With minor edits to improve anonymization and a few other elisions, here is the original version of a contract a literary agent submitted for my approval, with remarks.
The revised version I sent back was almost completely rewritten – not just for clarity but to remove dangerously nonsensical turns of phrase, as you will see. My revision was also actually typeset and looked like a contract instead of a letter banged out using MS Word defaults.
What one agent’s first offer looks like
This letter shall confirm our agreement regarding my representation of you as your literary agent. I will act as your exclusive agent with respect to the Work, and all projects derived from or related thereto, including but not limited to any subsequent Works optioned by publishers upon sale of the Work.
Here our troubles begin. At no time will I “sell” my literary work the way Starbucks sells you a soyaccino. One or more limited licences to publish my work will be granted for payment. It’s my work, not anybody else’s, and it is not for “sale.”
This error of nomenclature could have serious consequences for any author who agrees to it: You will have contractually agreed to hand over your work forever.
I will provide advice to you regarding the formation and the Work, and will use my best efforts to place the Work for publication with a publisher acceptable to you. In addition, I will make reasonable efforts to exploit appropriate subsidiary rights not controlled by the publisher of the Work.
I may employ a coagent or subagent in instances deemed necessary in my judgment. Such instances may include but shall not be limited to the sale of electronic, foreign, or film rights to the Work.
Here’s another warning sign. The agent can hire somebody at will…
I shall withhold a commission of 15% on all incoming monies due you. This commission may be increased up to 20% in the event that a coagent or subagent is employed (except in the engagement of a film agent, in which case the total commission shall remain 15%), one‐half of which shall be distributed to the subagent.
…and ding me an extra 5%, of which the agent keeps half (bumping the agent up to a full 17½% commission). At the very least any use of subsidiary agents requires consent in advance.
Any expenses incurred in connection with the photocopying of any manuscripts, proposals, or supplementary materials, the purchase of video tapes, bound books and galleys, or other materials necessary for the sale of the Work will be charged to your account. Such charges will not exceed $150 per quarter unless authorized by you.
Now, this is borderline ridiculous and seems to have emanated from the smoke-filled offices of old Jewish agents of the last century. Everybody’s got overhead.
All payments made by publishers, magazines or other purchasers or licensees of the Work will be made payable to [us] and appropriate payment will be forwarded to you after deduction of commissions.
Not quite. I insist on electronic payment within two business days of the agency’s receipt of monies. Since publishers can also pay electronically, what I am asking for, in effect, is near-instantaneous payment of what is in actual fact my own money.
This agreement may be terminated by you or by me, upon thirty (30) days’ written notice to the other party, provided, however, that
- I shall be entitled to carry out and/or complete negotiations for the sale of any Work with any publisher who is considering such Work as of the termination date, as well as any option Work[sic]contemplated by the publishing contract for the Work originally sold; and
- if I am successful in selling the Work to a publisher, I shall continue to receive the above‐specified commissions on all monies derived from the sale of such Work (and any optioned Work), including but not limited to advances, royalty earnings and subsidiary rights earnings, for the life of the copyright of the Work(s).
Again, not quite: The agent can continue to skim 15% for the term of the licence, not forever. (If I regain full publication rights, as I did for my first book, then sell the thing myself, as written I would have to pay the agent 15% of that latter income despite the agent’s having done exactly nothing.)
Notwithstanding the foregoing, with the exception of any option Work contemplated by the publishing contract for the Work whose sale was negotiated by me, I shall not have any rights whatsoever with respect to works by you that I have not presented for consideration to publishers on your behalf as of the date of any termination.
I failed, and still fail, to understand this clause, which means it has to be unfavourable. I took it out.
Upon the sale of your Work, we shall offer consultation on how you may make use of our partnership agreements with publicity firms, Web developers, digital managers, speaking bureaus, financial consultants, career coaches, and other organizations and individuals who may be of benefit to you.
I want no obligation, express or implied, to use somebody else’s friends for any of those purposes. In particular, as the best Web designers and developers in the world are my close personal friends and I know more about typography than half the hacks working in the field these days, the idea that I’d be stuck using somebody who happens to have a “partnership agreement” with an agent who’s already earning 15% off me is a non-starter.
You and I shall communicate on a semimonthly basis, if not more frequently, to discuss matters pertaining to the development and sale of your Work.
I can barely get this agent on the phone as it is, so no, a top-posted E-mail every two weeks isn’t gonna cut it.
Special note for people who manage to be even stupider than LiveJournallers
If you run a Tumblr, you probably fancy yourself an expert on publishing. You are probably also as dumb as a mule and/or are Liz Spiers. So I will clarify that this representation agreement does not apply to the only unpublished book project you know about. It applies to one such project you know nothing about.