The agency contract

Yesterday, I discussed the desirability of getting a sense of who your agent IS before signing a binding agency contract. Today, I am going to launch into how agencies differ from one another. The short version: not all agencies are created equal.

It is, of course, vital that you understand how your new agency works before you sign the representation contract; don’t be afraid to ask questions about the fine print on the contract. Most agency contracts are easy-in-easy-out affairs, covering either the selling process for a single book or a year’s time — a choice generally made by the agency, not the author. Some contracts, however, have a rollover clause, which stipulates that if the author has not notified the agency by a particular date, the contract is automatically renewed for the following year. If you sign with an agency that favors the rollover clause, make sure you know precisely when the opt-out date is. Mark it on your calendar, just in case.

Yes, I know: mistrust is the last thing on your mind when you are thrilled to pieces that a real, live agent wants to represent you. But trust your Auntie Anne on this one: honeymoons do occasionally end. This is a contract to read with your glasses ON.

Because, you see, if you are successful, the agency, and not merely the agent, is going to be handling every dime you make as a writer. It will be producing those nasty, messily-carboned forms that you will be passing on to the I.R.S. 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. (If you missed my explanation about the rather bizarre distinctions between North American and foreign rights, check out my blogs of Sept. 26-28.) If something happens to your agent — a leave of absence, a move to another agency, or even just not being in the office when a crucial call from an editor comes — the agency will be handling your interests.

In short, you don’t just need to trust your agent — you need to trust your agency as well. A few quick illustrative anecdotes will help show why.

I had been signed with my wonderful, amazing, devoted agent S.G. for less than six months when she had a baby. Miracle that S.G. is, she managed to sell my book AND another client’s before they wheeled her off to the delivery room, but for some months, it looked very likely that the contract negotiations for my memoir might end up being handled by another agent. As it turned out, another agent held my hand during the rather nerve-wracking period between contract-signing and book delivery — which, in my case, was only about two months.

I think it’s safe to say that I was not always perfectly happy and level-headed during that intensely stressful period. I was lucky that I had been temporarily reassigned by my agency to a delightfully patient and kind listener.

More seriously, I was also still under the care of my interim agent when the first lawsuit threat came. (Oh, yes: it came in two waves, one in early July, followed by much silence, then another in early September. Different allegations about the book each time, I might add.) If my agency were not full of very competent, very supportive people, I might have been left to face the threat unadvised. Having known other writers who have had to deal with lawsuits over their memoirs (hey, I get around) without the help of an agent, I feel very, very fortunate.

And very glad that that I read my agency contract very well before I signed it, so I felt secure about the agency that would be taking care of me.

Okay, I hate to do this, but I am now going to share the story of Lois, a writer who did not fare so well. Lois’ agent just stopped answering her e-mails one day; returned phone calls became a thing of the past. And because Lois was, like so many writers, long trained in assuming that any silence must have something to do with the quality of the book, she naturally fell into hyper-revising mode. Yet when she meekly submitted a new version of her novel, she STILL heard nothing.

“Have I offended my agent somehow?” Lois wondered. After wondering about it for a couple of weeks, she concluded that she must have. She sent a formal apology. Still no word.

Weeks dragged on into months, and after three, Lois had had enough. She called the main number for the agency, and demanded to know how she could terminate her contract with the agent.

“Wait,” the astonished receptionist told her, “didn’t anybody tell you? She had to have emergency surgery. Poor thing, she’s been in physical therapy for months.”

Of course, Lois felt really small, but actually, I think that the agency should have been the ones apologizing. That many months sans agent, and the agency hadn’t thought to notify her clients? A quarter of a year can feel like a lifetime to an author whose book is being circulated.

When you are looking over the contract, check to see whether you are signing with the agency as a whole or with the agent specifically: contracts come both ways. Agents move around all the time, and some agencies can have pretty short lifespans. If your agent retired, for instance, would you still be represented? What about if your agent started an agency of her own?

May, one of the most gifted writers I know found out too late that her contract was with her agent, not her agency, upon learning that her agent had died. Something of a surprise; May hadn’t even known that she was sick. (After you’ve hung out around represented writers for awhile, you will start to notice how often authors are NOT informed about illness, imminent life or career changes, or sometimes even the firing of their agents and editors. We writers always seem to be the last to know.) May was very sorry, of course, because she had liked her agent very much, but it never occurred to her that she no longer had representation.

Until she received a letter from the agency, a couple of weeks later. Seems that the agency had hired a replacement agent — who did not represent May’s kind of work. No offer to help her find another agent, nothing. Just goodbye and good luck. May checked her contract and, sure enough, she hadn’t signed with the agency at all, only her late agent.

Why the distinction? Well, the contracts between agents and their agencies can vary quite a bit. Some are set up so the royalty money all goes into a common pool, funding the agency, and some run like hairdressing establishments, where each chair, so to speak, is an independent contractor. If you are the client of an independent contractor-type agent, if she leaves the agency, you more or less automatically go with her. If your contract is with the agency, you probably will not.

My very talented friend Sydney was recently caught in a sort of in-between situation: her contract left the issue a bit ambiguous, specifying that Sydney would be represented by Agent X AT Agency Y. So when Agent X, without any advance warning, suddenly decided to leave Agency Y to start her own agency, Sydney actually wasn’t sure if she was still represented at all. It turned out that she had three options: break her contract and sign a new agency agreement with Agency Y, but be assigned to a new agent whom she did not know; break her contract and sign with Agent X in her new agency, or break her contract and seek representation somewhere else. No matter what, her old contract was more or less defunct.

Since, like many of us, Sydney had spent years seeking the perfect agent for her work, Option 3 sounded to her a lot like putting her hand in a meat grinder. She ended up following her agent.

My point is, unexpected things can happen. If you understand your contract, you will be much better prepared to deal with emergencies as they arise.

Oh, and don’t forget, those of you who have material out with important agents and/or editors at the moment: the Frankfurter Buchmesse — that’s the Frankfurt Book Fair to those of us stateside — will be running from October 19-23. A hefty proportion of the heavy hitters in the industry attend this, often grabbing European vacation time on either end. As a result, work on NYC desks tends to pile up at the end of October.

What this could mean for you: a slower response time than usual, in an industry already notorious for slow response times. Don’t panic; it’s not about you.

Keep up the good work!

– Anne Mini

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