What to Look for in an Agent’s Contract
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!