Each agency has its own form of an author-agent agreement. You should understand and feel comfortable with the contract before you sign it. Ask the agent to clarify any terms or clauses you do not understand. You may also request reasonable changes. The author-agent agreement may outline, note or include the following:
- Confirmation that your agent is the exclusive sales representative for your work.
- The right of your agent to hire co-agents to help sell subsidiary rights.
- The agent’s responsibilities.
- What work your agent will represent (usually all of an author’s literary works in all forms).
- The duration of the agreement - some contracts have a specific period of time after which the author has the option to extend the contract or allow it to lapse.
- How notification must be submitted to terminate the contract. For instance, by certified letter with a thirty-day notice.
- The agent’s right to represent competitive books.
- The amount of the agent’s commission.
- Additional expenses you are responsible for (such as messenger service costs, the purchase of review galleys, or attorney’s fees).
- A clause stating that, upon request, you are entitled to receive an itemized list of expenses.
- The right of the agent to act as a conduit for payments received by the publisher.
- The remittance time for issuing payments to you after they are received from the publisher.
- You affirm that you have the right to allow the agent to sell the book. (In other words, you confirm that no one else can claim rights to the material.)
- A clause stating that, in the event of your death you have the right to assign the agreement to your heirs. This ensures that any outstanding royalties or income are paid to your estate.
- Which state’s laws will be used to interpret the contract, should a dispute arise. Usually it is the state where the agent’s office is located.
- The method that will be used to resolve disputes - for example, mediation, arbitration, or litigation.
- A clause stating that any changes to the agreement must be approved by both parties.
- Under what circumstances you can terminate the agreement - for example, this section may note what your responsibilities are if you leave before the contract expires.
- What your agent’s rights and responsibilities are after the agreement ends - for instance, the agent may retain the right to sell subsidiary rights for any books she has sold while under contract.
How to Protect Yourself
If you are signing with a new agent who does not have an established reputation, you may wish to consider negotiating more specific terms designed to protect yourself should the agent be unable to sell your book or if you become unhappy with the relationship.
Include an exit clause.
This clause allows you to terminate the contract should anything go wrong. If an agent agrees to this clause, he will most likely include a stipulation that should your book sell in the future to any of the publishers he pitched, the agent is entitled to the commission. The agent may also require an extended termination notice, such as 120 to 180 days.
Limit the term.
If the agent does not agree to an exit clause, then insist upon a term limit which specifies a period of time (for instance, eighteen months) after which, if the agent has not sold the book, the author has the option to seek alternate representation.
Add a key man clause.
A key man clause specifies that should your agent leave the agency for another firm, you have the right to terminate the agreement.
Request a cap on expenses.
If the agreement specifies that you are responsible for legitimate expenses incurred by the agency, ask for a cap to be placed on those expenses (for instance $300 or $500.)
Consider hiring an attorney.
If you choose to hire an attorney to review the agreement it is important that the lawyer:
- Provide a fast turnaround time. You do not want to keep an agent waiting and risk having the offer rescinded (which is a common occurrence when lawyers become involved in the process).
- Is an expert in book publishing and agent agreements. Do not obtain the services of a general “entertainment” attorney, you need someone who is adept in the publishing industry.
- Outlines his points to you, so you can approach the agent to request the changes. Never have the attorney contact the agent directly.
- Cleary defines his fee prior to reviewing the material. You do not want to have any surprises later.