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Anatomy Of An Agency Agreement—Part Four

by Kristin Nelson

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…

Chutney Irresistible

by Kristin Nelson

STATUS: It’s late at night. That should pretty much sum it up. I’m back in Denver though.

What’s playing on the iPod right now? MIDDLE OF THE ROAD by Pretenders

If you are going to have a brush with the famous, it helps to know who they are.

This is a completely non-publishing blog entry so feel free to skip it. I just thought you folks would get a kick out of this story. I’ll be back to talking about agency agreements tomorrow.

On my trip to St. Louis this week, I brought Chutney on the plane with me. She rides in the cabin with me and she’s a great traveler so it’s fun and easy. On my return trip to Denver, I arrive at my gate only to discover that the plane is delayed. Never a good thing when traveling with a dog but I notice a gentlemen softly strumming a guitar. Chutney loves music so I decide to sit near the guitar player for the mellow, calming effect. Worked like a charm. Chutney curled up and went to sleep but not before a gregarious fellow came over to chat. He had to meet her because he had just adopted two rat terrier brothers. I got to see the family pictures on his Mac and everything.

What can I say, Chutney is such a guy magnet.

So he goes back to strum on another guitar and it starts to dawn on me that several guys in this traveling party are quite musically gifted. But hey, I’m working on my computer and Chutney is certainly benefitting from the music (and the attention) so although unusual, I don’t think much about it. Then several young people approached the guitar strummers to ask for autographs.

Yes, I’m a little slow on the uptake. These guys I’d been casually chatting with are famous musicians and even if I had no clue as to who they were, others obviously did.

So here are the fellows I let pet Chutney while waiting for our plane at gate A18 in St. Louis.

I’m off to download some of their tunes onto the iPod so that I won’t be accused of living under a rock or something.

Anatomy Of An Agency Agreement—Part Three

by Kristin Nelson

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.

Anatomy Of An Agency Agreement—Part Two

by Kristin Nelson

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.

Anatomy Of An Agency Agreement—Part One

by Kristin Nelson

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.

Evolution Of An Agency Contract

by Kristin Nelson

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.

Agent Shopping

by Kristin Nelson

STATUS: So crazy today and it’s so late at night for blogging…

What’s playing on the iPod right now? BIG LOG by Robert Plant

When you have a deal on the table, don’t get in the mindset of “one stop shopping.”

I think it’s terrific to have your dream agent on the top of your list and by all means, be sure to contact him or her. But don’t stop there. A deal on the table is no guarantee that an agent will sign a writer.

Now it certainly helps the process along but an agent might still pass and as a writer, you don’t want to get caught without a back-up plan.

Now why in the world would an agent pass up easy money with a deal already on the table? Simple. Client lists are either full or the agent is really particular about what he or she takes on.

For me, I can like a project and see the merit but still not offer representation. I have to LOVE a project to take on a new client—especially if the project being offered on is a debut.

I often pass on projects with an editor offer already on the table if the project simply isn’t right for me.

But that doesn’t mean it won’t be right for other agents. So contact the dreams first but then have your secondary list fired up and ready to go.

It’s like applying for college. You pinpoint the dream schools but always have the “fail-safe entry” school as a fall back.

Crucial Component

by Kristin Nelson

STATUS: Just my luck that a huge thunderstorm rolls through Denver right as I’m finishing up for the day and the broadband goes out. I’m typing this from home. If it’s not up by tomorrow, I’m going to have to call Comcast so as not to lose Monday as a work day. Just what I need during this busy time.

What’s playing on the iPod right now? I DON’T WANNA TALK ABOUT IT by the Indigo Girls

I really do want to revisit the idea of analyzing bestsellers and really encourage readers to simply note what elements make them tick—what caught hold of the reader’s imagination. Even if you only use it as something that’s at the back of your mind.

I mention this because so many writers seem to write in a vacuum—that they simply write the story “of their heart” without necessarily thinking through the elements that could make the project universal or cross genre or age boundaries.

What happens then, as an agent, is that I end up reading stories where I think, “it’s just not big enough” or “there doesn’t seem to be a strong enough idea to carry the whole story” or “this is solid but it seems to be lacking that extra oomph.” It’s about the writing and this indefinable but crucial element that makes the difference between a pass and a yes.

And it’s also about timing. (You’ve heard that about relationships too, I know. It’s true for that as well.) And writers hate to hear it but timing is often the crucial component for a sale happening. I can’t count the number of sales where the project just happened to land on the editor’s desk at exactly the right time. Maybe an author on their list couldn’t make a deadline and a slot has opened up. The editor is scrambling to find that special manuscript and boom, it lands on his/her desk.

It happens. In fact, it has happened for me and one of my clients this year.

Maybe an editor is thinking “wow, I’d really love to see an XYZ project and the next day I just happen to call about a novel that’s going out on submission, and it’s suddenly like a gift has dropped into the editor’s lap. They read it overnight or whatever.

The crucial component.

The Tipping Point?

by Kristin Nelson

STATUS: All good stuff happening but I don’t think it could get any crazier at the office if I tried. I’ll be able to talk more about why in a couple of weeks…

What’s playing on the iPod right now? SOUL MAN by Sam & Dave

I’m going to try and have this all make sense by the end of this blog entry. I’ve been reading THE TIPPING POINT for my book club, and I’m just fascinated by the whole concept he explores about what makes things tip in terms of a trend catching on like wildfire or a book becoming a huge bestseller seemingly out of nowhere.

Powerful stuff.

So I’m reading this nonfiction book right after I finished reading TWILIGHT over the weekend (because I couldn’t put the darn thing down). This is a good agent friend of mine’s book so I’m just over the moon for her that the book is doing so well. And I have to say I wanted to read it because this book has sold over a million copies world-wide (so it has tipped) and why is that.

I’m not sure I have any answers to that last question but I can tell you what drew me to the story and why I couldn’t put it down.

First off, Stephenie Meyer is the master of atmosphere. I FELT tense while reading the novel (and tense in a good way in terms of not being able to turn the pages fast enough). Her story is set in the rainiest town in Washington and let me tell you, the relentless rain becomes almost a character in itself.

Then there is Edward.

If you’ve read the book, you know exactly what I mean. The story itself is told in first person from Bella’s perspective but Edward is the character who is unforgettable. Their love is impossible, forbidden, and absolutely inevitable.

Timeless. Is that what made it tip? The tortured Edward (who has fans in his own right)? Is that what made it tip? Is it Bella’s voice?

My guess is that it’s a combination of all these things along with masterful writing that got readers talking to each other about how they must read this book.

But I think it’s worth analyzing (even if there is no clear answer) because whatever IT is, you want to capture it in you work whether you write young adult or adult fiction.

Call Me Crazy

by Kristin Nelson

STATUS: Another phone day at the office. I have a submission that is causing some excitement but hey, that’s good.

What’s playing on the iPod right now? DON’T LET IT BRING YOU DOWN by Annie Lennox

How does this happen? I find myself going to yet another conference next week. I’ve done something like 5 or 6 already this year. I’m actually planning a conference hiatus for next year (except for Backspace, I still plan to be there).

This is all so spontaneous; I haven’t even had a chance to update the Nelson Agency website yet. So where am I off to? St. Louis. Yep, my hometown (and Laurel K. Hamilton’s as well). I couldn’t resist going and seeing the family.

Worldcon (the big science fiction convention) is going to be in Japan this year which means they also schedule a North American smaller version as well. This year it’s in Collinsville (just outside of St. Louis).

Besides, all of you know that I’m looking to build my list in SF&F.

Click here for the info on Archon. Click here for the program schedule. Yours truly is on three panels. Yikes. I need to prepare.