October 20th, 2016
If you live in the world of information entrepreneurs, you may be one of many who will one day publish a book.
There are many ways to get published, and at some point you may be in discussions with a literary agent regarding representation of you and your work. There are a wide variety of literary agents in the publishing world, with various levels and types of expertise. And there are a variety of literary agency contracts, which at some point you may have the opportunity to review.
Hiring a literary agent is an exciting time when all the pieces fit. Sometimes these opportunities fall into your lap, as recently happened for one of my clients who has recently received a significant amount of recent press. Other times you may have to go looking for your own agent. Regardless, when you get to the point of reviewing a legal contract for agency representation, the promise of having your work represented and delivered to the world with the help of a qualified, experienced agent may certainly be cause for celebration, however often this excitement causes authors to fail to perform their due diligence when reviewing a proposed contract.
If you are reviewing a proposed contract (proposed by the agency), keep in mind it has almost certainly been drafted in favor of the agency. If you sign it as is, you may very well be restricting your rights in and to your work, and your future abilities to work on subsidiary projects or derivative works based on that work, amongst other things.
What does this mean?
To get to the point: if you are not going to hire your own legal counsel to make sure the agreement fairly represents your interests, at the very least keep this list with you to make sure that you address some of the biggest risks and most common pitfalls when it comes to negotiating a representation agreement with a literary agent or agency.
Please consider addressing each of the following in your agreement with a literary agent or agency:
- Clearly and properly define “The Work.” One of the first points that will be determined in this type of contract is “The Work” for which the agency will be representing you. Many agencies will propose very broad language in regards to the Work, which may attempt to include anything you ever publish, all future books, including subsidiary and derivative rights based on the Work (foreign rights, first and second serial rights, audio, television, theatrical, digital, etc.). I recommend to my clients that they very narrowly define the Work (one printed volume, published in English, to be sold in the United States, for example), and reserve as many of the additional rights as possible until you have an established relationship with an agency. You can always enter into a new contract if things go well with your first published volume represented by the agency, or you can broaden the scope of your existing contract. If the agency does a great job for you, if they represent your work well, they very well may bring you additional opportunities and you can put new contracts in place for those opportunities when appropriate, rather than making all subsidiary and derivative rights and future publications subject to this first agreement.
- Although it is typical to allow an agency to collect monies on your behalf (and retain a percentage, usually 15% for U.S. based representation), I generally recommend that Authors require advance approval of extraordinary expenses before they are incurred (and billed to you, the Author). This type of provision also helps to keep you apprised of efforts being made on your behalf by the Agency as they are being made.
- Include a provision that defines the obligations of the agent or agency. If you have written a book, it is in your interest to have an agent working on your behalf that is actively doing their work as an agent. Otherwise you should have a different agent. Your agent’s duties should be defined and put into writing. Your agent should very likely agree to: review your work and provide editorial guidance, develop a publishing strategy for your book, provide feedback and guidance regarding the publishing industry, actively represent your work and make contact with appropriate publishers, manage and retain all correspondence in regards to your work, communicate promptly and openly with you regarding important (if not all) developments, and maintain accurate records of royalties earned, including the Agency’s commissions.
- I also recommend that you incorporate a provision that requires that copies of all legal correspondence (regarding publishing contracts, etc), and all material correspondence related to offers regarding your work, be promptly duplicated and shared with you, whether in hard copy or electronic format.
- Insist that your signature be required before entering into any agreements or grant of rights regarding your work. Your agent should be able to represent you in the marketing of your work and connecting you to publishers and opportunities, but your signature should be required on all formal agreements regarding the publication or disposition of your work.
- Be very careful when reviewing language defining the Term of the agreement. I have reviewed proposed agreements that allow termination with sixty days notice, but reserve rights in the agency to continue (without limitation) to enter into deals on your behalf if the deals were proposed or submitted to publishers during the agency’s representation. I recommend a post-Term cutoff of six to nine months, within which term new deals might be put in place based on offers or communications made during the Term of your representation and for which your Agency will earn a commission. But make sure there is truly an end point to the representation. It is amazing how loosely drafted these provisions can be.
- In most business deals, including agency agreements, I recommend including a dispute resolution clause that requires mediation as the first step (where the parties obtain the assistance of a neutral third-party mediator to assist in resolution), and if mediation fails, arbitration upon the election of either party. I generally recommend that parties reserve the right to seek an injunction where necessary to preserve the rights of the parties (some issues require injunctive relief – by the time they get to trial or are heard in arbitration, it’s too late). For cost savings in business, mediation and arbitration are almost always more efficient (and therefore less expensive), than litigation and trial.
I hope this helps you to understand the ways that these agreements can be drafted heavily in favor of the literary agent or agency, and the steps to take to make sure that your rights are protected. I would love for you to have the opportunity of working with a qualified agent or agency while also retaining many rights and future opportunities for yourself – as I mention above, you can always expand the scope of your agreement later or put new contracts in place for various new opportunities.
There are of course, other points that should be addressed in any agency agreement, but as a starting point, I hope this will help you to feel more empowered in your discussions with any potential agent or agency.
Here are my last three posts in case you missed them!
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DISCLAIMER: THE INFORMATION PROVIDED IN THIS POST MAY CONTAIN LEGAL INFORMATION, BUT DOES NOT CONSTITUTE LEGAL ADVICE. NO RELATIONSHIP, INCLUDING ATTORNEY-CLIENT RELATIONSHIP, HAS BEEN FORMED AS A RESULT OF THIS POST. YOU ARE ADVISED TO SEEK THE ADVICE OF AN ATTORNEY LICENSED IN YOUR STATE IF YOU HAVE ANY QUESTIONS.