5 important provisions in literary agent agreements
Getting an agent is hard work. You wrote a great book. You spent hours researching the perfect agent to query. You toiled over every word in that query before sending it off. Then, rejections came pouring in. Or worse, crickets.
Stephanie Meyer (of Twilight fame) sent out 15 queries before getting an agent. Some authors send many, many more. So, when an agent does make an offer, it is exciting. And it should be!
When the offer comes, it is a proposed contract. Often, it is a contract with a really, really long term. Before signing it, you should make sure the agent is someone you can see yourself working with for a really, really long time. And, you should understand a few key terms.
- Scope. Is the agreement worldwide in all media, or is it limited by territory or type of market? For example, an agent might only be interested in North America, and only English-language distribution rights. This agent will not put effort into selling translations or editions outside the territory. Do the agent’s services include ongoing assistance or just placement with the publisher? Some agents will continue to work with authors, assisting in editing, managing the relationship with the publisher or seeking new opportunities for exploiting the book. Others will check out as soon as they get the publishing deal signed.
- Term. How long does this deal last? Some agency agreements will be very short and some could last as long as the copyright (the life of the author plus 70 years after the author’s death). Even if an agreement expires, most will include some ongoing royalty for a specified period after the expiration.
- Subsidiary Rights. These are those rights beyond the actual books. Agents often try to keep this term vague and undefined. But, having a clear definition for serial rights, film and tv, theatrical performance, abridgments and other rights. Ideally, the agreement would break these down for territories and royalty rate.
- Accountability Provisions. These are the terms that, assuming all goes well, the writer shouldn’t need. The agency agreement often requires an agent to use best efforts to perform. An author should ask for periodic reporting on those efforts. Likewise, the agreement will generally provide that the agent collects the income, takes its ~15%, then pays out the author’s portion to the author. The author should insist on an audit right to confirm the agent’s calculations. The author should also ask for a short, specific time to remit payment after monies are received by the agent. If the agent is allowed to advance expenses, the author should ask for an approval right or cap on those expenses.
- Termination. Termination is the ending of an agreement before its natural expiration. This is especially important if the agreement is for a longer term. Authors should push for the ability to end the agreement early if the agent does not perform to the standard set in the agreement or just sits on all the rights beyond the initial book title. An agent who has the exclusive ability to shop for tv rights and never exploits them is a burden, not a boon. Authors should ask that any rights not exploited in a set period revert to the author.
Agents often present their agreements as informal letters. They may be written in “plain language” and avoid legal terms. This does not make them any less enforceable, or any less significant to an author’s career.