Killing the Sacred Cows of Publishing: Agent Agreements

Okay, without a doubt, the silliest thing that has ever come along is agents having writers sign an agreement.

To understand how silly, just put this in real world terms instead of writing terms. Think about walking into a job interview with an employer and handing the employer an agreement that you wrote up that the employer must sign before you will work for him. Employer is going to frown and say, “I don’t think so.”

An employer should be handing an employee an employee agreement. In other words, with agents it should be exactly the other way around than it is now. Duh. Shows how bad in general writers are in business.

Writers should hand agents an employment agreement defining what the terms of the employment of the agent will be and so on. I’m not even sure when this myth of agent agreements started up. Sometime in the last twenty years when a young bunch of agents started thinking they controlled the writer instead of the other way around. More than likely it started because writers are bad at business and agents just needed to protect themselves if things went wrong. Then agents realized that they had an opportunity and have taken advantage of it.

I have never signed an agency agreement and would never do so. I have always considered them the dumbest thing to ever come down the pike. Of course, I did go to law school, so I am fairly clear on the concept.

But that said, since we are pounding on the writer/agent myths in all the comments after the last Killing Sacred Cows of Publishing chapter, (And you should read all the comments if you haven’t before going father) I figured this chapter would be a fine time to develop the bones of an agreement that writers should hand agents. Or at least a checklist that writers can give a perspective agent so that both understand the terms of their employee/employer relationship. Or, if nothing else, a checklist of questions to ask an employee you are thinking of hiring.

This is standard in much of business, and, of course, a contract between a publisher and a writer defines the terms of that working relationship between partners in great detail. (Don’t even get me going on the stupidity of an agency clause in a publishing contract. Sigh.)

So, making a large assumption here first. As Laura Resnick pointed out in her great comments after the last agent post, an agent these days is becoming less and less valuable to many writers. And less needed. And many writers are choosing to hire an Intellectual Properties attorney to do contracts. So this checklist is only for those thinking of hiring an agent. I want to be clear on the fact that I agree that an agent is not required.

But if you do decide to try an agent to help negotiate a contract, at least hire the agent under your terms.

And feel free to copy this list and structure it into any form of agreement you would like. You are the boss. Make it work for you.

Also, please note that I will be coming back into this post and adding in suggestions from the comments section after this post, so this will be a developing agreement as the discussion goes onward. (If you see a clause or section in [–] it has been added because of the comments.)

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EMPLOYMENT AGREEMENT (or checklist for hiring a literary agent)

I, _______(agent name)_________ agree to the following terms in relationship to my employment as the literary agent for __________(writer name)______.

Part One: MAIN DUTIES

1) Negotiate Book Contracts. The agent will keep the writer completely informed at every step of any contract negotiation. Agent will make no decisions for the writer. Negotiations will be done at the best speed possible.

2) Sub-rights (or subrights). Agent will send the book or project to all appropriate sub-right agents depending on what is allowed under the contract with the first publisher. Agent will make best efforts to sell available sub-rights to any project of the writers. Agent will keep the writer informed as to where any project has been sent, and any and all responses.

3) Money and Accounting. Agent will pass the writer’s share of money from any project through to the writer within two days of arrival. Agent will do a monthly accounting for the writer of all money received under the writer’s name from all sources. A full year-end accounting will be sent to the author within two weeks of the end of the year along with any appropriate tax forms.

4) Offers. Agent will pass any offer from any source to the writer for approval, no matter the size or source. Under this agreement, agent has no right to speak for the writer in any fashion in decisions on offers without first consulting with the writer.

5) Marketing of Work. If writer so requests, agent will market a new work to appropriate publishers. All cover letters to editors will be approved by the writer, all extra material sent along, including bio material and pitches or proposals will be approved by the writer before being sent. Markets will be agreed upon between the agent and the writer. If so requested, agent will keep the product on the market until the writer decides it is no longer appropriate for the agent to market said work. All rejections and letters from editors about the project will be forwarded to the writer at once.

Part Two: AGREEMENTS: WRITER AND AGENT AGREE on the following terms of this employment of agent by the writer.

1) 15% Fee. Agent will receive 15% of money paid to writer for any project the agent sold or negotiated. 20% Fee for all sub-rights sold, to be divided 10% to sub-agent and 10% to agent in this agreement if a sub-agent is involved. If no sub-agent, the 15% fee applies. [Writer has no duty to pay the agent any commission on any book or project not worked on by the agent.]

2) Continuation after Employment Termination. Said fees stated in #1 will continue for the life of the underlying contract of each project.

3) Termination of this Agreement. This agreement may be canceled by either party without cause at any time on written notice to the other party.

4) Privacy. All dealings on sales and contracts and financial of the writer shall remain private between the agent and the author. Any breach will lead to immediate termination and the cancellation of all money owed to the agent under both clause #1 and #2.

5) Transfer of Agreement. This agreement can not be transfered in any way. The agreement is terminated upon the death of either party or the agent leaving the business. This agreement does not transfer to an agency in general.

Part Three: UNDERSTANDINGS

1) Timely Reading. It is understood that the agent will make a best effort to read the author’s manuscript to be marketed in a timely manner.

2) Timely Marketing. It is understood that the marketing of a manuscript will occur within one month of the agent’s receiving a new manuscript from the writer unless otherwise agreed upon by both parties.

3) Refusal to Market. It is understood by both parties that for one reason or another, the agent will not want to market a certain project. The agent has the right to refuse for any reason to market a project and the writer is then free to market it in any way the writer deems fit. [It is understood that the writer has no obligation to pay the agent any fee for any project not worked on in some fashion by the agent.]

[4) Speed of Production. It is understood that the writer is under no obligation to produce any certain amount of work for the agent. However, in reverse, if the amount of workload the writer is producing becomes too much for the agent, the agent under #3 in this section has the right to refuse to market or work on certain projects.]

5) Feedback. It is understood that no comments about the manuscript are needed or wanted from the agent unless asked for by the writer.

6) Career Planning. It is understood that no career planning is needed or wanted from the agent unless requested by the writer.

————————————–

Okay, how would a writer go about using the above agreement? A number of ways, actually.

First off, you could just type it up into a legal agreement (contract) and hand it to an agent you are interested in. To be honest, that might get some interesting results. Not sure what the results would be, but it would be interesting to say the least. It would show you as a firm business person, that’s for sure. That might be good for some, not so good for others. Remember, all legal contracts are negotiable before signing.

Second, and a more of a logical way to present this would be to talk to the agent on the phone and back and forth on e-mail, then when you have the parts of the above agreement you want, write a letter to the agent as a summary or deal memo as they are called. Your letter would start, “I want to make sure I have down in writing everything we talked about and agreed to.” Then have the agent agree and you have a working agreement without the formality of the above contract.

Third, use this as a guideline to search for the right agent who does most of these things anyway. Develop a question sheet from the above terms and ask the agents you are interviewing.

What I basically laid out is how an agent functioned before this current wave of slush-reading, myth-riddled agents came into the mix. Many, many, many agents still function just like this, and would just shrug at the terms of this agreement. In fact, with one of those type of agents, you would never need to present this agreement. You would just know almost everything would work in the conversations and the following deal memo you sent them.

So, one last time, the agreements agents send writers are bogus at best. If you decide to hire an agent and they send you their agreement, just send them the one above, modified to the way you like it. If nothing else, you will get a conversation going with your future employee. And that might just save you years of pain and keep your relationship with your employee much happier.

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92 Responses to Killing the Sacred Cows of Publishing: Agent Agreements

  1. Dropping like poisoned birds, indeed!

    Kind of makes one feel rather like Fortinbras, wandering into the final scene of HAMLET to find the stage littered with bodies.

    Laura

  2. Laura, that makes sense. We all want to get rich with little risk and little time wasted. I know publishers have small margins.

    I’m just musing aloud that in order to capitalize on the next big thing, you (the writer, agent, or publisher) might want to take a little more risk, if you can afford it.

    Dean, looking forward to your next cow-killing!
    Melissa

  3. One thing I actually love about writing is that there is no material cost to generating product. Sure, there are workshops, printed paper, mailings, a workstation of some sort, and so on, but it’s just not the same as developing a product for sale for several thousand or million dollars that could fail in the long run. Of course, one can spend considerable money developing one’s craft.

    That said, the one cost of a writing project, and a very serious one, is time. It’s been said often that the phrase “Time is money” is an insult to time. More money can always be generated, though it might be difficult. But time is a precious commodity that once spent is lost forever.

    So we lose time when generating a new project that could fail, but we also gain experience, and our “failed” project might ultimately be picked up. Furthermore, if we didn’t write, we would spend that time doing things possibly far less productive.

    At the end of the day, if I don’t write, I read, watch television, or play video games. Sure, those things might entertain me (some less than others), but there is an extremely low likelihood that I will ever earn any money doing that, and even less likelihood that I will entertain someone else, which is ultimately the goal.

    So I write, and I am thankful that I can develop my craft at relatively low out-of-pocket expense.

  4. For the last 14 months I have been thinking about the agent myth. The first time I heard of it (at master class), it rang true as a dropping stone. I understood it intellectually. I believed it wholeheartedly. I was even excited by the possibilities the truth opened up for my career. But I’ve never had the nerve to buck against the accepted ways of doing things and see what happens when the rubber hits the road. Not so coincidentally, I haven’t sent a query yet. This series of posts and comments have finally gotten me there. I will feel nervous, second guess my choices, but I WILL be sending queries to editors not agents. My tipping point has finally been found. Thanks for the good info, especially the personal experience stories.

  5. Russ Crossley says:

    Jeremy et al:

    I hear the myth spouted off all the time even from established pros, who then tell me privately they don’t actually believe what they’re saying. And at conferences I’ve heard many editors on panels say they only accept agented submissions just as their published guidelines state.

    Now in complete disconnect with these public statements I’ve had pitch meetings with the same editor. After my pitch the editor told me to send the manuscript to them directly not through an agent. What’s with that?

    Also, as a relative newbie I mail direct to editors all the time and only one wrote back we don’t accept unagented submissions, which I infer to mean they didn’t like the manuscript. BTW This one out of dozens.

    When you think about this in simple terms why would I send my work to someone who can’t pay me? I think of Laura’s example of the big agent with big, and ultimately empty, promises is a perfect example why you would sell the manuscript first then get the agent (or IP lawyer) to negociate the details under your direction and with your approval. And if you don’t know anything about publishing contracts you better find out about them.

    As many have said here the myths around agents are deeply ingrained and more of us need to challenge the myth and finally crack this egg.

  6. Helen Brenna says:

    Since we’re, to some degree, fantasizing here … and I apologize if anyone else has brought up the same point, but …

    The root of the problem seems to stem from the fact that the publisher pays THE AGENT first. Maybe the the publishers should be paying THE WRITER first. Then the writer cuts a check to the agent.

    Wow. Big duh.

    • dwsmith says:

      Helen, all you have to do is ask for that in the contract and it can happen. The hard part is breaking the mold with how some agents think. But many, many writers do that now, and I would never think of doing it any other way at this point. Pay the writer first or split payments. Both work great and solve a lot of issues.

  7. Helen,

    That is a REALLY interesting suggestion. And what’s equally interesting to me: This NEVER ONCE OCCURRED TO ME.

    The idea that money flows to the agent FIRST– or, at most, that it flows simultaneously to the writer and the agent, in a split-payments arrangement–is so established and ingrained… that the idea that the money could flow FIRST to the writer, who would then pay the agent… has never once occurred to me. Even though that is EXACTLY how I pay my lawyer! (She works, she bills me, and then I write her a check.)

    I would be SO interested to see writers start introducing this concept in their interviews and negotiations with prospective agents.

    I also think that the vast majority of writers will NEVER introduce this concept. The vast majority of writers want to hire an agent, not to overturn the way the agenting business model has (at least within living memory) always worked.

    I also think that, from a practical perspective that I mentioned earlier, a lot of writers wouldn’t actually WANT the money coming to them first. If a writer’s income comes, over the course of 10 years, from 3 different US publishers and 20 different foreign publishers, then most writers just want to deal with ONE business (their agent) rather than logging mail and payments twice a year from 23 different businesses, all of whom pay on different schedules (and sometimes in different currencies). Keeping track of collecting, logging, and dividing all those payments is a good example of a task that almost all writers would prefer their agent simply do for them. Similarly, most writers don’t want to have to notify ALL those different businesses if they change addresses, or if they’re at a summer home for part of every year, or if they’re traveling, or in hospital for 4 weeks, etc. They find it less headache to let an agent deal with all that, so that they, in turn, just have to deal with an agent.

    Meanwhile, I don’t think there are enough hours in the day for me to list all the ways I imagine that agents would object to the writer being paid first and then paying the agent… but the mind boggles! (g)

  8. I suppose if the writer were being paid by twenty-three different sources, and therefore is generating enough income to afford it, he could hire a financial management firm to handle all of that.

    The firm could receive payments, deposit into appropriate accounts (do publishers ever pay by direct deposit?), and inform of address changes. If I think about it, I can come up with many other tasks to be performed by that firm.

    Then all those things would be managed by someone who’s actually set up to manage them, rather than an agent, who shouldn’t be.

    I’m sure there are authors who do such a thing, just like there are athletes and actors that do the same thing (of course, many of those hire bad ones).

    And given that agents want to read the slush, demand rewrites, give career advice, assign writing projects, and handle financial management, I’m surprised that none of them want to prepare tax returns as well. Though I wouldn’t put it past them.

    But I think that might be where all (I hope) writers would draw the line. “Why in the hell would I pay an agent to do my taxes when I can hire an accountant?”

    “Bingo, Writer boy. Bingo. So why in the hell would you hire one to manage your money and distribute funds to you?”

    Actually, now that I’m on this, it brings me to a great point. Having the agent be paid first and then having them distribute the writer’s funds to him has a direct, ridiculous equivalent.

    A business opens its doors and begins to manufacture products. It also hires some employees to handle certain tasks within the company. The business then sells the manufactured products to the market, but it does not demand or accept payment directly from its customers. Rather, it has the customers pay its EMPLOYEES all the reƿenues first. Then the employees deduct their salary and pay the remainder to the company.

    I think we can all agree that’s the most ridiculous business proposal ever created. And yet it’s how the bulk of the publishing industry is designed. That’s just asinine.

    • dwsmith says:

      Jeremy, again, as Laura has pointed out, in a large number of cases, this system works fine for many writers and I would never try to rock those writers out of a system working for them.

      But it does get kind of head-shaking when you come at the writer/agent relationship from any kind of logical real-world business perspective. In a number of places that are discussing this, people are saying I have an advantage because of my three years of law school. I find that kind of funny because in essence they are saying “Dean has an advantage because he knows good business practice and I don’t have to know that.” All I am saying is that writers need to know business. I have no desire to change the agent system, I just want writers to take responsibility for their decisions. And make informed decisions when it comes to hiring someone to deal with money and careers.

      Informed decisions. If writers would just do that when hiring agents, most of these problems would just vanish. And so would a lot of the scam and slush-reading agents, and publishers would be forced to find another door to hold out the slush. But it is the writers that have to say to a perspective agent, “Tell me something about yourself and your business.” Before they hire them.

      In other words, use that list of questions and just interview your future employee.

  9. Heh. Economics of employment, so to speak.

    I have conversations all the time about tipping of restaurant workers. I am in the “good tip for good service” camp.

    My wife, having spent many years in the restaurant business, feels guilty if she doesn’t leave a substantial tip, unless the server commits some egregious offense. She feels that if people don’t tip well, then the servers can’t afford to live. That’s true, but I don’t feel bad about that at all because it’s a natural and intended consequence of the tip system.

    I tell her that if everyone who felt they got bad service from a particular server left a bad tip, over time that server would see the writing on the wall and either improve his service or find another job in another field.

    Kind of the same as the writer-agent model. As long as writers keep feeding the bad agents, not only will they keep working in the same way, but more and more people will flock to that group because it is easier work. If writers insist on hiring agents for what they are intended and expecting them to perform that work and nothing more or less, the bad agents would either have to improve or go by the wayside.

    But most people aren’t aware of this simple dynamic, and choose to ignore it or assert that it isn’t true when presented with that logical argument.

  10. Steve Lewis says:

    I have to agree with Jeremy on the whole tipping analogy. I’ve worked in pretty much every position in the restaurant field except General Manager and Kitchen Manager ( and sadly that’s not an exaggeration, I truly have done it all) and I wish people would leave bad tips when the server does a crappy job. I hate the sense of entitlement and arrogance that a lot of servers, and a lot of other workers including agents, have these days.

    I know that makes me sound like an old man spouting stories of ” Back in my day…” but I think it’s true. I think a lot of the problems that we have with agents and, even a lot of the professional courtesy problems that Kris mentions on her blog, come from this type of mindset. I can’t tell you how many servers I’ve worked with have that have been rude to tables and been shocked that they got a bad tip. Seriously? And I think there is a definite corallary with agents. Also, I think that this relates to what Michael Stackpole is saying on his blog. I think too many people want to have things handed to them and don’t want to work. They see writing like winning the lottery. I used to work in a music club where we booked national acts and you’d see the same mentally with a lot of the local bands. They think that it’s the freakin’ lottery not hard work.

    I speak for anyone else but I like it when I’ve worked my arse off and I accomplish something. I feel like Tom Hanks in that scene from Castaway, “Look at me, I’ve made fire!” It could be a fairly simple thing but when it’s something important to me, I feel like the smartest man alive when I accomplish a goal.

    Anyway, I know this is a bit of a heavy rant from the guy who usually makes jokes about angry cows but what Jeremy said touched a nerve.

    Cheers,

    Steve

  11. Matt Buchman says:

    A perseverance toy. Years ago, from Levenger I think, I picked up a pewter paperweight ring that’s fun to play with. I use it to keep my hands busy when I’m proofing or pondering. Engraving reads: “The secret to success is constancy to purpose.” -Benjamin Disraeli

  12. Matt Buchman says:

    Something I didn’t see in here. When an agent is terminated, they remain the agent-of-record for the works they have successfully sold. How about for the rights that haven’t been sold to that work? Agent sells hard, paper, e-book and is then terminated. Author goes on to sell play, movie, audio. Are those commissions still typically tied back to the original agent-of-record?

    • dwsmith says:

      Matt, nope, if those rights are not in the original contract, then they are not considered part of the agreement with the original agent and the author is free to get other help with those. Just the rights sold in the original contract are all that stick with the original agent.

  13. Matt Buchman says:

    Just realized I never closed the loop on this one. The reason I asked (5/25) is I had a chance to review an agency agreement for an agent interested in representing and marketing my varied works. After all, I was pinging 1 agent for every 5 editors so I’d be “ready.” And this one got excited by my several genres, an unlikely, but possibly good fit. The agency agreement was short, simple, concise. In part 6 of 6 “Termination Clause” however…

    “Agent shall continue to act on behalf of Author in connection with any literary work sold prior to termination of this Agreement. Agent shall receive full commission for the disposition of any rights to the literary work sold after such termination takes effect.”

    The first sentence appears harmless, until I noticed “literary work” not “literary right.” And the second line made no sense.
    I asked outright to be clear, “So, if you sold paper and e-rights, then 2 years after termination I sell movie rights, you’d expect 15% of the movie rights?” “Well, yes, that’s an industry standard.” (nope!)

    I still couldn’t believe so I asked the scenario that happened to a friend: “If you sold the Polish translation rights, and nothing else. Then two years after termination I sold the paper-English rights?”
    The exact response: “No, I’m afraid that if we sold English print rights, and we parted ways, we would still be responsible for selling the unsold rights to the literary work.”

    FOREVER! Doesn’t even expire with the underlying publishing contract! So, if I left them, I’d owe them 15% of every right on any book they’d sold any right to and I’d owe my new agent 15%… Forever! YOIKS! (and people sign this!) This is not a small agency. They have a good reputation, I didn’t find any bad buzz on over a dozen blogs that I checked. And if an experienced agent at a reputable agency thinks that’s an industry standard… would I really want them negotiating my publishing contract? What else would they think was industry standard? And once I realized that, I asked the next question, why would I ever risk a lesser agent who would know even less?!?

    When “the deal” comes, I heading for a lawyer.

    • dwsmith says:

      Very sharp, Matt. Great catch. And an ugly clause that’s for sure, yet writers sign them all the time because of that “it’s standard” line, which of course it is not. What a scam artist. Wow! Luckily you avoided that trap. Nice job.

  14. I started writing when the agency commission was 10%. She sold nothing for me and we parted. I tried to get another. But after selling five romance novels myself (to major houses) agents still refused to represent me, So I stopped trying until 2009 when I heard of a just-starting agent and signed with her. But I’d been keeping up with the business, so my Agreement with her is that she does NOT get all the money: we get split checks. For my latest contract, I told her that if the publisher won’t write two checks, then just write one: TO ME. I’ll pay my agent her 15%.

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