why this needs to be asked again because the answers had looked pretty clear the first time. I just have a feeling it's an answer you don't want to hear.

Smish
02-13-2012, 01:37 AM
I hope you've discussed this with your current agent.

Drachen Jager
02-13-2012, 02:05 AM
My thought is that you should just press ahead. If one of the houses you subbed to with your previous agent makes an offer you can always hope to get a bidding war going with another pub that you did not deal with previously.

Otherwise you're out 30% of your royalties, but really, so what? If the book turns out to be a huge success, you'll be fine, lots of chances for future books and you'll still be making 70%. If it's moderately successful then it costs you a chunk of cash you'd probably prefer to see in your pocket, you learned a lesson and paid the price, but that success can lead you to future deals where you're only paying 15%.

Finally if the book flops there's not much money anyhow, so who cares?

Terie
02-13-2012, 02:09 AM
Why did you start another thread on the same subject you've already asked about (http://www.absolutewrite.com/forums/showthread.php?t=237032)?

Giant Baby
02-13-2012, 02:22 AM
I'm confused by this:


Part of contract says:

So, is she still entitled to her cut if my new agent subs my revised work?




Are you saying that you do have a new agent, or are you just looking for information for when you sign with one again down the road? Because if you do have an agent, that's who you need to be talking to about this.

If you're still looking, I'll caution you, you'd have a much easier climb finding representation again with a new book. I'm querying now, and several agents requesting materials have double-checked that the book they're requesting has not been shopped, even though I make that clear in my query. Your best chances for a shopped manuscript are likely going to be after that year has passed, anyway, when some of the editors who've seen it may have moved on to other houses.

But, if you've already got an agent who's willing to go for it, cool. But he or she should be explaining this to you.

Old Hack
02-13-2012, 02:41 AM
I'm going to merge your two threads, tengraceapples. Please don't start more than one thread about a single subject in future.

tengraceapples
02-13-2012, 03:36 AM
I wasn't sure if I should post on the same thread since posting the contract was new.
I didn't sit back and think "hey let's post two threads, just to mess with them" swear.
And if she is entitled to her cut, then she will get it. If the book gets that far.
I'm just asking so that I am clear. Isn't that one of the reasons to come here? Even in the thread there is a difference of opinion. It can't hurt to ask right?

Ketzel
02-13-2012, 04:56 AM
There is no difference of opinion that the contract applies and that by its terms, under certain circumstances, the ex-agent has a claim to the proceeds of a deal made after the contract terminates. The debate has been as to what those circumstances are, and that can only be finally determined if/when the claim is asserted.

tengraceapples
02-13-2012, 05:11 AM
Lol, all this for a project that isn't even on sub yet.
All the same thx for the input:)

Giant Baby
02-13-2012, 05:26 AM
Having the language from the contract does clarify your original question, so it's good to have the threads merged, IMO, for the sake of both your questions. They seem to be, chronologically: 1) is this standard, and 2) is former agent still entitled to her cut if new agent subs your "revised" work?

1) YMMV from agent to agent, but as you've seen in this thread, it's not non-standard.

2) Yes. You signed the contract. She's entitled (unless the revisions you've alluded to have turned the work into a whole different book, in which case, we wouldn't be having this discussion). Assuming you did sign that contract, this is the agreement you entered into with her.

I hope you've discussed this with your agent. Was this is the work you were signed on, or were you signed on a later work?

Giant Baby
02-13-2012, 05:29 AM
Lol, all this for a project that isn't even on sub yet.
All the same thx for the input:)

*head spins*

Wait, was it ever on sub? By your former agent?

(I picked up dinner mid-reply above.)

Seriously, tengraceapples, you need to talk to your current agent.

tengraceapples
02-13-2012, 07:23 AM
Ex agent did sub.made changes to ms. New agent about to resub

Giant Baby
02-13-2012, 07:58 AM
Ex agent did sub.made changes to ms. New agent about to resub

(Emphasis mine.)

Tengraceapples, does your current agent know about this book's submission history? Does he/she understand that it is (effectually) still under contract with another agency? Are you being honest with everyone involved? Because, from your own posts, it seems like something's not right, here.

I hope you understand that it's not just your book and reputation you could take down here, but you could damage the career of the agent who's currently taking a chance on you.

Best of luck to you.

tengraceapples
02-13-2012, 08:39 AM
My ex agent was done with sub. We got rejected by the pubs she sent work to.
I was working on rewrites since the pubs were interested in hearing more from me.
My then agent was supposed to get back to me about edits. After a few months nothing happen.I then terminated our relationship. I sent her a a professional letter stating that. She emailed and wish me luck. There were no loose ends.

It has taken 3 months to find a new agent. She knows I had an agent before her.
She also knows its been sub some places. I'm just a writer who moved on from her agent:)

Old Hack
02-13-2012, 12:20 PM
I didn't sit back and think "hey let's post two threads, just to mess with them" swear ...
I'm just asking so that I am clear. Isn't that one of the reasons to come here? Even in the thread there is a difference of opinion. It can't hurt to ask right?

I didn't suggest that you were trying to mess with anyone, nor did I suggest that you're not allowed to ask questions. There's no need for you to be so defensive.

Moving on, here's what I think you need to do right now.

1) Make sure your current agent knows exactly who your previous agent submitted your book to.

2) Make sure your current agent knows which of those editors have asked to see the work again, once you've revised it.

3) Provide your current agent with a copy of the contract you signed with your previous agent (not just a single isolated clause of it--other clauses will affect this one), and point this clause out to her, so that she knows about the complications that a sale here might well involve.

4) Ask your current agent to help you work out precisely what this clause means and how it affects you. For example: there might be a time-limit on that clause; in the context of the entire contract, the clause might not be quite so black-and-white as it seems; or it might be far more restrictive than it seems.

5) And then you can work with your agent to form a submissions strategy for this book, taking all those points under consideration. For example, if there is a time-limit on the clauses concerned you might just have to wait a couple of months and then you're clear; you might want to submit to different editors in the same house; or you might have to expect to pay a double agent commission on the book if it's picked up by any of the editors who have already seen the book.

Terie
02-13-2012, 01:29 PM
^^^ What Old Hack said.

What I don't understand is why you're asking these questions in an internet forum instead of asking your current agent. There's no way anyone here, no matter how well informed or intentioned, can give you the advice your agent can.

tengraceapples
02-14-2012, 04:09 AM
i think you guys are right. Will ask new agent

thx!

:)

OohLaLaura
02-24-2012, 09:22 PM
So, when those of you that have published work receive a contract, do you have a lawyer look at it? How much of your contract is written in legalese? Is it really hard to understand, or pretty straight forward?

If any of you have used attourneys/lawyers, was it worth the expense, in your opinion?