Wednesday, October 20, 2010

Firing Your Literary Agent


Ask a Lawyer:

What to do When Your Literary Agent Stops Getting Back to You
Q: I can't stand my agent. She doesn't do anything, I mean anything. How do I get out of this contract? I don't want her to get a penny of anything I make from this book!
A:  While you may be right, make sure your expectations are aligned with the realities of the literary marketplace. Is she working on the proposal?  Has the proposal gone out?  When did it go out?  Is it on multiple submission?  Is it under consideration anywhere?  

If you are unhappy, even if the agreement you signed says she has a year to place your book, she may agree to let you go – provided you’ve given her a fair chance to get it sold.  

Keep in mind that if your agent begins negotiating with a publisher before your agency agreement terminates, but the deal matures post-termination, your agent may have a valid claim to a commission.   Each literary agreement stands on its own, so your agreement needs to be reviewed by an attorney.  A well-drafted agency agreement (yes, agency agreements are negotiable) would have addressed this.  Does the agreement contain a "sunset clause".  This is a heavily negotiated clause that states if your agent doesn’t reel in a pending deal by X days after expiration or termination of your agreement, it’s no longer commissionable.  Does the agreement require your agent to to apprise you in writing where (and when) she sent the book proposal, who rejected it, and where it is still under consideration?  If not addressed in your contract, then the law will have to be your guide.  The "law" (as opposed what is in your contract) offers gap fillers.  If your contract is silent on an issue, the law (and lawyers) step in.  If you anticipate problems, many of those problems go away, including uncertainties concerning what is required of you and your agent or publisher.  Agents do contracts, and publishers have contracts departments, so don't be shy.  Contract changes are part of the process.   But, don't hire your cousin Vinny (unless he's a publishing attorney) to assist you.  You need someone who understands both the publishing business and the law.  

If you wish to leave your agent after she’s secured a publishing deal for you, it gets more complicated.  Before you fire your agent (or hire a new one), consult a publishing attorney.  Why?  If you don’t, you could wind up paying double commissions.   If you wish to leave your agent, but stay with your publisher, there may be landmines in your agency and publishing agreement.  Among those landmines are the next book, option and cross collateralization clauses.   Be particularly careful about the cross collateralization clause.  Some contracts state that  if your advance is unrecouped, your publisher can offset those monies from money earned on another one of the publisher's agreements.  If you wish to stay with your existing publisher, you don't want royalties payable on your next book, used to offset an unrecouped advance.  Your options?  Contact an attorney.  It's time to get creative.   

Just because you don't recall signing an agreement with your agent, doesn’t mean you didn't agree to her terms.   For example, most author-publisher contracts contain an agency clause.  To the surprise of many, it's not drafted by the publisher, but inserted in your contract at the request of the agent.   This clause appoints your agent as your direct deposit banker (i.e., fiscal conduit).  It authorizes the publisher to pay your advance and whatever other monies it may owe you, to your agent, who then deducts her commission it, and remits a check to you.  It may also give her a limited power of attorney to make business decisions on your behalf.  Is this trickery?  Let’s just call it industry practice. 

The Takeaway

Don’t sign what you don’t understand -- whether it’s an literary agency agreement, film option, or author-publisher contract.  Hire an industry savvy lawyer to translate your contracts.  He'll point out the double dips (e.g.,  watch the co-agent compensation clause) and overreaches (does the agreement contain a  "coupled with interest" clause?).   Every game needs a referee.  Even if you have an agent, you need a lawyer.  Hire one before you sign any copyright or literary contract.  As they say, an ounce of prevention is worth a pound of cure.          
You can follow Lloyd Jassin on Twitter at www.twitter.com/lloydjassin
Disclaimer: This article is of a general nature and is not intended as a legal advice.  It does not create an attorney-client relationship or any other expectation or representation. 
BIO
Lloyd Jassin is an attorney who focuses on publishing, entertainment and intellectual property law.  His professional career began in publishing, where he worked for Simon & Schuster, St. Martin's Press and Macmillan.  At S&S he was Director of Publicity of the Prentice Hall Reference Group. Before forming his firm, he was an IP associate with Cowan, Liebowitz & Latman. Prior, he worked in television syndication / legal affairs at Viacom International.   He is coauthor of The Copyright Permission and Libel Handbook. You can contact him at
jassin@copylaw.com, visit his blog at http://www.copylaw.org/.
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4 comments:

  1. What to do when one coauthor wants to remove one of three authors when the book is under contract and close to publication with all three authors on the contract?

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  2. Call a publishing attorney to discuss your options.

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  3. I want to get my non-fiction title updated and back in print. It was published 20 years ago and the publisher went belly up a few years later. The rights to the book have been reverted back to me. Do I have to keep the same agent, or can I go to a new one?

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  4. Get ready to roll your eyes up into your head. The answer is it depends. You need someone to look at your literary agency agreement, and, if you still have it, your publishing contract. Not major surgery. But, not off the shelf advice you seek.

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