View Full Version : Interminable Agency Clause

04-05-2004, 08:59 AM
Hi everyone, I was coasting around looking for markets when I saw this at
www.double-dragon-ebooks.com/warning.asp (http://www.double-dragon-ebooks.com/warning.asp)

Bssically they are saying that some agents grab all rights to works they have represented - so even if you change agents, you still have to go on paying that one.
Worth a read.
This is not a warning about Double Dragon ebooks, by the way, just a link to why they don't accept agented submissions.

All the Best,

04-05-2004, 09:28 AM
OK, when you sign with an agent and they sell your book, they get their commission on that book--even if you switch agents, that's the way it works.

So if XYA sells my book--Bare Bear, and three years later I leave XYA, then XYA keeps getting a commission off the sales of Bare Bear. It has nothing to do with rights, publishers own rights, not agents. They get the commission because they are the agent that sold that book.


James D Macdonald
04-05-2004, 09:44 AM
I see that Double Dragon says "No agents please." That means I'd cross them right off my list of places to submit -- the usual reason places say they don't take agented submissions is because there's something in their contract that won't stand up to scrutiny.

What that notice is talking about is the action by one particular agency to change the normal agency clause that you'll see in any contract from "the life of the agreement" (from whenever the contract is signed to whenever the book reverts) to "the life of the copyright" (currently the author's life plus a whole bunch of years).

That change in the agency agreement was noted by RWA, SFWA, and a number of other professional-writers groups. I believe the matter is being addressed, if it hasn't already been resolved.

This underlines the author's need to read and understand anything that he/she signs.

04-05-2004, 10:30 AM
Maybe I should clarify:
The warning reads
``RWA has recently learned that at least one major literary agency has inserted in publisher/author contracts negotiated by the agency a clause which we feel could be detrimental to authors.
This clause is a deviation from agency norms. It appoints the agency "as the author's sole and exclusive agent with respect to the work for the life of the copyright (and all renewals and extensions thereof) and authorizes and directs the publisher to make all payments due or to become due to the author."

It additionally states that as sole and exclusive agent, the agent is "hereby irrevocably authorized and empowered by the author to act on the author's behalf in all matters arising from and pertaining to this agreement . . ."

Traditionally, this clause has appointed agencies/agent as the sole and exclusive agent for the life of the agreement, not the life of the copyright.''

I just thought this would interest writers - whether they agree to it is of course, entirely up to the individual writer.
And not having dealt with Double Dragon I cannot comment on whether to avoid this publisher or not.

All the best,

04-05-2004, 04:32 PM
I agree that this clause is something to watch out for. I found a similar clause in my agent/author contract. Luckily, I'm a smart cookie. I called my uncle, a lawyer, and read the entire contract to him over the phone. Even without experience with literary contracts, he caught the clause immediately. I e-mailed the agent and asked that it be reworded, which she did. I honestly don't think she had malicious intent. Her track record and reputation is impeciable and you don't stay in business for 26 years if you're a scam. It's merely proof that nothing should be 100% trusted without reading the fine print. My contract now includes the words "At such time as rights are reverted to the author by the publisher, agent will also revert rights to the author."

I do not think, however, that this should be used as "proof" that authors are better off without an agent. The proof is in the pudding. When I wrote my novel, I aimed it at Dorchester Publishing (Average advance: $2000, Average royalties: 4%-6%). Even though Dorchester takes unagented submissions, I decided to get an agent anyway. Now I'm glad I did. Because of her contacts, I am now under consideration at Avon/Harper Collins (Average advance: $7000, Average royalties: 8%). The time frame is moving much more quickly as well. Instead of the nine months or more my friends' manuscripts have been sitting in slush piles, my average response time because of my agent is 4-6 weeks.


04-05-2004, 09:27 PM
Note that the clause in question isn't being inserted in author/agent contracts, but made part of the agency clause in author/publisher contracts.

The agency that's doing this is one of the biggest in the business.

- Victoria

04-11-2004, 01:08 AM
The agent issue is a tough one. Damned if you do, damned if you dont. Huh?:shrug But I think if your work is good enough, you should be able to get a good one. And why not work your way up? do you have to commit to an agent?

04-11-2004, 04:25 AM
Yes. You have to commit to an agent. You can change later, but you can only have one agent or agency at a time.

Agents ought not claim rights in books except the right of agenting them, in the case of books authored by their clients; and the continuing right to be the agent of record, in cases where the original deal they made is still in force. The latter persists even if the relationship with the author has ended.

There are good reasons for an agent to continue to be the agent of record for a book. Imagine an agent who's invested a great deal of time, effort, and caring in the polishing and marketing of a writer's work. The agent has only recently concluded a long series of painstaking and laborious negotiations with a major publisher, which ended with the signing of a highly advantageous multi-book contract. The publisher's check for the on-signing payment from that contract will be the first time the agent will have made a dime off this author.

Having the agent of record remain the agent of record, no matter what happens, means the author can't choose this moment to fire the agent, and keep the commission. It also means an author who's been working with one agent for years and years can't just take all the slowly accumulated revenue streams that are the agent's percentage of royalties still trickling in from multiple old book contracts, and reassign the lot of them to the author's new girlfriend who thinks it would be fun to get into the agenting biz.

Does this persistence mean a lackluster agent can go on making money for years and years from a successful book whose success owes nothing to them? It does. You'll be stuck with them until the book goes out of print with its original publisher. And if it should happen that some literary property is wildly successful, the agent of record will be the one handling all the intricate subsidiary deals, from movie options to Latvian translations to the right to reprint excerpts on cupcake wrappers.

Taking on a bad agent is betting against yourself.

One other thing. Phoning your-uncle-the-lawyer to have him go over your contract is a good thought, but it's often a bad move. A lawyer who isn't familiar with publishing contracts, and the industry in general, may come to strange conclusions about perfectly normal, benign provisions in the contract, and miss serious problems that would be spotted right away by someone with more experience.

Personally, I'd go to SFF Net, find an area where a lot of long-term SFWAns hang out, wait for an auspicious moment, and ask briefly and politely whether anyone there can explain the indemnity clause, or reserves against returns, or joint accounting, whatever it is that's puzzling me.

Don't do it unless you have a real contract from a real publisher. Outfits like PA have contracts whose defects are fractal, and everyone will run out of patience trying to explain them.

04-12-2004, 09:45 AM
That is some great info Happi. Thank you for that. It looks like you have a lot of experience and I'm glad you are kind enough to share it with us!:hail

James D. Macdonald
07-31-2005, 02:27 AM
The "life of the copyright" means the author's life plus seventy years. Authors should be very careful about signing anything with the words "life of the copyright" in it.

07-31-2005, 06:51 PM
In Britain, most authors join the Society of Authors, where you pay a yearly fee and hen you can get free legal advice, they look through your contracts, etc. Don't you have such a thing in the US? I've never used them but it could be very helpful in future.

J. Y. Moore
07-31-2005, 10:21 PM
In Britain, most authors join the Society of Authors, where you pay a yearly fee and hen you can get free legal advice, they look through your contracts, etc. Don't you have such a thing in the US? I've never used them but it could be very helpful in future.


Do you have to be published before joining? I think most of us unpublished newbies need the advice before first contracts (and, to be sure, after :) too). I know SFWA won't accept you before publication so I'm wondering if this is the same.

J. Y. (Jean) Moore