Pub Rants

Category: Agents/Agenting

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.

What I Always Counsel

by Kristin Nelson

STATUS: Today was as exciting as a root canal. Accounting. Need I say more? Still, even if there is a bookkeeper involved, one must balance the books and ensure everything is in order.

What’s playing on the iPod right now? MONEY by Pink Floyd
(Funny how this works sometimes. I swear; it’s really what is playing right now.)

When I was at the RWA conference last week, an author came up to me and disclosed that she wanted to leave her agent and would I give her some advice.

And I’ll tell you that when an author contacts me with this thought in the mind, I always ask this question first: “Have you spoken to your agent about your desire to leave?”

Why do I ask this? Because the answer has always been NO and I always counsel that an author thinking of jumping should have a heart-to-heart talk with the agent before doing so.

Now, this is working on the assumption that the agent has done his/her job. In other words, the author hasn’t just discovered that the agent is a scammer. This also rules out any agents who might have acted illegally or fraudulently. Obviously if this is the case, a heart-to-heart, to put it simply, is rather unnecessary. High tail it on out of there.

But I operate in the world in the same way that I would want to be treated. Karma and all that. If one of my clients were thinking of leaving, I would certainly hope that they would give me the opportunity to hear what the problem is and allow me time to fix it, which is why I always counsel the author to talk with his/her agent first.

I’ve not landed new (and very desirable) clients by providing this type of counsel, but I sleep well at night. And who knows, ultimately the break between that author and agent might be unavoidable and they can certainly come knocking on my door again.

But they have to know that I’m going to ask them if they had that heart-to-heart first…

Now if the author has already formally made the break, that’s a different story. They aren’t asking for counsel. They’ve already made a decision.

Etiquette: Talking About Your Former Agent

by Kristin Nelson

STATUS: My hubby has been out of town all week but is finally back tonight. That puts me in a great mood.

What’s playing on the iPod right now? SHE’S LIKE THE WIND by Patrick Swayze

These blog postings might have several facets. We’ll see.

A recent letter I received got me thinking about this topic. In the letter, the writer was looking to switch agents because her project hadn’t sold. That in itself isn’t a problem. I can understand the frustration. The problem rested in how the issue was presented in the letter. The writer had incautiously written that the agent had only submitted the work to a few junior editors and then had promptly lost interest.

This may be true but it’s not in a writer’s best interest to present it that way. Maybe these are some up-and-coming young editors. Maybe X number of houses for the submission was appropriate. Maybe the Agent did his/her job. Ultimately, the inquiry letter ended up sounding more like sour grapes from disappointed hopes rather than a professional statement of the circumstances.

In other words, the writer sounded like a potential problem client, and I’m sure that wasn’t the writer’s intent.

Now I can totally sympathize with the disappointed hopes part and feeling abandoned by the agent. What I’m recommending here is that if this is the case, you feel it privately, but that’s not what you share in your new cover letter to prospective agents.

Keep it professional. Simply state, “I am currently looking for a new agent. I do have a project that was previously submitted to XYZ editors. I have revised it significantly and would like to go back on submission to some new venues for the work.”

And that’s if you really need to disclose this information at all in the first round of contact to agents. I always recommend just sending out a general query letter first so as to get agent interest. Then if sample pages or a full is requested, then ‘fess up to the prior representation and submission—sticking only to the facts (as in it was sent to “XYZ editors at XYZ houses).

Keep all other opinions to yourself. Once established with the new agent and you feel comfortable sharing the more personal perspective, then go for it. But in the query letter, just the facts ma’am.

Watch That Over-Telling

by Kristin Nelson

STATUS: For it be close to 100 degrees here in Denver is just downright unnatural. Don’t even get me started about global warming. If you haven’t seen AN INCONVENIENT TRUTH, you should.

What’s playing on the iPod right now? COOL CHANGE by Little River Band (appropriate, isn’t it?)

I’m finally getting back to reading my sample pages inbox. I know. I’m way behind. But I’ve been noticing an interesting writing trend that I thought I would share with my blog populace.

Some writers have an annoying habit of restating (via a thought their main character has) what has already been made apparent by the scene or the dialogue.

For example, let’s say that two characters are having an angry exchange in a spot of dialogue. Then the writer will write something right after that reads, “Jane could tell that John was angry.”

I’m making this up as you can tell but the premise is sound. The “not nice” part of me wants to say, “Well, duh. You just showed me that through the dialogue that’s on the page. You shouldn’t have to tell me that the character has figured out that the other person is angry.”

So, I’m just asking you be on the look out for this in your own writing and delete any extraneous telling that might hinder your story.

Just this bit of tightening can make a HUGE difference.

Mum’s The Word!

by Kristin Nelson

STATUS: I love when editors email and say they are ready to buy!

What’s playing on the iPod right now? HEARTBREAKER by Led Zeppelin

This is my public service message to help out all my fellow agents. A lot of writers (published and unpublished) blog these days so I want to send out a helpful hint to all you unpublished writers who blog and who now have representation and are just about to go out on submission.

As soon as your manuscript is submitted, mum is the word. You can’t blog about the manuscript, the submission, the editors who will see it, or any rejection letters because guess what, interested editors will often read the writer’s blog.

And how do I put this delicately? There is just information that we, as agents, want to control about the status of the submission (for example, who is interested or who has rejected it and if the writer is blogging about it… well, you can see where issues might arise).

Repeat after me. Mum is the word. Do not blog about it.

Agency Anomaly

by Kristin Nelson

STATUS: Plugging along. Only two weeks ago I was all pleased because I had caught up on everything. Ah, those were the days…

What’s playing on the iPod right now? ROCK THIS TOWN by Stray Cats

Sitting on the panel this past weekend also reminded me of a fact that I often forget—the fact that my agency is a little bit of an anomaly in this business.

The three other agents sitting on the panel all handled mostly nonfiction with an occasionally novel to fill out their roster.

I’m the exact opposite. About 98% of what I do is fiction with an occasional story-based nonfiction project such as Kim Reid’s memoir NO PLACE SAFE or Jennifer O’Connell’s book of collected essays EVERYTHING I NEEDED TO KNOW ABOUT BEING A GIRL I LEARNED FROM JUDY BLUME. This is actually unusual. The majority of agents sell nonfiction because it’s easier to sell (more quantifiable), takes less time to put together (because most nonfiction is sold in the proposal stage), and it usually tends to make more money (more six figure deals are for nf projects).

So why do I just mainly do fiction? Because that’s what I love and that’s where my passion is. And for me, for some reason, fiction is just easy to sell (and I do sell quite a few projects, even for debut authors, for high five or six figures, and I sell almost every project I take on). My nonfiction stats (early in my career when I handled both) couldn’t compare. I liked things that were too quirky for mainstream publishing. Go figure.

Now my agency thrives because I handle all types of fiction—including genre stuff such as romance or sf&f. A lot of agents are only interested in literary or commercial mainstream and let me tell you, literary fiction is one hard sell. When you understand how hard it is to place a literary novel, it becomes clearer as to why most agents concentrate on nonfiction to pay the bills.

How Honest Do You Want Us To Be?

by Kristin Nelson

STATUS: I spent the day working on a contract, tracking down one that hadn’t shown up, starting negotiations on some deals, and following up on submissions. And just to show you the randomness that sometimes occurs in the day-of-the-life of an agent, I ended up having this whole long conversation with an editor about baby names. We both agreed that we liked strong names for baby girls. She called me about a project and since we know each other well, we just go off on this side conversation.

What’s playing on the iPod right now? GOODBYE AGAIN by John Denver

This is an interesting question I think. Just recently, I participated in a conference workshop called 2-pages, 2-minutes. The premise of the class was that participants could submit the first two pages of their novel anonymously (and there were various workshops that tackled different genres). Then the workshop moderator would simply read aloud the two pages while 2 agents (and the participants who submitted) listened and read along with him. If we, as agents, would have stopped reading the submission, we were supposed to say so and then discuss why we wouldn’t read on. Or if by the end of the two pages, we would have read on, then we would explain are thinking for that as well.

A simple premise, right? Execution was incredibly difficult. Why? Because I have to say I felt a little uncomfortable being that brutally honest. There were some instances where the other agent and I wouldn’t have finished reading the first paragraph of one of the entries but how harsh would it be to say “stop” after reading only a sentence or two? I have to say we fudged a bit and waited until the conclusion of the next paragraph so as not to seem too harsh.

Now, being me, I tried to be honest about why I would have stopped while also offering constructive criticism on what could be changed or if there was an interesting premise or whatever but I have to wonder: how valuable is that? Did we crush any writer spirits? I hope not. I did emphasize that the writers there shouldn’t think this is the end-all, be-all moment of their writing career and that our response simply means that this manuscript isn’t quite ready to take them where they want to be. Still, it’s tough to hear that an agent couldn’t get beyond the first two paragraphs. My question is whether it’s important for participants to hear that.

Do aspiring writers really want us to be that honest?

I’m asking because I have to decide if I want to participate in a workshop like that in the future. Now, the conference organizers did poll the participants and the good majority of them said they did find it enormously helpful. Hum… were they just saying that?

Also, we only had one participant argue with us. When that person did, I just said, “okay, I’m just one opinion” and left it at that.