Pub Rants

Where “In Perpetuity” Might Come Back…

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STATUS: It’s Friday! This would be more exciting if I didn’t have plans to work all weekend. Need to catch up from being away the week prior.

What’s playing on the XM or iPod right now? JEALOUS OF THE MOON by Nickel Creek

And bite you in the a**.

Not to be a downer on the Friday but a lot of authors are super excited about getting their rights reverted and then being able to digitally publish those titles themselves.

By all means, I’m certainly not opposed but you might want to check that agency agreement you signed before you run out and do that.

For the record, Nelson Literary Agency does not hold author rights into perpetuity but I know of a lot of agencies that do.

At NLA, our client agreement clearly states that if we sell the author’s book, it’s for the full term of the publishing agreement. When the book is out of print, publishing contract ends, all rights revert to the author with no further obligation to us.

But we are the minority. I know a lot of agencies that have “in perpetuity” language that they will be the agency of record for life of the property—regardless of whether that title is currently under a publication contract or not.

In short, what this means is that even if all rights to a title has reverted to you from the publisher, and even if you are no longer with that agent or agency, if you signed an agency agreement separate from the publication contract that has an “in perpetuity” clause and that agreement is still in force, you owe the agency of record monies for your self-pubbed digital sales.

Yep, that would suck. So, review any and all agency agreements you signed and if necessary, consult an attorney if it is in question before posting to digital distribution sites.

24 Responses

  1. Kristin Laughtin said:

    Since my mind likes to go into the what-if scenarios even though I haven’t sought an agent yet, what if that agency eventually goes out of business, or your particular agent switches agencies? My guess would be that in the former scenario, you won’t owe the agency anything (although I could imagine it going either way), while in the second you might still have to pay royalties.

  2. Robin Weeks said:

    How flexible are agencies in general on their standard contracts? If we want that clause removed before we sign, will they say “go find an agent with a contract you like better” or will they negotiate?

    How often do authors request to see the agency contract (for comparison with other agents they received offers from) before they accept the offer of representation?

  3. Remilda Graystone said:

    Both Robin and Kristin asked very good questions, and I was wondering the same thing. I would very iffy about signing a contract that has that clause. I want to know if it could be changed, or if I would be the one having to change…to another agency or whatever.

    Informative post, as always.

  4. Mahak Jain said:

    This is really useful to know. What are your thoughts on “in perpetuity” in general? I imagine you had your reasons for leaving this out of the standard NLA agreement. On the one hand, I can see why agents might want to maintain this right — especially if they contributed a lot of leg-work to getting the book out there in the first place, perhaps they should continue to be credited for that work. On the other hand, it’s the author’s book…

  5. Liesl said:

    And yet another question you’ve given me to add to the list of question to ask an agent. Could you just do a blog post listing all those questions we should ask agents that non-savvy-contract-people know nothing about? Good grief, one of the reasons I want an agent is because I’m contract-idiotic. I didn’t know I’d have to comprehend the agent contract aside from their commission rate!

    Feeling boggled.

  6. Gail Roarke said:

    At this point, I’m not I’d ever employ an agent. I’d be more likely to run any publishing contract past an IP attorney instead. But if I do employ an agent, an “in perpetuity” clause would be a dealbreaker. The rights in my work belong to me, not anyone else.

  7. emmiefisher said:

    Definitely a tidbit worth remembering! Though I’m sure I’d read over the contract carefully beforehand, I’m not sure I would have realized the implications of that particular bit right away. I’ll definitely keep my eyes open for clauses like this.

  8. Anonymous said:

    Anyone who doesn’t ask to see the agency agreement before they sign with an agent is an idiot. I’m quite certain that agents get this request all the time and everything is negotiable. If not, do you really want that agent? It’s my understanding that the big agencies are much less flexible, but the boutique agents have more leeway. I do not have a contract with my agent. Our relationship is spelled out in our publishing contracts and I’ve had the clauses reworded a few times at the request of my attorney. My agent has always been more than fair in this regard.

  9. Anonymous said:

    Could also be viewed as “boiler plate” language and tossed out as invalid…depends upon the agency/publisher and whether they are known for not publishing an author if they try to negotiate their contract, etc.

    Of course it’s best to read anything before you sign and to try to negotiate. If they reject your changes you would have a stronger case…

  10. Anonymous said:

    It seems that ‘forever’ really is forever.

    Honestly, I have to agree with the people above who say you are a fool if you signed something like this.

    Kristen is not everyone’s agent. Not everyone in the world is so free with this info – in any business.

    In business (and if you are looking to publish, you are getting into business) you have to CYA. If you do something stupid it doesn’t make the agent or publisher evil.

    It just makes YOU stupid.

    Take responsibility for what you do and what you sign. Remember that no matter how much your agent or editor loves you, you love you more. Be professional and fair, but look out for yourself first.

  11. Anonymous said:

    Thank you so much for posting this. I had an offer from an agency, and asked to have the ‘perpetual rights’ clause changed in their contract. After I asked, they rescinded the offer. I was devastated, but even though I’m still seeking representation, I know I was right to ask. If that was the deal breaker, then probably it was for the best. The Authors Guild recommends against this clause and calls it ‘non-standard’. Check out their website. Again, thank you Kristen for pointing out this issue.

  12. Anonymous said:

    Often there’s no written contract between an agent and an author — until the agent makes a deal with the publisher, that is, and slips a paragraph concerning the agency’s rights into the contract. How many authors ask to see that paragraph, before they sign on with an agent . . ?

  13. M.E. said:

    Thanks for clarifying the “In Perpetuity” issue for us writers. Keeping that in mind. Hope you get a chance to relax for a bit this weekend, too.

  14. Jacqvern said:

    People should really read and understand what they sign, if they can’t on their own, then by seeking somebody’s help…

    Thank you for a very interesting article 🙂

  15. Courtney Milan said:

    Definitely talk to a literary attorney if you have any questions about this.

    I have some doubts as to whether all agency agreements would cover self-published sales, depending on the language of the agreement. In a world that didn’t contemplate self-publishing being lucrative, I’m guessing at least some agency contracts were drafted narrowly enough to escape this.

    So check with someone first.

    And also–always remember that contracts can be negotiated after the fact, so even if you are stuck with it, go talk to your agent and ask them if they’ll agree to a modification. Can’t hurt to ask!

  16. Anonymous said:

    I remember when you posted about this a long time ago. But that was before anyone was even considering re-releasing in digital format.

    Another important fact of life now, for authors who don’t have agents, is to make sure if you submit a short story to an anthology you don’t sign an “exclusive.” Traditional print publishers aren’t offering royalties on digital books to contributing authors; just the same tired flat fees. But if you sign a “non-exclusive” you can still re-release in digital.

    Most wouldn’t think this is important. However, I’ve personally re-released my own digital short stories that were originally pubbed in anthologies where I’ll never see a dime in digital royalites from the publisher. And I think three to five hundred extra dollars a month coming in isn’t all that bad for a digital short story.

  17. J. T. Shea said:

    I am surprised this particular practice survives at all, much more that it is as common as you suggested, Kristin. Regarding e-books, it might put an agent in the peculiar position of having to argue that an agency agreement cover e-books, while simultaneously arguing that similar language in a publishing agreement does not!

    The Author’s Guild is far from alone in condemning interminable agency clauses. Writer Beware, the SFWA and RWA and others rightly condemn them. As you did yourself very capably in your September 19th 2006 post READING THE FINE PRINT. Your commenters at the time had an interesting debate for and against a blacklist of agencies with such clauses. The clause has presumably gotten much more common since then.

    It’s bad enough writers must employ agents to police unfair publishing contracts, but it seems we need Intellectual Property lawyers to police unfair agent’s contracts! Now, who do we get to police the IP lawyers?

  18. Lucy said:

    This is one contracts post that’s getting its share of comments. 🙂 See, Kristin, we really do like these!

    *gulps and goes off to add to list of icky things that crawl into contracts*

  19. Beth said:

    Sneaky! The thing is, as a writer, you’re expecting the agents to watch out for things like that for you on the publishing end. You’re not expecting them to do it to you!