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.

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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.