The getting-a-book-published basics, part X: the agency contract revisited, or, excuse me, sirs, but could any of you tell me which one of you will be representing my book tomorrow?

police line-up

Last time, I broached the seldom-discussed issue of agency contracts — you know those handy documents that spell out explicitly what the agent offering to represent you will do for you in exchange for how much. While most aspiring writers simply squeal and shout, “Yes! Yes! Yes!” the nanosecond an offer emerges from an agent’s mouth, it’s very much in your interest to know what you’re agreeing to before you agree to it.

In other words: not all agencies are created equal. Nor do they all operate in the same manner.

There are, however, some norms. As those of you who pored over yesterday’s post may recall to your sorrow, in going over how (and how much) US-based agents typically get paid for representing their clients’ work, I mentioned that US agency contracts typically specify 15% for books sold to a North American English-language publisher, 20% or more for sales to non-North American publishers, whether the book is published in English or not.

“Um, Anne?” a small, confused chorus has been piping out there in the ether ever since I first brought it up. “Was the bit about English-language North American sales just a really complicated, drawn-out typo? Aren’t there other people in the world who read English — like, say, the people in England? Why aren’t all of the English-language sales lumped together, and the foreign ones together?”

Ah, because that would make sense, my friends. The industry likes to keep all of us guessing by throwing a cognitive curve ball every now and again, so this is going to require a fairly extensive and rather convoluted explanation.

Before I launch into it, you might want to pop into the kitchen and make yourself some tea, or fluff up the pillows on your ottoman. I’ll wait.

Okay, everybody comfortable? Here goes.

North American vs. world rights
From the point of view of your garden-variety US publisher, books published in the English language fall into three categories: those sold in North America (meaning in the US and Canada), those sold in Great Britain, and those sold in other countries. So when folks in the industry speak about a US-based agent selling a book to a US-based publisher, they’re generally talking about the first North American rights: the publisher has bought the ability to be the only source of the first addition of the book in the US and Canada.

Of the three categories, only North American rights are considered English-language sales, for contractual purposes. The last two are considered foreign-language sales, which is why — pay close attention here — if your agent manages to sell your book to a UK-based publisher, you will be selling the world rights. Believe it or not, the world excludes North America — which I imagine might come as something of a surprise to those of us who live here.

There — and you thought it wasn’t going to make sense.

What might all of this rigmarole mean for the writer? Perversely, if EXACTLY the same English-language book by a US author was sold in Canada and Great Britain, the author’s US agent would take 15% of the royalties on the first and 20% on the second. Sometimes, the Canadian rights are subsumed in the world rights (if, say, the publisher is UK-based), instead of under the North American rights.

Before you laugh out loud, I should warn you that this scenario is not particularly far-fetched: all of the books in the HARRY POTTER series were sold in a slightly different form in the former Commonwealth than in the U.S. Why? Well, chips mean one thing to a kid in London and another to a kid in LA, and while apparently the industry has faith that a kid in Saskatchewan could figure that out, it despairs of the cultural translation skills of a kid in Poughkeepsie or Omaha.

This is why, in case you were curious, you will see the notation NA in industry discussions of book sales — it refers to first North American rights, minus Mexico. Rights to sell books south of the border, in any language, fall under foreign language rights, which are typically sold on a by-country basis. However, occasionally an American publisher will try to score a sweet deal on a book expected to be a bestseller and try to get the world rights as part of the initial deal, but this generally does not work out well for the author.

Why? Well, do the math: if a book is reprinted in a second language and a North American publisher owns the foreign rights, the domestic house scrapes an automatic 20% off the top of any foreign-language royalties accrued by the author. (If this discussion seems a trifle technical, chalk it up to the rather extended struggle I had to retain my memoir’s foreign rights; back in the day, my now-gun-shy publisher wanted ‘em, big time. But they’re mine, I tell you, all mine!)

I cannot stress enough, though: read your contract. Ask some questions. Norms are just norms; individual agencies’ policies do vary.

But what if I am represented by an agent based outside North America — or if I’m unsure if a North American one is asking me to agree to legitimate terms?
Obviously, what constitutes a domestic sale would vary depending upon the country in which the agent does his primary business. So if you are reading this somewhere outside North America, or translated into a language other than English, you should not blithely assume that what I am saying here applies to your home country; it’s always worth your while to check with your national literary agents’ association. For the English-speaking world, the top ones are:

In the United States, contact the Association of Authors’ Representatives.

In the United Kingdom, contact the Association of Authors’ Agents.

In Australia, contact the Australian Literary Agents Association.

I couldn’t find a specific association for Canada (if anyone knows of one, please let me know, and I’ll be delighted to update this), but the Association of Canadian Publishers’ website does include information about literary agencies north of the border.

Not all agents are members of these organizations, but if there have been complaints from writers in the past, these groups should be able to tell you. They are there to help writers make crucial decisions about who should represent their work. So are writer-protection sites like Preditors and Editors or the Absolute Write Water Cooler, excellent places to check who is doing what to folks like us these days. Writer Beware, a website sponsored by the Science Fiction and Fantasy Writers of America, provides a wealth of resources for those who want to learn about scams aimed at writers.

Please don’t dismiss the notion doing some minimal checking to assure the agents reading your work are on the up-and-up as writerly paranoia — who represents your work is too important to your writing career to leave to chance. Remember, not everyone who slaps up an official-looking website is actually an agent, and good writers too nice to want to seem confrontational get burned all the time.

In case it might influence the decision-making process of those of you quietly rolling your eyes at the prospect of investing even more of your scant writing time in researching folks whose ostensible purpose in life is to help writers, I should add: all but the last site I listed are also pretty good places to learn about agents’ specialties, on the off chance that you might be looking for someone to query now that the Great New Year’s Resolution Plague of 2010 is fast receding into memory.

I just mention.

Let’s assume for the moment, though, that the agency lucky enough to land you as a client — strange to think of it that way, isn’t it? — is as reputable as reputable can be. Most agencies are. Even under that happy circumstance, it’s very much in your best interest to understand how and to whom an agent might market your book before you read, much less sign, an agency contact. Not only because these distinctions are rather counter-intuitive, but because they’re the criteria used to determine what percentage your agent will take out of your advance and royalty checks.

Again: read your representation contract before you sign it. Ask some questions. The only way this relationship is going to work to both your benefit and the agent’s is if both parties understand precisely what each of them is supposed to do.

Tell me again how I’m supposed to cover all of this in my first conversation with a prospective agent without sounding like a paranoid jerk?
I sense that some of you have gone a bit pale over the course of the last dozen or so paragraphs. “Um, Anne?” a few queasy souls inquire. “You’re kidding about expecting me to have an intelligent discussion of all of this with my agent in the first 30 seconds after he’s offered to represent me, right? Couldn’t I just agree to let him represent me, and sort the details out later?”

Well, of course you could — as I said, most aspiring writers just blurt out “Oh, God, YES!” before finding out anything about the terms to which they’re agreeing at all. I can completely understand this impulse: mistrust is the last thing on your mind when you are thrilled to pieces that a real, live agent wants to represent you.

Yes, YOU. How thrilling!

Trust your Auntie Anne on this one, though: honeymoons do occasionally end, and not generally because anyone concerned has done anything especially nefarious. Remember, agents move from one agency to another all the time, especially in this economy. If this happens, you will need to know with whom you have a contract, the agency or the agent. (Either is possible.)

It’s also not unheard-of for an agent to stop representing a particular genre even though she has clients still writing and publishing in it. Writers occasionally develop a sudden urge to compose a book in a category for which their agents do not have current contacts. And so forth.

The agency contract is, in short, one contract to read with your glasses ON, and paper by your side to jot down questions. It’s perfectly legitimate to request time to pore over it. Then pick up your notes, hie yourself to a telephone, and start asking follow-up questions.

If you do not have an opportunity to see a copy of the agency contract before having your first serious conversation about your future with your new agent — as will probably be the case; many agents are notoriously slow in sending out representation agreements — do make a point of asking the agent in your first conversation for a brief overview of its major points.

That’s merely good sense whenever you are going to deal with a business with which you are unfamiliar, and it would never occur to a reputable agent to take your caution at all personally.

Because, you see, by being cautious, you’re not calling the agent’s integrity into question, but making sure you know precisely what she is proposing that you do together. After all, the agent almost certainly will not have been the person who wrote the contract; the agency will have an established boilerplate. Naturally, it is in an honest agent’s best interest for a prospective client to understand the contract-to-be well enough to abide by its provisions.

Allow me to repeat something I dropped into the middle of that last paragraph, because it comes as news to a lot of newly-agented writers: unless your future agent happens to own the agency, it is the agency — not the agent whom you are prepared to love, honor, and obey for as long as you shall write and she shall sell — who will set the terms of your relationship.

The agency, not the agent, produces that contract I keep yammering about, after all; the agent may not even sign it. So a savvy writer should be very, very interested in the policies and procedures of any agency to which she is about to commit herself and her writing.

Wait — what do you mean, I’m committing to the agency, not just the agent?
That’s right — agency policy will affect you, and that agent who is being so nice to you on the phone will not be the only agency employee who will be dealing with your work. Among other things, the agency, and not merely the agent, is going to be handling every dime you make as a writer — and furthermore, telling the fine folks at the IRS all about it.

Remember, your publisher will be sending your advance and royalty checks to your agency, not to you personally. (For a more in-depth examination, please see the ADVANCES and ROYALTIES AND HOW THEY WORK categories on the list at right.) If your work is going to be sold abroad, the agency will turn your book, your baby, over to a foreign rights agent of ITS selection, not yours — and will be taking a higher percentage of your royalties for those sales than for those in the English-speaking parts of North America, typically. And the agency is also going to be responsible not only for keeping the government informed about all of these transactions, but also preparing those messily-carboned royalty forms that you will be submitting with your taxes.

That’s a whole lot of trust to invest in people who you may never meet face-to-face, isn’t it? Or, in some cases, people that you may not even know exist?

Did I just hear a giant collective gasp out there? I hate to be the one to break it to you, but many authors never meet their agents in person; is it really all that surprising, then, that few are on friendly terms with the rest of the agency’s staff? It’s not as though the agency will fly a prospective client from California to New York just to get acquainted. Since almost everything in the biz is handled by phone, e-mail, or snail mail, face-to-face contact is seldom necessary.

The result? Well, it’s not a scientific sample, of course, but I know plenty of writers who couldn’t pick their agents, much less the principal of their agency, out of a police line-up. (Not that you really want to be in the position to hiss, “That’s she, officer. SHE’S THE ONE WHO DIDN’T MAIL MY ROYALTY CHECK,” but still.)

Ideally, you want relationships with both your agent and agency so comfortable that you have no qualms — and no need to have any — about simply handing the business side of your writing over to them and letting them get on with making you rich and famous. (Which you already know that no agent cannot legitimately promise up front, right?) So while asking a whole lot of pointed questions at the outset may seem mistrustful, doing so will actually substantially increase the probability that you’re going to trust and respect your agent a year or two down the road.

At minimum, find out whether you are signing with the agency as a whole or with the agent specifically: contracts come both ways. Remember, agencies vary quite a bit. Some are set up so the royalty money all goes into a common pool, funding the entire agency, and some are run like hairdressing establishments, where each chair, so to speak, houses an independent contractor, and no funds are mixed.

Why should your agent’s employment arrangements concern you? Well, if you are the client of an independent contractor-type agent, if she leaves the agency, you more or less automatically go with her, or will at least be given the option of doing so. If your contract is with the agency, you probably will not.

Again, asking about this is not being paranoid; it’s being prudent. Few human relationships are permanent, after all.

Let’s face it: some agencies have pretty short lifespans. It’s also not all that uncommon for agents simply to burn out on the biz; selling books is hard work, after all. And since many agents have a track record of agency-hopping every couple of years — as many junior agents do; it’s a smart way to build a professional lifetime’s worth of contact lists — may I suggest that how the agency is set up may affect your life pretty profoundly?

Don’t think that nice agent who called you to offer to represent you would drop out of sight? Okay, cover your representation contract — no peeking now — and answer these trenchant questions:

(1) If your agent retired, would you still be represented, or would you need to find a new agent?

(2) What about if she got laid off and the agency did not replace her, as is happening in agencies all over the country right now? Would you still be represented then?

(3) What if she got into a car crash, God forbid, and had to cut her client list in half?

(4) Does the agency have any hierarchy in place to mediate any disagreements that may If you had a fundamental disagreement with your agent, could you move to another agent within the agency, or would you need to find a new agent elsewhere?

(5) On the brighter side, what if your agent started an agency of her own?

Yes, I actually do know authors to whom each of these things has happened; thanks for asking. None of them had even considered any of these possibilities until the realities hit them in the face. And virtually all of them now say that it never occurred to them to question whether the agency would be there to support them if something happened to their again.

But perhaps that’s not too surprising: many an author could not pick any member of her agency’s staff but her agent out of a crowd at a writers’ conference. Or out of a police line-up, for that matter.

So I take it you’re saying that this isn’t a business that runs on handshakes
Sometimes it is, but you should be very wary of an agent who is not willing to offer you a written contract. Contrary to popular belief, verbal contracts may be binding (if some consideration has changed hands as a result of it, as I understand it; if you handed someone a $50 bill and the keys to your car after the two of you had discussed his painting a mural on the passenger-side door, I’m told that could be construed as a contract, even with nothing in writing, but you should definitely talk to a lawyer before you attempt anything so zany), but as I MAY have pointed out, oh, 1800 times in the last 5-plus years, this is an industry where the power differential tends not to fall in the writer’s favor until after she is pretty darned well established.

Protect yourself. A good place to start: reading your representation contract and asking some intelligent questions.

Assume, too, that at some point, you will want to revisit some of these issues. If you are offered a written contract, make yourself a photocopy so you may refer to it later.

Yes, even if the agent or agency’s head has not yet countersigned it. Many agented writers report that they have never seen another copy of the contract again after they signed it.

Dare I hope that those great, gusty sighs I hear wafting from my readership mean that this is all sinking in? “Okay, Anne,” sadder-but-hopefully-wiser writers everywhere concede. “I get it: it’s not in my interest to take the details of the agent-client relationship on faith. I need to ask questions when I don’t understand something. But right now, I don’t think I have the energy to do that, because you’ve depressed me into a stupor. The last couple of posts have occasionally read as if half the agents out there are evil trolls, waiting under every bridge into Manhattan in the hope of defrauding innocent authors.”

Of course, that’s not the case. The vast majority of agents honestly are good people who love good writing and want to help writers — but as in every profession, not all of them are scrupulous about fulfilling their obligations toward their clients. It behooves us all to be cautious.

So read that contract; act those questions; walk into that agency with your eyes wide open and your reading glasses firmly on.

And please, when the time comes: don’t be so flattered by an agent’s attention that you just agree to everything you are asked — or contractual provisions you don’t know exist. That’s how good writers get hurt, and I don’t want to see it happen to any of you. Put up your antennae before entrusting your precious manuscript to just anyone’s care.

Next time, I’ll talk about what agents do with manuscripts after the representation contract is signed. In the meantime, keep up the good work!

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