What is this agency contract, anyway, and why should I read it?

I’ve been talking for the last few days about the need to look the gift horse of representation offer very carefully in the mouth before you sign anything — and even more carefully before you pay for anything. I’ve been trying to impress upon you, in with my patented brick-through-a-window subtlety, that anytime anyone asks you to pay them to help you advance your writing career, you should be wary. In fairness to the fee-charging agencies I’ve been discussing, they aren’t the only entities a writer should approach with caution.

You should approach signing with ANY agency with caution, armed with as much accurate information you can possibly glean about them. Because, contrary to popular belief and conference-circuit rumor, not all agents — or agencies — are alike. Even at equal levels of prestige, a writer’s experience being represented by one agency may be outrageously different than being represented by another. Expectations and office practices differ. So the more you can know about the agency before you hand your book to it, the better.

Yes, contracts are poorly-written, generally speaking, and it may be intimidating to ask the agent of your dreams probing questions, but it is VITAL that you understand how your new agency works before you sign the representation contract. Don’t assume that your agent will have explained everything important to you before ink hits paper; as I may have mentioned once or twice before, agents are extraordinarily busy people. Very nearly as busy as they think they are, which is saying something. As a group, they tend not to be overly given to explaining themselves or the industry.

Ringing some bells from my last few posts? It should be. This aversion to taking the time to explain the rules to those new to the game is one of the major causes of the assumption I mentioned a couple of days ago, the one about how all talented writers are born with an extra gene that serves as a universal translator for all of the quirks of the industry.

This is not to say that most agents will not answer direct questions — if you leaf through the standard agency guides, you will see that one of the most common dream client traits is the ability to ask good questions. In fact, the problems usually arise when the writer has NOT asked a question where clarification is necessary.

I know, I know: we’re all afraid of being nagging clients. Trust me, when agents talk about nightmare clients, they are talking about writers who call every other day to see if their books have sold yet. Or writers who miss their deadlines. Or even writers who pretend they understand publishing norms that they do not, and end up embroiled in I LOVE LUCY-level complications.

They are not, I assure you, talking about the writer who sends a polite e-mail or calls to say, “Um, when my editor said she wanted my manuscript to be 80,000 — 90,000 words, was that estimated word count, or actual?” (Far from a silly question, incidentally — the difference can be substantial.)

Most agency contracts are easy-in-easy-out affairs, covering either the selling process for a single book or a year’s or two’s time — a choice 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 that she wants to seek representation elsewhere, 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. And keep marking it every year.

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. Agents move from one agency to another all the time (if this happens, you will need to know with whom you have a contract, the agency or the agent; either is possible), and it’s not unheard-of for an agent to stop representing a particular genre even though she has clients still writing and publishing in it.

This is, in short, one contract to read with your glasses ON, and paper by your side to jot down questions. Then pick up that piece of paper, get yourself to a telephone, and start asking.

And try not to think of it as beginning the relationship on a confrontational note: it’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, it is not an individual’s word you are questioning, but a contract drawn up by other people. Naturally, it is in your agent’s best interest for you to understand it well enough to abide by its provisions.

Allow me to repeat that, because it comes as news to a lot of aspiring writers: unless your prospective agent owns 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 sets the terms of your relationship.

What does that mean, in practical terms? If you are successful, THE AGENCY, AND NOT MERELY THE AGENT, IS GOING TO BE HANDLING EVERY DIME YOU MAKE AS A WRITER.

The agency will be producing those nasty, messily-carboned forms that you will be passing along to the I.R.S.; your publisher will be sending your advance and royalty checks to them, not to you. 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.

That’s a whole lot of trust to invest in people who, in many cases, you will never meet face-to-face. Seriously, since almost everything in the biz is handled by phone, e-mail, or snail mail, 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.)

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. 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.

You don’t hear about this much at conferences, but actually, that’s one of the best things about signing with an agent worthy of your trust: you can concentrate on your writing, confident that she’s looking after your interests in the big city.

Tomorrow, I’ll talk about what agency contracts do and don’t include, but in the meantime, this seems like a fine opportunity to remind you that soon, I shall be putting together a glossary of industry terms for your easy reference. So please, if there is a term that you would like defined (literary fiction vs. mainstream fiction, anyone?), leave a comment, so I may add it to the list.

Keep up the good work!

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