Anatomy Of An Agency Agreement—Part One

As promised, I’m going to break down the agency agreement. Please remember that this is simply from my agency’s boilerplate and not all agency boilerplates are the same. Some might be better; some might be worse. Ultimately, many of them will have these elements in them.

Preamble
Most contracts begin with formal language that appoints the agent to represent you and the books you write, and for all rights derived from your literary material...

So that starts the agreement. For some authors, the agreement can be modified to only apply to one specific work or it can be left open to include all works.

If the latter, the crucial point is to make sure there is an “out” if the relationship doesn’t work out. For my contract, that stipulation comes in clause 10: Term of Agreement. Either party can terminate the agreement with a 30-day written notice.

In my mind, both parties should be happy and if they aren’t, then why would we want to continue working together? Makes sense to me but I have heard that other agents stipulate automatic time frames for the agreement such as 6 months, 1 year, or even 2 years.

I think 2 years is rather a long time and it would certainly feel like an eternity if the relationship wasn’t working out.

So negotiate for what feels comfortable for you.

Anatomy Of An Agency Agreement—Part Two

Bravely onward with the dissection of the agency agreement.

After the Preamble, the next clause is entitled Specific Representation.

This clause pretty much details what I’m going to represent the author for. I’m going to sell the print rights (primary rights) as well as the subrights (which means audio, film, serial etc.) These are called the secondary rights.

Not that exciting. Next clause is Best Efforts. I imagine you can pretty much decipher what that means. I’ll use my best effort to sell the project. This clause has another important factor though. It also stipulates if I choose not to represent a future project from the author, they are free to go forth and sell it themselves or whatever.

This rarely happens because the point is to take an author on for his/her career but one never knows so it’s only fair that the author has recourse.

The next paragraph is the Commissions/Agency Clause. This is a little more involved and since my brain is currently mush, I’ll wait until tomorrow to tackle.

I’m sure you can’t wait.

I do want to highlight here that not every agent or agency has an agreement. Often they go with a handshake (verbal or otherwise) and then rely on the agency clause in the publishing contract.

That’s fine. It is a standard practice. However, I’m of the mind that people should clearly outline the business relationship before embarking on it together and that’s what the agreement allows. It makes expectations clear and at the very least, it allows for a discussion about the agreement before the writer signs it. When the publisher contract hits the writer’s desk, ready for signing, and it’s the first time the author is seeing the agency clause, well, they might not feel comfortable enough to ask the necessary questions. Few writers would jeopardize their career by not signing the contract at that point but what an awful feeling it would be if the agency clause held rights into perpetuity (or something like that ) and the author is not comfortable with that. A contract ready to sign is not the time to be discussing those kinds of issues but I would recommend writers do so anyway.

The benefit of an Agency agreement is that with it, the writer is guaranteed a chance to ask all the necessary questions about the agency clause before signing on the publishing contract’s dotted line.

Anatomy Of An Agency Agreement—Part Three

Commissions/Agency Clause
Just as the heading suggests, this is where I outline my commission structure. It’s pretty standard in the industry to use 15% (rather than 10) but subrights commissions can vary from agency to agency. Some do 20% for film and translation. Some do 15% for film. and some do 25% for translation rights.

All of these structures are within the norm.

This clause also highlights that the agency will remit payments within one business week of receipt of publisher payment. (Peace of mind for the author so they’ll know that payment is prompt.)

There are some protection features for the agency as well. For example, if an author reneges on a publishing contract stipulation and they are completely at fault (by let’s say not delivering the manuscript—ever—because they’ve gone bonkers and are now living in a non-tech commune or something), then the author is responsible for refunding the full advance to the publisher. Since I did my job and the agency is not at fault, I get to keep the 15% paid to me and the author will have to make up the difference from his/her own pocket.

This has never happened by the way but it’s important for writers to know that they need to be fully responsible for their agreement if they sign a publisher contract.

I also have this clause in the paragraph:
“There will be an Agency clause in the Author-publisher contract stating the terms of this agency agreement and it is understood that the agency clause will be for the full term of that contract only and not in perpetuity.”

And that’s there for obvious reasons. No surprises when the publisher contract arrives.

Anatomy Of An Agency Agreement—Part Four

Great. It’s late at night and I get to tackle the most morbid clause of my agency agreement.

Clause 5 is entitled Dissolution of Agency: Death or Incapacitation of Principals of Agency.

You guessed it. This clause addresses what happens if I kick the bucket suddenly (or not so suddenly as the case might be). Not a particularly happy clause but an important one to have clearly outlined before signing on with an agent or agency.

The smaller or more boutique the agency, the more important this is. If an agent is a “one person show” for all practical purposes (and this isn’t a bad thing—lots of terrific agents aren’t part of a bigger, corporate agency), then it’s really important to know what happens to your literary material if this person (and hence the agency) is no more.

Ah, the little things that an agency agreement can make clear…