Pub Rants

Reading The Fine Print

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STATUS: Besides the fact that I’m a day ahead of myself? Not much. It’s tomorrow that I’m the guest blogger at Romancing The Blog. Sept. 20. Wednesday. Got it. I only have a calendar on my computer and hanging on the wall to the left of my desk. I guess I’d rather be a day ahead then behind.

What’s playing on the iPod right now? SOMEDAY, SOMEWAY by Marshall Crenshaw

I don’t think that writers realize that good, reputable agents with solid sales track records will often take advantage of writers in a very subtle way. It’s usually the words “in perpetuity” embedded in the agency clause of an agency agreement or a publishing contract. And if you’re smart, you’ll find out ahead of time if such an approach is used by the agent or agency (because it’s a growing practice).

One of the comments last week mentioned that a writer had declined representation because of it and many of his or her friends considered the writer nuts for doing so.

I, however, don’t.

I think the writer was smart. Very smart.

First off, what is it? Well, in all publishing contracts, there will be an agency clause that specifies that the author is appointing this person as his sole or exclusive agent for the property being contracted.

Then the clause will contain such words as, “Author hereby irrevocably appoints in perpetuity the so-and-so agency as her/his sole and exclusive agent (the “Agent”) with respect to the Work and authorizes and directs the Publisher… etc” and then later in the clause states, “For services rendered and to be rendered, the Author hereby does irrevocably, assign and transfer to the Agent in perpetuity, and the Agent is entitled to receive and retain, as its commission..”

It means exactly that. This agent now has the right to receive compensation in perpetuity for this work—even if this work goes out of print and is later resold—by a different agent. Even if this agent drops the author like a bad egg and doesn’t lift another finger to help this project. Even if the author wants to leave this agent and find a new agent because the publishing contract has terminated.

In perpetuity means endless, paid for life, for eternity.

Don’t you think that’s asking for a lot from an author? Isn’t it wise to think twice before signing on to that arrangement when there are so many terrific agents who don’t demand this type of concession from an author?

Read the fine print of an agency agreement first. If it’s not clear there, ask the agent about the agency’s policy. Know beforehand if “in perpetuity” is expected and therefore will be in the publisher contract because goodness knows, you don’t want to have that surprise right before you want to sign on that exciting dotted line.

Weigh the pros and cons of it.

And for the record, my agency clause clearly states, “for the full term of this Agreement…” in all applicable areas.

Not “in perpetuity.”

In my mind, if the contract is still in force, I’m doing my job and should get compensated for it. If not, well then, I either needed to get it back under contract to earn some dough or let the author move on.

28 Responses

  1. Anonymous said:

    Kristin, I enjoy reading your blog, and I’m so glad you brought up this issue. My novel is slated to go out on submission to editors in a few weeks, and the contract with my agent states that if book rights are sold within a certain time frame, then the agency has in perpetuity to sell all subsidiary and ancillary rights. Is this the same thing that you address in your post? Thanks for the great info!

  2. salty said:

    thanks for the post – enjoyed it.

    i will add, though, that sometimes that’s the way it goes. i have an agent (in a different line of work) who is reputable, but also takes advantage of clients in subtle ways. it was my choice to go with this person, true, but i didn’t have anyone else knocking at my door – and it is a crowded and competitive world. sometimes cream rises to the top, but not always.

  3. Anonymous said:

    OMG! Don’t writers have enough to worry about? Now they gotta worry if their agent is “taking advantage of them.” The writers are the ones who create the product, but yet they are always at the bottom of the food chain. They get the short in of the stick. Why is that?

  4. Virginia Miss said:

    Kristin, thanks for the heads up.

    Legalese scares me to death, it’s great to have some pertinent clauses explained by a pro.

  5. Macuquinas d' Oro said:

    Thank you Kristin. My education continues.
    It would be very useful to have a list of these “in perpetuity” agents and publishers, so that we all could save ourselves some time and money. Does anyone know whether such a list is available? I think appearing prominently on a “do not query/ do not submit” list might send a message to the greedy bastards, don’t you?

  6. JDuncan said:

    Wow, I didn’t realize agents did that. I will certainly keep an eye out for that word in any contract I might and hopefully see in the future. One would think that such rights would end if the contract did. That’s pretty lame of them to take advantage of a lot of folks who don’t really understand the legal language of contracts.

  7. Anonymous said:

    what if there’s an “irrevocably” without any of the “in perpetuity” language? same thing? anyone know?

  8. Shesawriter said:

    Dear Kristin,

    Fortunately, I had a few savvy published author friends (as well as someone from RWA National) advise/vet an agency contract for me after I received my first offer for representation. This agent is reputable and I loved her to pieces. (still do) In fact, I keep in touch with her because I’ll always admire and respect her. She gave me some great advice and tons of encouragement when I really needed it. I will never forget her kindness.

    However, that pesky ‘in perpetuity’ clause kept me from signing with her.

    My current agent has no such language in her contract, thank goodness.


  9. Ryan Field said:

    There are pros and cons to this, as always. But if agent X, with a track record that would impress O.Henry, wanted to represent me and there was an “in perpetuity” clause I don’t think I’d pass.

  10. Diana Peterfreund said:

    macuquinas, it is important to remember that this clause is not necessarily a deal breaker. Many of the best agencies in the business have this clause.

    There is a current furor over making lists of undesirables post the Writer Beware “20 worst” list, but most people are missing the point of that list. It was to highlight scam artists posing as agents, not necessarily legitimate agents who happens to have contract wording you don’t agree with.

    Can you imagine the slippery slope? Some people don’t agree with agents who edit (as Kristin does). Some others don’t agree with agents who write as well (as many do). And still others don’t agree with agents who have longer than 30 day termination clauses, or book by book contracts, or no contracts at all, only handshake agreements, or who knows what other variation on legitimate agenting practices. Are we going to start making lists for all of these agents based on these subtle variations, or are we going to leave the big “do not query” lists for clear cut criminal activity and business practices condemmed by every watchdog group and prfoessional agency organization around?

    Also, keep in mind that some agencies may have this clause in their boilerplate, but it is negotiable.

  11. S William said:

    Diana, thanks for you post. Both yours and Kristins were very insightful.

    Honestly, from the bottom of the pile I don’t see that as a concern right now. If my work is good, it will get published. If it is very good, I might make a living. If I win the “Lovely Bones” lottery and have Peter Jackson make a film from my book, well then, God bless my agent.

    I don’t see myself completely against perpetuity. Please don’t take that as an ttack on your insight, Kristin. I appreciate being armed with information. Many of us down here, who are what Stephen King calls “competent writers”, are just hungry for a glossy cover. We realize the odds and numbers.

    On an off note: please don’t tell me that good agents are being place on that list?

  12. Anonymous said:

    s william: On an off note: please don’t tell me that good agents are being place on that list

    If you mean Writer Beware’s 20 Worst Agents List, I strongly suggest you go to the Writer Beware website and look at the criteria WB used to generate that list. (I think you misunderstood Diana’s post. Agents were not placed on the 20 Worst List for editing, writing, “in perpetuity” clauses, etc. No one remotely resembling a real agent ended up on that list.)


  13. Joelle said:

    Thanks for the info. I come from an acting background and your agent gets their percentage forever, so I just assumed this was how it was with literary agents too. Now I see that that ain’t necessarily true, but could be. I think it’s best to arm yourself with the info and then make your decision as an informed writer. Thanks for the information.

  14. Anonymous said:

    Whether we can make a living from our writing or not would seem to have very little to do with probability and very much to do with skill in writing COMBINED with good decisions as a “small business owner” about the work and its explotation. That includes hiring good people to do things you can’t do as effectively for yourself. For most of us the person we feel the urgent and acute need to hire is an agent. When an incomprehensible agent’s contract arrives in the mail there’s a huge temptation to quickly sign and hope for the best. This is not a good business practice. While you prepare to query agents, you can also join the National Writers Union and get access to their information re agents and contracts, they can also provide you some help interpreting the contract and negotiating if there are issues needing compromise. You might want to find an attorney who can review the contract and explain the meaning and concequences of various clauses to you. Sometimes it is great to be able to blame things on the attorney [darn, my attorney won’t let me sign my royalties away for life, what are we to do?]. Before you agree to work with an agent, talk about the business end of the relationship, not just about your plot and pages. You can take classes at the Small Business Administration or your local community college if you don’t have any prior experience running a business. Approach agents like you’re a savvy executive hiring someone whose actions can affect your income forever. Because that is exactly what you’re doing. You don’t have to be paranoid or nasty, just be charming and informed, and make sure the business happens in a way that is fair and profitable to both of you. If you leave it up to chance, you might get screwed.

  15. Anonymous said:

    Hmmm. I did the work and wrote the book and it is done. I receive royalties in perpetuity.

    My agent did the work and sold the book and it is done. She gets 15% in perpetuity.

    If she originally sold the project, she should continue to make her 15% off it in perpetuity. She took me on as a client; she sells the book; even if I ditch her, she should still see a return on her investment. Seems a fair deal to me.

  16. Diana Peterfreund said:

    Anonymous at 4:57, this is the difference.

    Your agent sells the book. She makes 15% of that sale. You make the rest. You’re both happy. This lasts for the length of your agreement — i.e., she gets paid as long as what she sold makes money. I am in complete agreement about this.

    Then the book goes out of print. 🙁

    Years later, after the book has made no money for a good half-decade, you and your new agent sell the previously unsold rights to the novel, or new rights, seeing as your rights have been reverted to you since so many years have passed blah blah blah. If you have an in perpetuity clause, you still have to pay your old agent 15%. Plus your new agent 15%. Bringing your take down to 70%. So the old agent is making money for something she never had anything to do with.

  17. Anonymous said:

    I think most people who put out contracts know that the person signing it will NOT read the fine print.

    Good one for the writer who did.
    I think it’s money very well spent to have a lawyer read through a contract. Always. Saves you lots of time later, and in the case of “in perpetuity,” you might save your heirs court, settlement and attorney fees later on.

  18. pennyoz said:

    I think that “in perpetuity” clauses are very sticky issues. For instance, educational book illustrators sign over their copyright to the publisher. Now this is the choice of the creator but what it means, basically that the publisher has the right to what they want to do with the artwork. Let’s say you become famous? Sendakian? Well, on that piece of fame, they have copyrights and cash in on your hard slog and years of kudos. It can even end up on a margarine pack for allyou can do.

    Where an agent has sold a work, then they do deserve every bit of that percentage. They did their job! But if that book goes out of print, then you should really have a clause in there stating a period where they still collect the royalties %. And possibly after the out of print run to cover subsequent stock clearances, etc. And this is where electronic rights must also kick in.

    Electronic rights should also specify a qualifying period. Check those because if there isn’t a period, then that’s a back door invperpetuity where one print out per year can mean that this book is not out of print. This is a minefield.

    And in perpetuity. Does it relate to all related fields such as read aloud books? Film? Television?

    I wouldn’t let a publisher get away with such a word embedded into a contract – so why should my agent, my godfather so to speak – put such a word into a contract.

    Perpetuity is such a long time and probably very hard to undo – if at all.

    Kristin is 200% right. Let the deserts go to those who deserve it, but when it’s gone, and the spoils with it. Then that means it’s dead and buried. Any resurrections that have nothing to do with it, do not deserve spoils any more.

    Personally I am surprised to see that many agents are doing this?