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.
In my other life, I’m a legal academic who writes about contract law. The sad truth of the matter is that you are probably on FAR better grounds if you don’t get a lawyer–even a publishing attorney lawyer–than you would be getting one.
Read your contract. Use common sense. If a term seems ambiguous or confusing, don’t sign; e-mail your prospective agent and ask her what it means. And then, save her answer–in more than one location. If a term seems like it’s completely unfair, ask her if that’s what it means.
If you don’t know what something means, don’t ask a lawyer. Why? Because a contract means what the parties think it means, first an foremost. If you can get a written statement from your agent saying, “This term means X,” you are far safer than having a lawyer review it and say, “Well, the industry gives such-and-such term X meaning.” The first of those is direct evidence of what the parties think; the second is only indirect evidence, and direct evidence will trump indirect. (Obviously, SAVE those conversations. Print them out and keep them in a safe place, right next to your contract. Because once you have that conversation with your agent about the meaning of a term, her explanation effectively interprets the contract.)
“Okay,” you’re saying. “But what if I just don’t know that a term is ambiguous, or that it has a different publishing meaning than I’d thought? Wouldn’t I be better off asking a lawyer?
The short answer is NO. You are far better off wallowing in your ignorance. The sad truth of the matter is that courts (and so by extension arbitrators–because if your agent hasn’t put an arbitration clause in your contract, I’d be shocked) DRASTICALLY favor the interpretation of unsophisticated parties–that would be you–and if you get a lawyer to review your contract, you actually lose some protections. If your agent puts language in that has one meaning to an ordinary person, and another meaning to a sophisticated literary agent, guess which meaning will control if it gets down to the wire?
If the other person who signed it is an ordinary person (you), basically everyone will say it’s that ordinary meaning that will trump. Why? Because your agent knows ordinary people read the contract, rather than publishing professionals, and so should have been aware of the ambiguity.
But if you get a lawyer, you lose that protection. Then, you should have known it too.
Read for yourself. Read carefully. Just ask yourself, “Does this term seem fair?” Pose scenarios for yourself. “Okay, so if I want to leave my agent, what’s going to happen?”
When it comes to signing a contract, you are almost always better thinking for yourself than getting a lawyer.
If you’re signing with a respected agent, you have little enough to worry about. And if you’re not–well, then, why are you signing her?
(Exceptions, because yes, I am a lawyer. If you’re already well-established, and there’s obviously a good deal of money on the table, then courts will assume you’re relatively sophisticated, and so you’ll lose some of these protections. Likewise if you’re a famous person already. And if you ARE a lawyer in your other life, suck it up–everyone hates you as it is.)
What percentage of agents use agency contracts? 50 percent? 75 percent? I understand there are still some old-school agents who prefer to work book-by-book and feel protected by the agency clause in the publisher’s contract. Even agents who are members of AAR.
Hello,
Can you cite some examples of clauses to avoid? Is there a generic boiler plate contract out there that most agents use?
Thanks.
One of the things I negotiated was term. I had been with an agent for 9 months, and she had a 30 day termination clause. It wasn’t working, so I left.
My next agent had a TWO YEAR contract obligation, and I wasn’t comfortable with it, given that the last agent hadn’t worked out and I knew that 6 months in. We negotiated and changed that to one year– a fair amount of time to figure out if the relationship worked. And its still working, as we come up on our 1 year anniversary.
“If you’re signing with a respected agent, you have little enough to worry about. And if you’re not–well, then, why are you signing her?”
I personally think this is right on the money. My agent is from a very well-respected house and I knew her reputation backward and forward. I still read my contract word for word and made sure I understood and agreed with what it said, but I didn’t feel any need to consult with a professional because I knew she would not screw me over. An agent’s history and reputation tell you a lot about how fair her contract will be.
Fantastic stuff. Guess I’m not far enough along yet that I’ve given the agent contract much thought. But I’m learning a lot from this discussion. Keep it going.
Hey Kristin. Welcome back to St. Louis! =) I am too broke to attend Archon, unfortunately, but I AM meeting a published author friend for lunch at the hotel. If I see you, I’ll be sure and say hi and tell you how much I love your blog. Don’t worry–I won’t be bringing a 800-pound manuscript and begging you to read it. 😉
Seriously though, hope you have fun at Archon, and if I see you I really will say hi! =)
I totally agree with the idea that if you’re with a good agency with a track record, there’s not much to worry about.
My contract is open ended–but stipulates that either party can dissolve the relationship at any time simply upon written notice. It also contains an arbitration clause in case of dispute.
I think the chances of my agent being out to cheat me are about the same as the possibility that someone will steal my ms.
And if you don’t know where to find one, Google “Volunteer Lawyer for the Arts”. They have many volunteer lawyers, spread out around the country. But just to be clear, usually it means a discounted rate, like half. However, they are all involved in the arts and some specifically are for publishing. With email, you wouldn’t even need one in your town.
Your blog couldn’t come at a better time for me. I’m about two months away from beginning the search for my agent.
Right now I’m still doing the research on agents and who I hope to work with.
As always your post are up front and honest. The agent 101 post are great and anyone who does not have an agent but is starting the process I highly recommend you read these.
I just got a contract with a big agency. The document is three pages long and simple to read. The agency handles some big books, so that in itself reassures me I’m pretty safe. Right?