If you’ve recently signed an agency agreement, Kristine Kathryn Rusch will scare the pants off you.
Once again, she has written an important, detailed and well-documented essay about some agents turning into predators in the face of the many changes happening in publishing.
The full moon is out and some formerly pleasant people are beginning to howl and bare their fangs.
One of the many interesting parallels between contemporary publishing contracts and contemporary agency contracts is that each species tries to get a piece of an author forever. Rights for ten or fifteen years? Not nearly long enough. Publishers are going for 100 years or more.
As Kris documents with specific clauses, many “standard” agency contracts give your agent 15% of every part of everything you do forever, whether you fire the agent or not. In the immortal words of Buzz Lightyear, “To infinity and beyond!”
It strikes Passive Guy as a desperate survival strategy for agents and agencies – tie up as many authors as we can for as long as we can and maybe all those 15% pieces will aggregate into enough money to pay the rent and buy groceries. When crunch time comes, what’s good for the author, what’s traditional in author/agent relations, what’s ethical, what’s legal just go down the storm drain and end up in the Hudson somewhere.
It’s all about the agent as a barnacle, grabbing hold and never letting go regardless of whether the agent is doing anything for the author that’s worth paying for.
Kris’ simple and practical solution? Don’t sign an agreement with an agent.
PG can’t fault that approach. You won’t get screwed by a contract you don’t sign.
What PG would add to Kris’ analysis is an individual or organization that is trying to persuade clients to sign unconscionable contracts is unlikely to limit its unconscionable impulses only to contracts. The horrible contracts are just the part of the iceberg you see. There’s a lot more below the waterline where you can’t see it.
This is cynical recovering lawyer PG talking. The #1 rule of doing business with someone is to choose an honest business partner. You can make a lot of other mistakes and still come out OK if you deal with honest people.
If you do business with crooks, you’re going to lose money. You may lose it via an unfair contract or you may lose it via embezzlement or you may lose it via your partner selling you out for personal gain or you may lose it in a hundred other ways. You can have dozens of lawyers on call and you’ll still lose money.
You might believe you have so much talent and are such a nice person that you would be exempt from such consequences.
You’d be wrong.
Following are a few excerpts from Kris, but her’s is an essay you’re going to want to read carefully and save for future reference. To be on the safe side, your best bet might be to tattoo the following paragraphs somewhere on your body where you’ll always see them (tattoo them backwards if you’ll be reading them in the mirror):
Those agency agreements [of twenty years ago] weren’t that big a deal. They were breakable with a single phone call, and there would be no hard feelings. Also about this time, publishers realized they had a liability issue when they gave a writer’s check to the agent. So publishers requested an agency clause in the contract of any writer whose agent got the check first. All that clause would say was that the writer authorized Really Big Publishing House to issue the writer’s checks to Number One Agency, and that would be considered payment under terms of the contract.
. . . .
At the turn of the century [20th into 21st], Hollywood business practices infected the boutique and corporate literary agencies. I have examples in my files from one former boutique agency (now a corporate agency) showing the evolution of the agent clause they put in a publishing contract. It went from “send the check here” to this [emphasis mine]:
“The Author hereby irrevocably appoints [Agency]…to act in all matters pertaining to or arising out of this agreement and all other agreements, licensing, or otherwise dispersing of any rights in the Work in any form or media, and including any works for which there are options under this agreement…In consideration for services rendered, the Author irrevocably assigns and transfers to the Agent a sum equal to 15% of all monies due the Author under this Agreement and related agreements….”
It ends with this rather astonishing sentence: The provisions of this paragraph shall survive the termination of this Agreement.
Um, excuse me? Lawyers out there, tell me how this is possible.
That paragraph is a minefield of horribleness. It irrevocably assigns at least 15% of earnings from the sale of any rights in the book to the agent, as well as the same amount in works that are covered under the option clause. So if the agent negotiates a broad option like this one: “The publishing house has the option on the author’s next work,” then the agent will earn his 15% in whatever that next work is…even if the publishing contract is terminated.
. . . .
This agent clause which goes into a publishing agreement has all the traditional stuff about payment. And then it says [again, emphasis mine], “For services rendered and about to be rendered, the Author does hereby irrevocably assign and transfer to said agent and said agent shall retain, a sum equal to 15% as an agency coupled with an interest….”
Oh, my God. I wouldn’t have signed that as a twenty-one year old newly birthed nonfiction writer. It sounds scary because it is. It means that the writer has assigned his agent—irrevocably—15% of the book. “An interest” is a legal term and (lawyers, you can correct me), it means that the agent now has a piece of that property. 15% worth to be exact.
. . . .
But let’s now move to the worst offender I’ve seen in the past few months. I’m not going to say it is the worst offender out there, because I haven’t seen all of them. It’s just the worst of my little trio of horrors.
This big name agency has the same clause as the one above. But coupled with the agency agreement—a five-page document that gives the agency the right to negotiate for the writer on any matters on the writer’s behalf. It also gives the agency “commissions earned by, paid to or credited to” the Author “or any entity owned by or controlled by” the Author “in perpetuity.”
Seriously. In perpetuity.
And in case the writer missed that point, there’s this: “The Author understands and agrees that the provisions of this Agreement which by their very nature survive the expiration of the Term of this Agreement.” And then it goes on to list all the negotiation, money clauses, and interest in the work clauses as surviving the Term of the Agreement.
In other words, you can fire this agency, but you—and your heirs, and any corporation that you form or trust that you create—will owe that agency money forever.
Now, technically, forever isn’t an acceptable contract term. Contracts need an end date to be valid. But again, do you (or your kids or your grandkids) want to be the one to go to court to win that fight?
This five-page agent agreement is so egregious, by the way, that even if you fire the agency, they can still negotiate a deal for you and undercut any new deal you might negotiate for yourself. And you, if you signed this agreement, gave them permission to do so.
Link to the rest at Kristine Kathryn Rusch