June 30, 2007

Chapter One: So I Married An Axe Murderer

PLEASE VISIT ON THE ARCHIVE ON THE LEFT FOR THE PREVIOUS CHAPTER (INTRODUCTION).


(Note: Remember that most of this blog will be dedicated to the publishing process after a manuscript is accepted by a publisher. But there is so much at stake regarding your choice of agents we're going to detour a bit and throw in our two cents on the subject.)

IN THIS SECTION

- Why you need an agent

- Resources to help you research and find agents

- Lessons to learn from others

- The standard author-agent agreement explained

- The rules of fair play for all

- Changing agents


When I worked in corporate publishing the “slush pile” of unsolicited manuscripts under my desk stayed at least waist high. I’d throw them in the trash when the custodian arrived at 7:30pm. I didn’t read them. Ever. And it’s not because I was this mean, old editor who didn’t want to give a starving writer a shot at the big time (as if one acquisitions editor wields that kind of power); it was strictly an issue of TIME—because next to the waist high slush pile sat another waist high stack of manuscripts from agents, and I had to read those.

Most publishers won’t accept unsolicited manuscripts; in other words, manuscripts NOT requested by the editor and/or NOT represented by a literary agent. Most authors know the routine, and yet the unsolicited manuscripts just keep coming! There is nothing we can say that will stop you from sending in your unrepresented manuscripts; but you must know that it’s a huge waste of time and money for you. I suppose there is the slight chance your manuscript will not make it into the dumpster, but instead fall to the ground next to the editor’s car. The editor might possibly find your manuscript while getting into the car and say, “Hmmm…what is this?” and then take it home to read with a nice port by the fire, only to realize that what lies in his hands is the next Great American Novel…. We want to encourage you, but you have better odds of getting struck by lightning.

WHY AN AGENT?

An agent opens doors that would normally be closed to you. The doors aren’t closed because publishing is some elitist club with pool boys and naked secretaries (although I’ve had some bosses that wish…). There are no secret handshakes or decoder rings. It’s just a question of efficiency.

An agent should have established relationships with many house editors and keep abreast of what those houses are looking to publish. As an author you wouldn’t know these things because you have one book to sell and that’s the one you care about. Agents and publishers are fishing in many ponds at once, and your one book is still just one book to them. We’ll say this now and we’ll say it a lot more in future blogs: NO ONE WILL CARE MORE ABOUT YOUR BOOK THAN YOU DO. Do not be bamboozled to think otherwise. Your book is your baby. To everyone else it’s just a stepchild.

An agent should also have some working knowledge of how the publishing process works and what contracts look like and how to negotiate them. An author won’t likely have this knowledge, so working with one is a headache to publishers. There’s too much room for a lawsuit when an author claims he or she wasn’t informed of this, that, or the other. (Lawsuits sort of ruin a warm and fuzzy publishing relationship.) Lawsuits aside, it’s a pain in the butt for the house to have to communicate every little thing to authors (and most authors want to know every…little…thing) when an agent should be doing that—should doesn’t always mean they do though.

The bottom line is that without an agent you probably won’t get your foot in the door.

FINDING AN AGENT

This is what you’ve really been waiting for. You probably even skipped everything before this header just to read this. Well, we hate to disappoint you but we're not going to tell you “how to find an agent.” We will, however, tell you about some good resources that might help you find an agent. Really, it would be a waste for us to regurgitate everything these resources would tell you, and anyway these folks are more knowledgeable on this subject. Check these out:

- Writer’s Market by Robert Lee Brewer

- Guide to Literary Agents edited by Joanna Masterson

- How to Get a Literary Agent by Michael Larsen

- Jeff Herman’s Guide to Book Publishers, Editors, & Literary Agents by Jeff Herman

- Agents Directory by Rachel Vater

- Christian Writers’ Market Guide by Sally Stuart

You can get these books in most bookstores, on Amazon, or even at your local library. They probably sell like hotcakes. We’d like to find one that doesn’t say the same thing as the rest though. If any readers have recommendations for other resources, please let us know and we’ll review them and add them to the list.

There are also several online resources for researching and finding an agent. Here is a list of some we’ve seen:

www.writers.net/agents.html (great posts and articles on this subject too)

www.sfwa.org/beware/agents.html (from the Science Fiction & Fantasy Writers of America)

Again, there are plenty more resources available. If you want to add to this list, please post a comment and we’ll review and add them.

Beware of sites that claim to be an authority on this subject and are instead just self-proclaimed “watchdogs” of the publishing industry. There are some disgruntled writers out there who have decided to take the world of publishing to task over their own failed efforts to break into A-list (or even Q-list) status. We’ve seen a few that make us cringe. One in particular (we won’t mention the name, but we will say the misspelling in their name is supposed to be, um, kitschy?). Not only does this site look like a fourth grader made it (no offense to fourth graders), but it is the most contentious site we’ve seen. Bitter, party of one! Your table is ready! This is a good example of a failed writer that makes a name for himself as a self-proclaimed watchdog. He is particularly angry at agents—we're guessing it’s because so many of them gave him the smackdown. If you want to get the same information but without all the hate just go to the SFWA site listed above.

Other resources we’ve found that are so amusing we visit them regularly just for kicks:

http://everyonewhosanyone.com/edus1.html (aside from dishing out all the contact info for nearly every editor and publisher in the business, this site is a hysterical roadmap of Gerard Jones’s efforts to get his book published. Read the correspondence he sends and receives. You’ll laugh yourself silly. (Note: Mr. Jones saw this and added us to his site. What an honor to be among his company. This is a guy who deserves a lot more than 15 minutes of fame!)

http://misssnark.blogspot.com/ Miss Snark. We adore this site. But it’s going into retirement and we have no idea how we will ever recover from this loss.

LESSONS FROM THE GOOD, THE BAD, AND THE HORRIBLE

Most agents are honest, hard-working, and good at what they do. Most authors go into their author-agent relationship a little nervous and wind up being very happy with the results. Chances are, when you find your agent, you'll have a good experience and you'll have a warm and friendly relationship for a long time.

Occasionally authors do not have a good experience, and we're going to use a couple examples of these bad apples to illustrate the red flags and the rules of fair play.

The problem with signing with an agent is that it’s like an old-fashioned marriage. No sex or cohabitation before the ink is dry. Here are some true stories that’ll make your skin crawl:

One for the Books: Married to the Mob

Our friend "Mark" is a fairly successful author. He is “married” to the agent from hell. It’s a big agency; one that commands a lot of sit-up-and-beg from publishers. Mark was acquired by this agent in mid-career, just when his books were starting to sell. He felt special to get picked up by this great and mighty firm. But Mark’s agent rep is a bipolar woman that worked in the lower echelons of this firm under the tyrannical top agent for fifteen years. She was promoted and given Mark as a consolation prize; perhaps for not going postal.

In the last year Mark was forced to reconsider his publisher after suffering through three years of unprofessional mistreatment and unfulfilled promises (both are gross understatements). In other words, he also had the publisher from hell. But Mark wasn’t allowed to communicate with his publisher; everything had to go through his agent, who displayed a sort of mean-spirited giddiness from her reckless control over Mark’s career. It was like leaving a nine-year-old bully in charge of a classroom for a day. The agent was so caustic that at one point the publisher put a restraining order on her to keep her from calling or visiting. The restraining order also included her clients.

Mark’s agent also had a tendency to edit his manuscripts (without his permission). More than once a book nearly went to print that was essentially not his book. Clearly his agent was not an editor.

Another tiny problem: Mark’s agency was in bed with this publisher (in other words, every author this agency acquired went to this publisher first and that’s usually where they landed), and his agent advised him…no, ordered him to stay.

Mark called us for advice. He trusts us so he let us see his contract with the publisher. After reviewing it we were certain he had every right to terminate his relationship. All he had to do was return the advance money they paid him for his next (unwritten) book. We didn’t have to surmise this--it was right there in black and white. But Mark’s agency didn’t tell him this; they told him he had to stay with the crappy publisher and he had no choice.

It was clear to Mark that he could and would leave the publisher, but he was afraid to tell his agent because he feared they would let him go and ruin his career. At first we told him, “That’s preposterous. They won’t do that.” But Mark sent us a series of emails from his agent that did indeed say, “It would be in your best interest to do what we advise. We can’t promise that your contract will be renewed with us and we can’t guarantee that your reputation won’t be damaged in the process…We would feel bad if you couldn’t find another agent or publisher.” WHAT?! We fully expected some guy named Rocko to show up at Mark’s door with a baseball bat and a set of brass knuckles. What Mark needed was the number to the Witness Protection Program.

We would have advised him to report his agency to the AAR (Association of Authors Representatives) and look for another agent, but we knew he wouldn’t do either. He just doesn’t have the confidence to fight it. He really thinks his career will be ruined if he goes against the wishes of his agent.

To add insult to injury, Mark can’t get any answers about his royalty statements and has been unable to audit his agent’s files on his books.

Oh…and his agent’s fee for making his life living hell is more than 25%. Will someone please hold my head while I vomit?

Clearly there are a number of red flags associated with Mark’s story.

#1: Mark’s agent had no experience as an agent; she was an inexperienced agency gopher that got “stuck” with Mark as a consolation prize for longevity. It’s okay to ask a prospective agent how many other authors they represent and what genres are their specialty. You should really have some dialogue with an agent you’re considering; get to know him; see if it’s someone you want to work with for an extended period of time.

#2: Your agent should be “in bed” with YOU, not a publisher—especially one particular publisher. The authors in Mark’s agency were not fair game to all publishers that fit; one publisher got first crack at everything. There is something inherently stinky about this arrangement, and it smells like kickback.

#3: Mark’s agent withheld the articles of his publishing agreement. If a publisher isn’t doing what the contract says they must do and you want to terminate your agreement or take some legal action (this should always be a last resort) your agent should be the first one to strap on a holster and go into battle with you, not pull out a rubber hose and beat you into submission.

#4: Your agent should never (we can’t even stress this point enough) ever use scare tactics to keep you “in line.” Unless Mark committed some horribly egregious crime against humanity, his writing career should not be ruined because he wanted to switch publishers—or agencies. For an agent to even insinuate that your career would be injured if you refused to heed his advice is the height of unprofessional behavior. These agents ought to be tarred and feathered.

#5: Mark’s agent should never edit his books. An agent may recommend editorial for your book before he tries to sell it. But make sure whoever edits your book is an independent editor, someone who is highly experienced in your genre. And be sure the agent isn’t getting paid a commission by the editor for the referral. We're hearing more about this every day and it’s scandalously unethical. We refer authors to editors all the time but we tell the author and the editor that their relationship is theirs and we don’t even want to be copied on their correspondence discussing fees. We only want to see developmental notes and then a finished manuscript.

#6: Mark’s agency commission is well over what is considered the industry standard. Watch out for agents that charge more than usual for the publishing industry. Standard commission for book agents is 15% of advances and royalties. Sometimes a contract will stipulate 20% if there is a sub-agent involved (a sub-agent may try and secure international publishing opportunities, for example; in which case your agent and the sub-agent would split the 20%). There are some agents that charge a little more than 15%, but anything more than 20% should be carefully considered.

One for the Books: All Work and No Pay

I took on a young writer a few years ago that no other agent would touch (I love underdogs); but her writing was fresh and she was a darling. I sent her a contract for a three-book series and, as per usual, recommended that she have her attorney look it over before signing. Turns out her uncle is a lawyer so he made some revisions to the contract and returned it to me. I accepted all his revisions, which were minor, and we ultimately executed the agreement.

I broke one of my cardinal rules about editing client manuscripts and put quite a bit of time into a copyedit on the three books because I knew she didn’t have a lot money and it would help me sell her books. She was thrilled with the outcome. I then went to work on my usual killer proposals.

Unlike some agents, I don’t slap a generic cover letter on a manuscript and proposal and mass mail to X-number of publishers and cross my fingers for luck. I spend a lot of time researching publishers, finding those few that are perfect fits and that might lead to a long-standing relationship between the publisher and my client. So I had my choices narrowed down to just two—because her books fit into a very narrow market. I told her about the two publishers I wanted to approach and she was very excited.

I found that one of my publisher choices was actually starting a new imprint that would be perfect for my client’s book series. I spent hours corresponding via email and telephone with the publisher, talking about their new line and how my author could successfully headline in her genre.

I sent proposals and manuscripts to both publishers. One publisher responded immediately with a rejection because my client was too green and they weren’t sure how their own books in that genre were going to do in the future. Understandable…but the publisher starting the new imprint was just getting off the ground and they were still interested but undecided. So we waited.

Very shortly after that I stopped representing this young lady. No hard feelings, I still adored her and her books and hoped that she would go on to do great things; but I had personal reasons behind lightening my workload that were unavoidable.

Fast forward to this past April when an editor at a publisher informed me that I was listed in the acknowledgments of a book—one I’d never heard of until the editor said the author’s name. It was this young writer! I was absolutely ecstatic! I emailed her immediately to tell her how proud I was of her. She emailed back and told me how exciting it was getting her books published and then mentioned how great the publisher had been…the publisher that started the new imprint…the publisher I spent hours courting…the publisher I sent the proposal and manuscripts to.

I emailed back and asked why the publisher didn’t contact me (as they should have since my name was listed as the representative on the proposal), and the young lady responded that they had “tried once” but then there was a mass exodus of employees from this publisher and the person left the company. She didn’t know what happened after that.

Going back to my author-agent agreement, I confirmed the survivable clause about commissions: if any publisher I pitch to should acquire this property, even after this agreement is terminated, I am still entitled to my commission. That’s pretty simple. So I contacted the publisher directly and said, in a nutshell, “ ‘sup?” I told them I wasn’t mad and I was sure it was an innocent mistake, given the rapid turnover during that time.

First the publisher said they were so sorry and that it would all be taken care of. They said the woman in charge of contacting me about the book left the company and no one could locate me after that. (They didn’t try very hard since my contact info was on the proposal and you can Google me and I’m all over the place.) Then, in a change of tone, they claimed the young author came to them “unagented,” which still doesn’t make sense since my contact info was on the proposal. A few days later the publisher freaked out. Then they did the most horrible thing imaginable: they left their young, first time author blowing in the wind. They said, “We’re not responsible. We didn’t do anything wrong. This is between you and the author.”

Obviously the publisher wasn’t going to pony up to any responsibility to their author, which I found utterly appalling that they would desert their young author like this; and unprofessional since it was their job to notify the agent that gave them the proposal. And my requests to the author to pay me directly were denied, so I had to call our attorney to enforce the survivable terms of the author-agent agreement. I still wasn’t mad, though, and was willing to chalk the whole thing up to an administrative oversight.

But then the author (or rather the author’s mother) claimed our agreement was void because her daughter didn’t know what she was signing and had no legal counsel. So I produced the contract revision and the email from the attorney—the attorney that was also the mother’s brother—that reviewed and revised the contract prior to signing.

Then the author’s mother claimed our agreement was void because I never communicated to her daughter where I pitched the books. So I produced the correspondence I had sent to the author about the two publishers, the rejection correspondence from the first publisher, and an email written by the author’s mother wherein she told someone else about the new imprint where I’d sent her daughter’s manuscripts.

Then the author’s mother claimed there was no proof that I was the one that sent the manuscripts to the publisher of the books. Not only did I produce the correspondence with the publisher, correspondence with the author, and the aforementioned correspondence from the mother to a third party, but I had the original tip-off: the acknowledgment in the author’s first book that plainly read: “Thank you to Angela DePriest for giving my book to (publisher’s name).” What more do we have to argue about here?

Our attorney is telling me the author now “allows” that I may be entitled to my 15% commission of the advance on the two (of three) books that have been published, but refuses to acknowledge my commission on book #3 and any royalties. They are asking that I sign a release for all future earnings with this book series.

Guess what? I’m not caving on this issue. I’m still not mad about this—more confused than anything—but I worked my tail off for her book deal, and she wouldn’t have the deal with that publisher if it wasn’t for me laying the groundwork. Sure, another publisher could have published her books and I would have been thrilled for her. But our agreement clearly states that if the books are sold to a publisher I approach then the commission is mine, no matter what, even if I stop representing her, for all time, until I’m dead. And last time I checked I was still breathing.

This is an ongoing legal battle and it’s become very expensive for us, but I will not give up. The saddest part of all (and I don’t know why I’m surprised by this) is that these are Christian books, written by a Christian author from a Christian family, published by a Christian publisher. I realize Jesus says, “If someone wants to sue you for your tunic, give him your cloak as well” (Matthew 5:40), and to “turn the other cheek” and all but this is not an “emotional” issue. It’s a legal one; a contractual one. Our agency cannot appear soft on our contracts and we will not allow anyone to take advantage of our efforts. Authors going into a relationship with us have to know we’ll defend them and protect them, but we’ll also protect ourselves.

The lessons we want you to take away from this are:

- if an agent represents you, puts work into selling your books, invests his own time and money into that end, and your book sells to a publisher he solicits, there is nothing unreasonable about the agent wanting to be paid his commission. That is what an agent does for a living.

- if the agent no longer represents you but your contract with him has survivable clauses about such commission, the agent will want to be paid.

- if you try to cheat your agent out of his commission the ensuing legal battle will eventually be made public and it’s going to hurt your reputation. You’ll lose the trust and respect of other authors, and publishers and agents will not feel comfortable working with you.

Most of the time we hear about authors that are abused by agents, and it’s wrong to silently stand by and do nothing. If we can protect authors, then we should protect them. But it’s a two-way street. Cheating an agent weakens the fiber of this industry, and shame on the author that tries to get away with it.

Remember, the reason you have an agent is because he can open doors for you that would normally be closed. The author-agent agreement is in place to protect you but also to protect the agent.

One for the Books: In God We Trust

Another good friend was about to sign with an agent, and she wanted us to review the agent’s contract. There were a lot of problems in the agreement but the scariest thing we saw was on the last page. It was nestled ominously within the arbitration clause. Basically it said, “You can’t sue me because we’re both Christians and we’re going to abide by 1 Corinthians 6:1-8 that says we can’t sue each other.” [Look back at the last section on “All Work, No Pay.”]

You are seriously muddying the waters of mutual protection when you sign a contract with this kind of “Christian” language in it. Since I am a Christian I can rip this apart without anyone saying, “Sounds like you hate Christian values!” Baloney. If we really were Christlike then we wouldn’t need contracts; but people (including Christians) have proven time and again that when the rubber meets the road they’re not going to do the good and right thing. It doesn’t matter how much holy water you throw on a contract, no court of law is going to recognize the argument, “You can’t sue me. I’m a Christian.”

There’s nothing wrong with mediation firms, but they’re only going to get you so much remedy before you have to hire an attorney. And make sure there is language in the contract that says, in a nutshell, “Loser pays all.” If you’re in the right and have to hire an attorney, why should you have to lose money to get what is rightfully yours?

THE AUTHOR-AGENT AGREEMENT

Your author-agent agreement doesn’t have to be a big, hairy deal spread out over forty-two pages. It should simply say what it means and mean what it says. You must read every word in that contract. Understand what every clause means. Ask as many questions as you need to ask in order to understand it. Most importantly, seek the advice of outside legal counsel before signing anything. If an agent says you have to sign immediately and there is no time for you to take the contract and read it or seek advice on it, then run like hell. No book deal is that urgent, no matter what the agent promises.

Now let’s go over what’s in a standard author-agent agreement, and we’ll provide notes where applicable. Remember that nearly every clause in your agreement is negotiable, and you should feel free to ask questions and suggest changes to any clause. We’re going to use our agency’s standard contract as a boilerplate here but most agents have their own boilerplate.

Author-Agent Agreement

On the following terms, I, [agent or agency name] (hereinafter, the Agent) hereby propose beginning [date] to act as agent for you, [author name] (hereinafter, the Author), to seek publication of the Author’s property (hereinafter, the Property), tentatively titled [title of Property or series], which is [brief description of Property or series] authored solely and exclusively by the Author. This Agreement applies only to [title of Property or series] and has no bearing on any other works—past, present or future—of the Author unless specifically agreed to in a separate contract.

Ang: This is simple stuff—agent name, your name, date, title and brief description of work. Some agents will want a long-term, open-ended agreement. We like to contract with an author to handle one book (or book series) at a time until we both know we like each other enough to establish a long-term commitment. I figure if we’re both still alive after going through one publishing endeavor together we might have a good thing going.

EXCLUSIVE AGENT. The Author hereby appoints the Agent to act as his/her exclusive representatives with respect to the Property:

a. in all geographical areas of the world: and

b. for the following markets: book publishing, magazines, motion picture, audio, video, and merchandising. Any rights not granted to the Agent are reserved to the Author.

As such, the Author understands that any individual interested in publishing, marketing, or exploiting the Property in any manner must communicate directly with the Agent. If any party approaches the Author to discuss exploitation of the Property, the Author will direct him or her to the Agent.

Ang: This clause means no one but the agent represents this body of work, and it explains where the agent has the right to sell the work and what ancillary areas are covered (book, magazine, film, etc.) It also details to the author that all inquiries must be directed to the agent. “Exploit” and “exploitation” can be such ugly words, but there is no negative connotation here; it just means: to advance or promote.

TERMINATION. This Agreement can and will be terminated by either party upon mailing a written thirty (30) day notice to terminate to the other party via US Mail or email. In the event of bankruptcy or insolvency of the Agent, this Agreement is automatically terminated. The rights and obligations under Paragraphs 5, 6, and 7 shall survive provided that in the event of termination, the Author shall have the right to have all payments (less commissions to the Agent) paid directly to the Author.

Ang: A good contract will give both parties an easy out. If our client is miserable with us, why would we force him to stay? Likewise, we shouldn’t have to stay in a business relationship where we’re miserable. You don’t even need a reason to terminate your agreement. Just give some notice and understand that there are going to be certain parts of the contract that will survive, even after termination. Our contract lets the author know that if we terminate our agreement and we’re receiving any monies on his behalf we’ll make arrangements to have payments sent directly to him.

DURATION: In the event Agent does not acquire a publisher for the Property within one year of the date of this Agreement’s execution, the Agreement will be automatically terminated; at which time the Author and Agent may agree to sign a new Agreement.

Ang: There would have to be some pretty extenuating circumstances to keep us from selling a book in a year; but you just never know with some books. There are a lot of factors involved in selling a book, especially in very narrow markets. Some agents have a six-month, nine-month, or even an open-ended timeline. Negotiate a timeframe that is comfortable for you.

REASONABLE EFFORTS. The Agent will make every reasonable effort to obtain the best possible offer for the Property. The Agent will report to the Author immediately any offer the Agent obtains and will generally keep the Author informed of the Agent’s activities under this contract.

Ang: This speaks for itself, I think, but it especially notes that the agent will report any offer made on the property. You can tell your agent you don’t want to field offers less than a certain amount, but you should put that in writing and otherwise expect to see each offer as it comes. Also, our contract states that we will keep our client “generally” informed of activities going on with his book. We don’t email or call clients every day to say, “No activity today!” That’s a little overkill. We report activity, not lack of activity. Be a sweet client, please, and remember that no news is good news so don’t be a pest.

AUTHORITY. Any offer the Agent may succeed in obtaining will be subject to the Author’s written acceptance, and will have no binding effect on the Author otherwise. The Author will be free to accept or reject any offer. The Agent’s authority will be limited only to obtaining offers and offering advice. The Agent will have no power or authority to close any sale or to make any binding commitment of any kind on behalf of the Author unless the Author grants acceptance authority to the Agent in writing via US Mail or email.

Ang: This is really important to us and we relate this to our clients. Unless you give your agent full power of attorney to make these decisions on your behalf, your agent should not have the authority to accept or reject offers. Your life will be a lot easier if you take responsibility for these decisions and not delegate someone that may make a mess of your book deal. An agent can offer you advice, but you have to decide whether to take it.

REPORTING. The Agent will report to the Author in writing monthly with all expenses and proceeds related to the Property. In addition, the Agent will report the nature of all queries and correspondence relating to the Property. The Agent shall also send copies of statements of accounts received by the Agent to the Author when rendered. If the Agent collects advance and royalty payments from the Publisher on behalf of the Author, the Agent shall provide the Author with a semi-annual accounting showing all income for the period, the clients’ names and addresses, the fees paid, the dates of payments, the amounts on which the Agent’s commissions are to be calculated, and the sums due less those amounts already paid. However, the Agent will make every effort to negotiate direct payments from the Publisher to the Author as that is the preferred method of payment.

Ang: This is very important! If there is any financial activity going on with your book, make sure your agent is keeping records according to generally accepted accounting principles and reporting these records to you once or twice a year. If there are no expenses or receipts, our clients won’t get a report from us that says, “No activity.” Again, we report activity, not lack of it. These days most publishers will make the author/agent split in house and it’s not necessary for the agent to receive all monies for the author. We like this arrangement very much, and you should try and negotiate this point as aggressively as possible. The fewer times money has to change hands the more efficient it is for everyone.

COMMISSIONS. If during the period of this Agreement the Agent brings the Author an offer that the Author accepts in writing, and the Author and the Publisher execute a publishing agreement, the Agent shall be entitled to a commission equal to fifteen percent (15%) of all proceeds, including advances, received from the Publisher for publications and/or production in the United States. For all publications and/or production outside of the United States the Agent is entitled to a commission of twenty percent (20%), which includes ten percent (10%) for any sub-agents involved. If no sub-agent is involved, the Agent’s commission will remain fifteen percent (15%) for all publications and/or production outside the United States. Should the Property be made into a serial or subject to merchandising, or dramatic (motion picture, television, radio) rights, the Agent will be entitled to fifteen percent (15%) of all proceeds, including advances. The same percentages apply to any subsequent sale of rights that derives from the initial sale of the Property, including, but not limited to the following: condensation, translation, anthology, periodicals, electronic formats and reproductions, television, motion picture, audio and video recordings, paperback, all serial rights, and commercial. If the Author sells or transfers publishing rights of the Property to a person or company to which the Agent submitted a proposal and/or manuscripts of the Property for the sale of those rights during the term of this Agreement, the Agent will be entitled to full commission even though the sale or transfer of rights takes place after this Agreement terminates. The Agent’s right to compensation for a sale or disposition of rights under this Agreement, once earned, will continue even after this Agreement terminates. The Agent is not entitled to any successor in interest in the event of Agent’s deaths. In this case, the Author has no further obligation to the Agent to pay commissions related to the Property.

Ang: This clause speaks for itself. It simply details what the agent’s commission will be in each instance of sale or use. Please note, again, the portion on commissions paid after termination. This is it, folks! This protects the agent from being stiffed.

PROCEEDS. The Agent will be entitled to collect on the Author’s behalf all proceeds derived from the sale of Property. The Agent will deduct commissions and forward all sums due to the Author along with any statements from the Publisher within three (3) weeks of the Agent’s receipt of proceeds or statements from the Publisher. In the event the Publisher will agree to separate payments to the Author and the Agent, the Agent will ensure that the Publisher pays the Author the amount due according to the Author’s contract with the Publisher. The Agent is obligated to try to negotiate direct payment to the Author as that is the preferred method of payment. Payments made to the Agent on behalf of the Author shall be deemed trust funds and shall not be intermingled with funds belonging to the Agent or any other clients of the Agent. In the event a Publisher pays the entire proceeds to the Agent, and the Agent is late in distributing funds to the Author, payments from the Agent shall be accompanied by interest calculated at the rate of ten percent (10%) per month thereafter. In the event a Publisher makes separate payments and the Publisher is late in distributing funds to the Author and/or the Agent, no interest shall be incurred.

Ang: This is an important clause and should be carefully negotiated. Again, your agent should arrange for the publisher to make the author/agent payment split in house. Most publishers will do that. But if your agent must receive funds for you then make sure your contract states that your monies will not be combined with other agency funds, and that you’ll receive accounting records for each transaction made. Don’t put yourself in a position where you don’t know how much money your books are making! There are crooked agents, just like in any other industry, and some will rip you off and sleep like a baby that night. Also, if your agent is receiving your money for you, make sure there is some incentive for your agent to pay you within a given timeframe. A late fee is an excellent incentive!

Here’s a little insider information: Some publishers hold on to money owed to freelancers until the last possible moment—usually when the freelancer threatens legal action. The question has always been, “It’s not that much money, why can’t they just pay it?” The answer is that money sitting in the bank gains interest. If they sit on that money long enough then they’ll have made in interest what little they owe the freelancer in the first place. Then when legal action is pursued, they pay up fast. We don’t know any agents or publishers that do this to authors, but we’ve heard stories through the grapevine that some do. So just protect yourself from this kind of practice by adding language about interest. An agent who is honest shouldn’t mind this language in the contract. However, don’t expect the agent to pay interest if the publisher is late in paying. You can bet if you haven’t been paid yet, then neither has your agent and he is going to be highly motivated to camp out on the publisher’s doorstep until the check is cut.

COSTS. The Agent will pay for all expenses that arise in selling the Property except: pre-sale editorial, or on multiple submissions, buying galleys and books; and obtaining legal advice. These costs paid by the Agent shall not exceed fifty dollars ($50) without the prior consent and written approval of the Author.

Ang: Make sure your agreement states what you pay for and what the agent pays for prior to selling the work. We’ve never had any expenses related to selling a book so this has never been an issue for us. It might be in the future though, so we have it in all our contracts. If an author’s book needs editorial before we can sell it we make sure we put it in the agreement so the author knows he is responsible for that expense.

COMPETING WORKS. The Agent may represent clients whose works compete with the Author’s work. The Author agrees that the Agent may do so. The Agent will, however, always act in the Author’s best interest as the Agent’s client.

Ang: I don’t need to say much about this. We have turned down manuscripts that we would have otherwise accepted because it was too close to something else we were representing.

ARBITRATION. The Author and the Agent will arbitrate any dispute arising under this Agreement before an arbitrator in Nashville or Franklin, Tennessee, under the rules for commercial disputes of the American Arbitration Association then in effect. If the Author and the Agent cannot agree on the arbitrator, each will appoint one representative, and the representatives will choose the arbitrator. The arbitration award will be enforceable in any court with jurisdiction.

Ang: I think if an author and agent can settle a dispute through arbitration that’s great. But sometimes people are hard headed and you have to take it to the next level. This clause just lets everyone know where that will take place—it’s usually wherever the agent has his office. For a different kind of twist on this clause, please see the section in this chapter called, “In God We Trust.”

ATTORNEY’S FEES. If any dispute is referred to arbitration or results in further litigation, the party who wins shall be entitled to reasonable attorney’s fees from the other party.

Ang: Important!! Someone might think they can wear you down through an expensive legal process but if you’re on the right side of the law in your dispute then the losing party should pick up the tab. Some agent contracts will say that each party is responsible for their own attorney fees. Making the loser pay all is a great incentive to settle things fairly and quickly. However, if you’re in the right and still lose…there is always the appeals process.

RENEWABILITY. If the Author wishes to have the Agent represent him for any future works, the Author must request it in writing via US mail or email. The Agent will have thirty (30) days to respond to the Author’s request before the Author is free to approach another agent to represent him.

Ang: We like this clause a lot and recently started adding it to our contracts. I don’t think an agent should assume that an author wants to spend the rest of his career with him. And an author shouldn’t assume that, even if he is the gravy train, his agent will want to continue working with him. It takes a long time for two people to decide they want to have this kind of long term relationship. We’ve had authors we stopped representing after one book simply because they were too high maintenance and unfriendly. Life is too short to be unhappy. So make sure your contract doesn’t lock you in to a lifetime of misery.

ASSIGNMENT. Neither party will assign or pledge his or her rights under this Agreement without written consent of the other party.

ENTIRE AGREEMENT. This Agreement supersedes any and all other agreements between the Author and the Agent with respect to the Property and is the only agreement between the Author and the Agent on its subject. It may be amended only in writing and signed by both the Author and the Agent. The parties agree that the Agent is acting as an independent contractor. This Agreement is not an employment agreement, nor does it constitute a joint venture or partnership between the Author and the Agent.

Ang: The rest is all just so-and-so—still important but it wraps everything up in a neat bow.

Note: One thing I didn't include here is a special confidentiality clause we have in our agreements that also exist in our author-publishing agreements. I don't think most agents have this clause in their agreements but we've found it to be a priceless service to our clients. It basically states that we will keep their advance and royalty information confidential and we will not allow a publisher to exploit that information.

There are several reasons for this but it is primarily to protect the privacy of our clients. If you are an author getting a six-figure advance do you really want the IRS to read about it in Publishers Weekly? (They do read it, you know). Do you really want every odd cousin coming out of the woodwork asking for money? Most of all, do you really want to be a party to the Hollywood mentality that paints a false picture of what publishing is really like to all the other hopeful authors out there? It's irresponsible. I know this may not be the perfect analogy but you don't see real estate agents listing on their sites the names of people they sold houses to and how much the purchase price was. You don't see a list of patients on plastic surgeon's sites with a breakdown of who paid what for a boob job. Book agents sell PROPERTIES as a service; just like real estate agents, just like car salesmen, just like plastic surgeons, and there needs to be a modicum of privacy in such matters.

Yes, yes, we hear all the objections and negative feedback. But we're not budging on this policy. Our clients appreciate this service and we don't care what anyone else thinks.

Now back to the contract: make sure there are TWO original copies of your author-agent agreement and both are signed, dated, and witnessed. You keep one, your agent keeps one, and you shake hands and hope for success.

THE RULES OF FAIR PLAY FOR ALL

The agent:

- must represent you and your manuscript to potential publishers. If you sign with an agent and send him your manuscript he must try and sell your book. That’s the point! We know authors that signed with an agency and then never heard from them again. If the agent takes your manuscript but doesn’t try and sell it, seek to terminate the agreement and move on.

- is not authorized to make any decisions or accept/reject offers on your behalf unless you grant him that in a legal power of attorney or in writing.

- can act as your liaison between you and your publishing house if you choose not to have direct contact with the house. We advise you not to give up this relationship, though, as having a direct line of communication with your publishing team will only be beneficial to you.

- should never edit your manuscript without your knowledge or permission; especially if they have no writing or editing experience. Really, your agent shouldn’t edit your manuscript no matter what. It’s hard for them to see the forest for the trees. An independent editor should edit your manuscript. In fact, your agent should only have input into the editorial process if you give him permission to be involved.

- must keep accounting records of all monies received on your behalf and send you advance and royalty monies and all accounting statements per your agreement with him.

- should return your phone calls and emails and reply to any written correspondence from you. It’s appalling how this practice of ignoring clients has become a norm, and you shouldn’t be shy about demanding replies to your correspondence (see the bullet point below about the author’s responsibility too).

You, the author:

- must recognize that your agent has exclusive rights to represent you. This means you don’t approach publishers or anyone else to try and sell your book. And if anyone approaches you about buying your book, you must refer that person to your agent.

- must be reasonable with your degree of contact with your agent. If your agent is good about getting back to you, do not send numerous emails a day or call several times a day. Don’t inquire about the status of your book every day or every week. Remember that you are not the only client your agent represents, and if he has something to report to you, you’ll be the first to know. And do not assign other people to bug your agent on your behalf. Being annoying doesn’t make the process move any faster.

- must give your agent everything he needs to sell your book. First, find out what your agent's requirements are for your submission. Agents have different tastes and different needs. Here are some examples of what we like to get from authors:

o When your manuscript is finished, run SpellCheck (please!) and remove any crazy formatting like hard spaces, extra tabs, sidebar formatting, drop caps, etc. (Invest in a Chicago Manual of Style. It’s the publishing standard for most houses and following its guidelines will make handling your manuscript much easier for your agent, the editor, and the typesetter.)

o Replace any “all cap” and underlined text with italics unless you absolutely must have an occasional word capped or underlined. If you have chapter headers and subheaders, designate them but leave out any fancy formatting.

o Give your document 1" left-justified margins with at least 1.5 line spacing.

o Save your manuscript, preferably, in Word format (as that is the most widely used) and send the file via email and/or hardcopy to your agent.

o Include all illustrations, tables, graphics, etc. in high-rez formats, and include all bibliographic information, endnotes, footnotes, appendices, etc.

o Include your full-length bio, a one-page synopsis of your book, a couple of high rez images of yourself, and whatever data is needed for the proposal.

ONE FINAL NOTE

First and foremost, your relationship with your agent is voluntary, even if you have a contract with him. Go back to the author-agent agreement and exercise your right to end the relationship per the terms of the agreement if you feel it’s in your best interest.

Please note that you cannot assign your author-agent agreement to another agent. And if you want to hire a new agent you cannot do so until you terminate the agreement with your first agent. This should be spelled out in your original agreement and it will probably indicate that you have to give your first agent some kind of notice.

If you do switch, make sure you give a copy of your former agreement to your new agent. And remember, if your first author-agent agreement is terminated, for any reason, your former agent may still be entitled to his commission if your book sells to a publisher he approached with a proposal. Any new agent will want to have a list of publishers and editors approached by your first agent so he can either avoid those publishers or approach them again and plan to split the commission with the first agent should your book sell to that publisher. That’s only fair.

Lastly, do not plead ignorance about your contract! If you switch agents and give your former contract to your new agent for review, you are responsible for making sure termination with the first party takes place before beginning your new partnership. And if there are any survivable clauses in the first contract, you both are responsible for making sure those are upheld and all parties are protected under the law.

NEXT! HEAVEN CAN WAIT...an editor says you have a winner, but the buck doesn't stop there!

3 comments:

Anonymous said...

At last! Thank you for doing this. What a wonderful thing to do for us struggling writers trying to figure all this out. I'll be waiting for the next chapter! Ed Burns

Anonymous said...

Oh, I see you've met my former agent! (The bipolar one that thinks she owns me.) I am agent-less now and much happier. Who do some of these agents think they are anyway? C.C.

Mark Dixon said...

It's a bit curious that you used the name "Mark" in your "Mob" scenario. I imagine that "Mark" was the first name that came to mind. Ha Ha!!