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February 23, 2023 | Entertainment

What Authors Should Know About Agency Agreements

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Author(s)
Marc D. Ostrow

Senior Counsel

Olivia Loftin

Associate Attorney

Matthew Fulton

Associate Attorney

Navigating the literary world as a debut author can be a difficult and frustrating experience.  Many successful authors choose to hire a literary agent to help them through the publishing process.  Literary agents help authors by providing their industry knowledge and leveraging their connections to help sell an author’s book.  Before an agent will represent an author, the agent will require the author to sign a contract that outlines the terms of the business relationship.  Like all contracts, there are certain provisions and terms that authors should carefully consider and questions that the author should ask before signing an agency agreement.

What is a literary agent?

A literary agent is a person who helps authors turn their ideas into published books.  Literary agents help authors pitch their books to publishers by preparing or editing book proposals and reviewing and editing manuscripts.  Good literary agents are well connected in the publishing industry and can leverage their network to put proposals in the hands of the editors most likely to acquire the book.  Literary agents may have been former editors or risen through the ranks of the business by starting out as an agent’s assistant.  The best agents have years of experience in the publishing industry.

Why get an agent?

Agents can provide a valuable service to authors.  Qualified agents are well versed in the ins and outs of the publishing process and can provide authors with valuable advice to help get a book to market.  Agents can help secure opportunities for authors that may not otherwise be available.  For example, many of the large publishing houses will not accept unsolicited manuscripts from unrepresented authors.  Agents may be able to put proposals in the hands of acquiring editors that an unrepresented author may not have access to otherwise.

Once a book has been acquired by a publisher, the agent, along with the author’s attorney, helps to negotiate the terms of the author agreement.  Qualified agents are well versed in standard terms that may not be familiar to authors such as morals clauses, option clauses and sub-rights provisions.  Further, agents may be able to help an author secure higher advances and royalties.

What is the scope of the agreement?

A major question that an author will want to consider about an agency agreement is the scope of the agreement.  An agency agreement should clearly outline exactly what works and rights the agent is representing and what services they are expected to perform.  Authors should consider whether they wish the agent to represent one book or the author’s entire breadth of work.  Additionally, the agency agreement should explicitly state which rights the agent is authorized to sell.  Many agencies have in-house sub-rights departments that are well equipped to sell foreign rights, film and television rights, and other subsidiary rights.  For agencies that don’t have in-house sub-rights departments, the agency may have a co-agent who assists in selling the sub rights.

What is the agent promising to do?

Another contractual point that is important to iron out is what the agent is promising to do for or on behalf of the author.  The agency agreement should include what responsibilities the agent is taking on.  This may include: 1) providing feedback on the author’s work, 2) pitching the author’s work to appropriate publishers, 3) assisting the author’s attorney in negotiating on behalf of the author, 4) keeping the author informed of pitches and status of negotiations and 5) receiving, tracking and distributing advances and royalties.

How is the agent getting paid?

Perhaps the most important term is the provision that spells out  the agent’s compensation.  Generally, an agent gets paid a percentage of the author’s revenue from the work.  Authors should be careful that they’re not agreeing to pay an agent more than the industry standard percentage of royalties.  Further, agency agreements should clearly detail any commissions that are paid to co-agents working in conjunction with the agent on the author’s behalf.

How can the agreement be terminated?

Not every business relationship works out and an author may at some point desire to fire their agent and seek representation elsewhere.  That is why authors should carefully consider the termination language in their contract.  Termination clauses vary between agencies.  Some agencies ask for a certain time period to sell the book before the author can terminate while others allow termination at any time.  Regardless, the agency agreement should clearly state whether and what compensation the agent is entitled to after termination.  In some cases, the agent is entitled to continue to receive compensation for books that they sold for the life of the book while others will include a “sunset” clause where the agent’s income will end after a certain period of time.

Conclusion

Literary agents are one of the most important members of an author’s team.  Agents can help ensure the success of a book by connecting authors to editors and publishers and advocating on the author’s behalf.  Signing an agency agreement is one of the first and most pivotal steps an author takes in their career.  Authors should carefully consider the terms of these agreements and have a qualified publishing attorney review the agreement before signing.  If you are an author and would like an experienced attorney review your agreement, contact us today!

Contributions to this blog by Keegan Dyer. 

Photo by Dmitrij Paskevic on Unsplash
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