Pub Rants

STATUS: Worked hard today when I know everyone else was off playing for the three-day weekend. That’s okay though. I had a great time in NZ.

What’s playing on the iPod right now? I MAY KNOW THE WORD by Natalie Merchant

The next clause in my agreement is a snoozer but hey, everyone has to have warranties. My next clause basically states that you, as the author, hold the copyright to the work and that you warrant and represent that you have every right to enter into a publishing agreement for the work. In the event you don’t (and you lied about it), then you indemnify and hold the agency harmless for expenses raised by your breach of the warranties.

Yeah. That’s English.

Then the clause states that we both represent and warrant that we are free to enter in this agreement together and that neither party has a conflict with fulfilling it.

Small potatoes of a clause really. Just wait until you see the one in your publishing contract!

TGIF and have a great Labor Day Holiday Weekend (if you live in the U.S. that is).

STATUS: I’m back. A little jetlagged and a little overwhelmed by the piles on my desk but that’s the price you pay for going away for more than two weeks.

What’s playing on the iPod right now? DWELLER ON THE THRESHOLD by Van Morrison

I’m going to take the easy way out and continue my discussion concerning the agency agreement so I don’t have to cast around for a blog idea on these first days back in the office.

What’s up after expenses? Well, for my agreement, I have a clause that states that I can take on other clients—even if their material might be viewed as competing or conflicting with your stuff. I don’t want a client to say “hey, you took on a vampire paranormal romance author and I write vampire paranormals so you shouldn’t have taken her on” or something similar.

And this also alerts new clients that I may take on other authors who write in the same genre as they do.

This clause also states that I also use subagents etc. to sell subrights.

The next clause deals with modification of material. Basically, it states that I won’t make any material changes without author approval but if I need to add a missing comma or something, I won’t need to check back in with the writer before putting it on submission.

What a nightmare it would be if I had to get author approval for EVERY change made to a proposal or manuscript. It would take months to submit anything. So, it’s to expedite things.

Back to my two hundred emails that need to be handled and my piles.

STATUS: Hello from the land of Kiwi. Late this morning, my husband and I took the hike up the Rocky Bay trail on the island of Waiheke (which is just a 20 minute ferry ride from Auckland). It’s about a 2 hour hike (and a bit muddy) but we were excited to reach the top just in time for lunch and a bit of wine tasting at the Te Whau Winery. Guess what? It’s closed on Tuesdays (and yes it is Tuesday already here in NZ). Still, it was a gorgeous hike and a gorgeous day.

What’s playing on the iPod right now? Not listening at the moment but I do have my shuffle with me.

Once we have death figured out, then we have to address taxes. Just kidding. The next clause in the agency agreement deals with expenses and what my agency is entitled to receive as reimbursement from the author.

About two years ago, I actually stopped charging back most expenses to my clients. Why? Because the world of publishing had changed rapidly. These days I email my submissions (with the rare hard copy being sent out by snail mail).The biggest costs were photocopy and delivery. With that pretty much a non-issue, it didn’t seem worth the time to muddle with the accounting by tracking the only expense we end up really having which is FedEx and postage.

Now we do charge back for expenses related to selling subrights. Often we have to buy extra copies of client books in order to send on to foreign publishers and Hollywood co-agents. This can be expensive (and hence the one main charge-back to the clients). Now we try and wrestle as many free copies out of the publishers as we can get but it never seems to be quite enough since we pursue foreign and film subrights aggressively.

Here’s the clause if you want to see how it reads:

6. EXPENSES
NLA will be entitled to receive reimbursement from the Author for the following expenses relative to the representation of a project: special delivery/payment expenses, International/foreign shipping if applicable, costs associated with the selling of all secondary rights, including costs such as purchasing extra books and/or galleys used to sell those secondary rights.

Reproduction costs, postage & delivery, as well as all other normal costs associated to running a business such as office supplies, rent, or utilities are not an author billable expense. Please note that applicable charges are accrued to an author account and reimbursed from the author’s income from publisher payments. Reimbursed deductions will be itemized and supported by receipts.

STATUS: Yep. Guess who’s going on vaca starting tomorrow.

What’s playing on the iPod right now? HEY NINETEEN by Steely Dan

If you’ve been paying attention to my comings and goings (clearly listed on my website news page), you’ll know where I’m going. The land of Frodo and Orlando Bloom.

Oh wait, I’m going to New Zealand—not Middle Earth.

So what I’m trying to say is that I’m going to be gone for a good two weeks and the blogs will most likely be sporadic. It is called a vacation for a reason…

And to send me off on a cheery note, let’s talk about death some more. Many folks had questions about what happens when an agent goes off to the great beyond. You want me to say that XYZ will happen if this occurs and the truth is that there are many answers.

First, it depends on the agent and what corporate structure the agency has in place. For some folks, if the agent dies, the agency ceases to exist as a legal corporate entity.

That’s not true for my limited liability company because it’s not set up that way. Some agents are sole proprietors (not an entity structure I would recommend because of liability issues). Some are LLCs like mine. Some are S-corp corporations. The answer to this question changes depending on the company structure.

Then it depends on what is outlined in the agency agreement and this can vary from agent to agent or by agency.

My agency (and corporate structure) is set so that surviving members of the LLC and my heirs maintain the rights to monies generated from projects previously sold by me (while I was alive) for as long as they are in print. Since I don’t do “in perpetuity,” once a work goes out of print, all rights revert back to the author and the relationship with the agency is at an end. If any projects were on submission during time of death, the author, his or her new agent, and the surviving members of my agency would simply negotiate in good faith concerning those projects.

For my part, I’ll be dead so I won’t care.

And on that note…

STATUS: Uh… it can’t really be after 11 o’clock at night, can it? Perhaps next week I can share why I’ve been burning the near midnight oil every night…

What’s playing on the iPod right now? I WILL FIND YOU by Clannad (Last of the Mohicans soundtrack)

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…

STATUS: TGIF and all I can say is that I need it.

What’s playing on the iPod right now? BITTERSWEET by Big Head Todd & The Monsters

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.

STATUS: Another late night so I’ll be delighted if this blog entry is even coherent.

What’s playing on the iPod right now? I’M NOT IN LOVE by 10cc
(I love my lime green iPod shuffle!)

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.

STATUS: Even in St. Louis I’m working hard. Tomorrow I do one panel at Archon so I may have some interesting things to report… It’s also rather late as you can tell by the stamp on this posting. Sorry for any typos etc.

What’s playing on the iPod right now? WATCHING THE WHEELS by John Lennon

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.

STATUS: Today was a travel day (remember when I mentioned last week that I was insane to attend yet another conference?) Now I’m in St. Louis for Archon. Chutney and I are also visiting family so there will be lots of fun stuff in the evenings.

What’s playing on the iPod right now? HOLDING BACK THE YEARS by Simply Red

Since we have agent signing on the mind, I realized that I had never really blogged about agency contracts—as in when you are offered representation from an agent and he/she sends out the agency agreement for signing.

Do you negotiate it? Do you have a lawyer look at it? Or do you just sign without asking questions (which of course I would never recommend).

So I think I’ve got me a good blog topic for the rest of the week.

So here’s the first thing I want to tackle. If you get an offer of representation and the agent has emailed you a copy of the agency boilerplate agreement for your review, do you get a lawyer to review it?

Sure. If you’d like but here’s the caveat. Don’t ask any Joe Schmoo lawyer to review it for you. Don’t ask your brother-in-law who is a patent lawyer. You need a publishing attorney who will actually understand the clauses included and what they are for. A corporate litigator is a savvy lawyer for corporate law but that doesn’t make him/her an expert in publishing law—a whole different ball game.

I know I speak for many agents when I say that there is nothing more frustrating than talking to a non-publishing attorney who requests changes that either a) don’t make sense, b) defeat the point of an agent have an agency agreement to begin with or, c) ask for the moon which an agent would never give.

However, if a request is reasonable, most agents are open to negotiating.

Have I made changes to my agency agreement? Certainly but I rarely do nowadays. Why? Because over the years, several authors have made requests for changes that made so much sense, I decided to include the rewritten clause as standard in my agency agreement. Currently I have an agreement that is fair and balanced for both parties and all the terms are clearly spelled out.

But if they aren’t, be sure to ask questions. Most agents don’t mind explaining what the clauses mean.

And if you aren’t sure whether a contract is fair or balanced, then why not ask a knowledgeable publishing attorney to ease your mind?

Just remember, not any old lawyer will do.