Blogger: Janet Kobobel Grant
Last week, in the comments section to my blog about bad agents, Kay Elam remarked that she had the exquisite opportunity to decide between two agents who wanted to represent her. But Kay was confused by the variations in the agencies’ representation agreements. One was one page long; the other five.
So what should you look for in an agent’s contract?
- Recognize that agents span the spectrum when it comes to agreements. Some operate off of a handshake (or a nod of the head); others have multi-paged, detailed contracts. Neither is good nor bad. The agent without an agreement is functioning based on publishing conventions and the belief that giving one’s word should be sufficient. The second has decided that spelling out how the relationship will work keeps communication on a business level and avoids misunderstandings. The agreement becomes a document both can refer to if the relationship unfolds in unexpected or complicated ways.
Our agency falls into the latter category. We’ve found the author-agent agreement invaluable when very good things or very bad things happen in a publishing career. The contract guides each party in how to deal with surprises as well as with more standard events.
- Understand the “term” or length of the contract. Some agencies’ agreements specify that they will represent one manuscript. Others want to represent everything you write in perpetuity. Still others will represent a genre or category of writing, say, children’s books. Once again, there is no right or wrong contract. It depends on what works best for you and the agent. Obviously each of these examples is a piecemeal approach to your writing except for the agreement that covers all of your writing. Agencies that are more career-oriented will tend to have this type of contract. That way the agent can deal with the full scope of your career rather than having to coordinate with another agent or having the author act on his/her own behalf in a different type of writing.
- Be sure to check how the document specifies the relationship ends. While each party enters into the agreement with a belief that this will last forever, it doesn’t always work out that way. If the agent or author wants to end the relationship, how will that work?
Some agency contracts are what is called “at will,” which means either the agent or the author may end the relationship at any time. The only caveat is that the agreement is likely to give the agent 30 days to clear the pipeline, that is, to attempt to collect responses to proposals that editors are considering. So, even after one party gives notice that he or she wants to end the relationship, the agent has 30 days to continue working to close out unfinished business. We’ll come back in a minute to the issue of what rights agents retain even after the contract is ended.
But continuing with the ending of the relationship, some contracts tie the author to the agency until a certain number of projects have been written under the agreement. That should raise red flags for you. What if you realize, soon after entering into the relationship, that it isn’t what you had hoped? But you are required to produce a number of projects for the agent. Signing an agreement that has a time limit specified is also a sobering concept for the same reason. If the agreement is for three years, but in the first year you want out…oops, it could be a long wait.
- Read carefully what rights the agent has to work he or she places for you. Most contracts specify that the agent has the right to represent you–and to collect commissions for–any project until the rights are returned from the publisher. That means, if the book is made into a film after you move to another agent, the first agent receives his commission on money you make from the film as well as the boost in royalties that the book will experience. The reason this is the case is that the agent has done the work of finding a publisher for your book and has negotiated the contract. So everything that springs from the book–film, curriculum, audio versions, toys–are under the purview of the agent. No other agent has a right to attempt to sell these subsidiary rights. (The first agent might well work with sub-agents, such as a film agent, in exercising a book’s rights. That’s a very different matter.)
Some agents’ contracts have a twist to this concept. They state that this agent will have a claim to the commission on any money that book ever makes. That means, if the publisher returns the book’s rights to the author and a second agent places the book with a new publisher, the first agent receives her commission. The reasoning behind this arrangement is that the book sold well enough at the initial publisher to generate interest from the second publisher, and the first agent was the one who did the work for the title at the beginning of the string of events.
While I understand the reasoning, I have to say I don’t agree with the concept. Once the rights are returned to the author, unless that writer still is represented by the same agent, it’s a whole new game as to what happens to those rights.
These are the key points I would suggest you check out when reading an agency agreement. Are there other issues you’ve wondered about? Now’s your chance to ask!
It’s early here, but I wanted to ask this question while it’s bouncing around, quite alone, in my head.
Since no estoy an American, what about international clients and the varying rights to US and overseas sales, distribution, etc ? Because some people consider Canada to be “overseas” or “foreign”. (I know, right? Has anyone crossed the border in Calais, Maine? Perhaps Point Roberts, Washington? I’ve had tougher experiences in the grocery store line-up.)
And please don’t ask if I need the contract translated into French.
What happens if the agent gives up agenting to follow her dream to join Riverdance? I’m thinking the contract stays with the agency, but what if the agency itself folds? Is the writer on her own?
Oh, and what if the whole Michael Flatley thing is an epic fail and the agent comes back and restarts her career, are all contracts revived? Or does the agent start from scratch?
Betcha didn’t think you’d have Riverdance music buzzing in your ear first thing in the morning.
I’ve wondered the same thing about what happens if your agent leaves the agency, whether to become an agent elsewhere or to quit agenting altogether.
When my books were traditionally published, I had 3 different agents, 2 of whom retired. But their explicit understanding with me, via writing and verbal communication, was that if they left the agency where they were when I signed on with them, to start their own agency or to join a larger one, for example, their stable of authors would accompany them to the new agency. My last agent contract was 2007, but I think it’s still true for most agents/agencies operating in NY at this date.
Jennifer, many US agents have Canadian clients, including those in our agency. We also have Australian and Great Britain clients. We’ve never encountered problems since our clients want to be published by U.S. publishers, and U.S. publishers distribute into these English-speaking countries.
Your question about the Riverdancing agent is that, if the agent is with an agency with multiple agents, the clients stay with the agency. Their agreement isn’t with the agent but the agency. If they choose not to continue with that agency, then the writer would hopefully have an at will agreement and could leave after 30 days.
If the agency folds (which is an uncommon occurrence), the agreement would end, and the writer would be on his or her own. Depending on the agency’s inclination, the owner might well contact other agents and make arrangements for them to take a close look at the client list. Or warn the agents of the closing and then recommend a variety of agents to the clients to contact. If the agent comes back to agenting, it’s a start-from-scratch venture.
Thank you!
My question is what if an author start off by writing books in a genre that an agent or agency represents (thrillers, traditional romance) but then eventually decides to write a book in a genre the agency does not represent (a sci-fi thriller, a romance that is more erotic then the agent represents)?
I should also add and then goes back what they the genre they originally started off with that agency.
Lori, communication with one’s agent is the key in this situation. The agent might decide to extend his or her territory and continue to represent that client in the new genre. Or the agent might let the client go at that point. When the author returns to the first genre, he or she might be with a new agent who also represents that genre. Or, the author might ask the first agent if he or she is interested in renewing the relationship. There are so many variables in this scenario–what genres does the second agent work in, did the first agent and the author part on good terms, how much time lapsed in the switches, etc.
I’d like to know about these kinds of situations, too.
I read recently of a few agents that do not want to work with clients with multiple agents for different genres. Is this common?
Janet, in your second bulleted point, you gave the example of an agent stating they may only represent one genre (like children’s books) in the contract. If that’s the case, yet the author also wants to write non-fiction (or, another example, an author has an agent in the general market, but would also like to write for the Christian market), what do you recommend the author doing? Wait until he/she finds an agent to represent it all? Or find a second agent who doesn’t mind working with a client who has an agent for a different genre?
I have a feeling the comments are going to be quite enlightening today, too!
Caroline, many agents don’t care to work with clients who have multiple agents. It’s complex to monitor what projects the author is working on, what the due dates and release dates are, and how much time that writer will need to promote a new title. If one agent wants the author to write a novel every nine months to get momentum going, but the other agent wants the author to write a nonfiction book every six months…well, how does that get worked out? And if the agents are dependent on the author writing regularly so the agents have consistent advances to infuse cash into the agencies, there can be a lot at stake. The coordinating between the agents is pretty complex, and each of them needs to be willing to be a team player. It can happen that way, but it can also turn into a big rivalry.
Regarding the writer who does write in two genres, how should that person proceed in finding an agent? The two examples you gave: children’s books and nonfiction; Christian market and general market, both probably would work best to have two different agents. It’s highly unlikely you can find an agent who has a strong network in both children’s books and nonfiction–there is virtually no overlap. And you want an agent who’s keeping up in your areas of writing. With the general market and the Christian market, there’s more overlap as the boundaries between the two blur more each year. You might find an agent who can manage both. But it is hard to have a strong network in both areas; one is likely to be weaker than the other.
The larger question is why is someone trying to write for two markets? It’s not only complex to work out the agent side of the equation, but this writer is trying to grow two businesses with two distinct audiences. That means the writer needs two personae: two websites, two Facebook pages, two Twitter accounts, two newsletters, etc.
I know that when you’re first starting to write, you try out different types of writing to find which one takes off, but at some point (the sooner, the better) the author should choose between the two. Yet the goal of acquiring two agents says that, long-term, you plan to write for two audiences and to have two businesses.
Janet, thanks for your responses!
I was thinking about that scenario from the writer’s perspective too, so I appreciate how you likened it to two separate businesses. Thank you for describing the issue from all sides as you’ve done!
Thanks for this information, Janet!
If an agent does not generally offer a written contract, can a new client request one?
If the agent doesn’t see the need for a contract but the writer does, this might mean the two aren’t a good match. They have different ways of seeing the relationship from the beginning.
As the writer, I would ask the agent why he or she has chosen to handle the relationship this way. Listen carefully to your instincts; does the answer satisfy you or send up warning signals?
Thank you, Janet, for another wonderfully informative blog. As an unpublished writer who is hoping to start querying soon, I have to say that I would find it heart-crushing to turn down an agent who has agreed to represent me. However, I wouldn’t want to get locked into a three-year contract with an agent whom I didn’t know well. As you pointed out, I might regret it before the end of the first year, if she turned out to be the type of agent you wrote about last Monday. This brings me to my question. In general, how receptive are respectable agents to some negotiation of the agent-author contract? I, of course, wouldn’t nitpick. I’m referring to big issues, such as the term of the contract or even the schedule for the next book. For example, the agent might put in the contract that the next book should be completed in six months, whereas, I might feel that I realistically need nine months and then other books in a shorter time once I’ve gotten used to writing on a schedule.
Christine, certainly you should have a conversation about the time period the author-agent agreement is in effect, if it specifies a longer time than you’re comfortable with. This is a good opportunity to have a conversation; it will teach you a lot about how the agent works and how the two of you communicate. You might not get the time-frame changed, but you might end up being more comfortable with it.
Author-agent agreements don’t, as far as I’ve seen, require you to complete projects at a certain pace. That gets defined in your agreements with publishing houses. Certainly agents want productive clients, but that idea becomes counter-productive if clients aren’t able to produce solid projects.
Thank you, Janet. Blessings.
A teaching methods instructor once said something in a class I was taking that I believe has broad application in many areas of life: “Aim at nothing and you’ll hit it every time.” I would be very uncomfortable without a contract in writing, because it would feel to me like neither of us knew precisely where we were headed as business partners. I need the security of having at least a few “what if’s” answered in a way that is clear, and for me “clear” means “in writing that we both understand.” It just seems a more professional approach to me.
I think it is more professional, Stephanie. In my opinion, not having a written contract makes both the author and the agent vulnerable. But, of the two, I’d say the agent is the most vulnerable. A client can walk away from the relationship once the agent has placed a project and has an offer on the table–and the agent might very well not get paid for the work done.
Thanks for this post, Janet. It comes at a great time.
One question I have: If you are publishing nonfiction with a small reputable press that doesn’t work with agents and you write fiction that you seek representation for, is there any difficulty with continuing to write the nonfiction work without your agent representing that or getting a commission on that?
Thanks for your thoughts.
Michelle, first, why doesn’t the press work with agents? If the answer is because agents would negotiate better pay or fairer terms, then the question becomes, why is the author writing for that press rather than for another publisher that can pay a better wage? Second, does the nonfiction publisher ask the writer to agree to an option or a noncompete clause? That could limit future possibilities not only on the nonfiction side but also in writing fiction.
Do you see where I’m going? An agent might be a very good element to insert in that small-publishing house relationship.
But the agent might be fine with letting that work be a side job for the author, with the agent not being involved and therefore not receiving a commission. It depends on the agent. If the agent doesn’t want to be involved, then this exception needs to be spelled out in the representation agreement.
Thanks for the information, Janet. I appreciate the insight.
What an eye-opener! Thank you for this much needed and valuable information -I really appreciate it, as do all the others who have read this blog and gained knowledge about agent/author contracts.
Sincerely,
Carole Avila
I’m glad this info is helpful, Carole.
EXCELLENT topic, Janet!! I’ve been documenting questions to ask an agent and a list of items to confirm in publisher contracts.
My list includes the below but I am wondering how would they be presented in technical terms.
Appreciate the feedback!
For publishers:
— Ability to be published with another publisher for future projects (I understand the series would not apply.)
–Bankruptcy. If a publisher files bankruptcy I retain the rights back to my book in a sufficient amount of time.
–Out of print clause (what do I need to look out for?)
–Reasonable amount of time to edit.
Also I imagine it is pretty clear cut in an agent’s contract where it would state if they will represent only the one project or all, correct?
Are there certain clauses to look for the items I included above.
THANK YOU!
Martha, yes, the breadth of what an agent is representing should be very clear in the agreement and generally is near the beginning of the agreement under the definition of “Works.”
Regarding the publishing contract questions, your first question falls under what is called the “noncompete” or “conflciting publication.” The agreement spells what would be considered competition that you must not create for the title(s) being contracted. It’s an important section to read carefully. The option might also limit writing for other publishers.
Bankruptcy: the likelihood you’ll get your rights back in case of bankruptcy should not be taken for granted. Your work is the largest segment of the publisher’s assets. Some contracts offer the rights back automatically; others have restrictions; some state the book’s rights will not be returned to you.But be aware, even if you don’t like what the bankruptcy section states, it’s highly unlikely the publisher will change the wording. It’s a non-negotiable generally.
Reasonable amount of time to edit: Some contracts spell out how much time you’ll be given. Some will specify that you’ll be given a “reasonable” amount of time. How that gets parsed in reality is hard to say. You usually can find this discussed in the “manuscript” or “publication of the Work” sections.
I hope that helps!
Hi Janet,
As it turns out, I signed with the agent who had the one page contract, BUT she was very open to revisions I suggested and I ran it by an attorney who is an author and who writes lots of contracts. It is now a two page agreement.
So, to your list, I’d add dialogue with the agency about what you’d like to see in the contract (which of course means you have to know). One of the reasons I chose to go with this agency was their flexibility and professionalism in working with me to close the deal.
Thanks for your help and for another great post.
Hi!
Well I find myself in a situation looking for a good contract for my mother! Her genre is children’s and she is 85 years old with no exposure ever.
I have a friend who has been in the talent and modeling agency for 35 years!
This person is a friend but we have still agreed to write a one page contract!
I am looking for advice on how to revamp her talent contact and make it work for children’s stories and poems!
Being my mom is 85 years old and the friend is not up on writers this would be where the help is required!
I will send mom’s work off to publishers and so will she! She just asked if I would add to her contract!