Help Please! Clause in Agency Agreement

[Mighty_Joe]

Dear Litopians,

Greetings from a former Litopian! I was active here for a while around a decade ago, when I was still a teenager.

My pen is poised to sign an agreement with a new agency. There's this one clause I'm uncertain about. Wondering where I could turn for help, I remembered this here Cafe! Because I want to get the contract off asap, please forgive me for dropping in, at first, for such a selfish reason (Already got sidetracked into reading posts...)

The clause of doom:
"For the avoidance of doubt, we shall be entitled to our full commission on contracts negotiated by us even in the event of non-delivery of material by you or of the material proving to be unacceptable to the publishing licensees."

The agents claim the agreement is devised by the Association of Authors' Agents, but I haven't encountered one of these before. Sounds risky to me.

Thanks for any advice!

 

[Alistair Roberts]

I'm not an expert, but major bells ring on this one. An agent ONLY gets a percentage of any payment made by the publisher to you via the Agent. Payments are usually made by the publisher until they get the material anyone, so it probably isn't a problem. Hence in my opinion that clause is NOT necessary and you should ask for it to be deleted. There is a thing called negotiation, but if they refuse to remove it, I'd be stepping back to be honest. As I said, I'm no expert, but I walked away from a contract simply because the publisher wasn't going to pay for 18 months....

 

[Mighty_Joe]

Thanks, Alistair.

Funny - as I continued to investigoogle, I found the following by our very own Brian Clegg at http://accrispin.blogspot.ch/2008/10/victoria-strauss-writers-myths-giving.html

Brian Clegg said...
(...) I have had personal experience of one dirty trick from a publisher on advances.
In this case they paid the advance on signing, and accepted the manuscript, paying the advance on acceptance.
However, somewhat later in the production process, another publisher produced a book out of the blue that was on a similar subject.
The publisher decided not to publish my book, and my agent rightly said 'okay, but as you've accepted the manuscript, you still need to pay the advance on publication, it's in the contract.'
The publisher said 'We know we should, but we aren't going to. Sue us.'
As it was only a small amount it wasn't worth going legal - but it does demonstrate that publishers can play some dirty games with advances.

 

[AgentPete]

You’ve pressed a hot button for me here!

Before I begin, why aren’t you around more, Mighty Joe? The new Litopia is still in its infancy, and needs good chaps and chapesses.

OK, to return to the subject.

Over the months and years ahead, the topic of agency clauses is set to explode. As the beneficiary of them... I can totally see the point, and no wonder the Association of Authors' Agents is happy to stand behind them (an organisation I’ve recently departed from, btw). They are in business to represent their members’ interests, so no wonder they like ‘em.

However, before becoming an agent, I was a writer, who hired and fired no fewer than three different agents before deciding I could, in fact, do their job better myself. I know that sounds arrogant, but let it pass for the moment.

As I’ve implied, this topic is a major can of worms, so let’s just restrict ourselves just to the clause you’ve highlighted.

First, it’s not at all unusual - in fact, the clause is reasonably standard. Do not assume that the mob you’re dealing with are necessarily shysters because of that clause. You’ll find something similar to that in most lit agent agreements.

Will you be able to get it amended / removed? Doubt it.

What it means is...

• If the publisher tries to get its advance back from you, the agent still keeps their commission. This isn’t totally unfair, really. After all, they’ve still done their side of the bargain. If you let the publisher down, then that’s not their fault.

• If you don’t deliver the ms, then they can come after you for the balance of their commission. To be honest, I wouldn’t be overly concerned by this. Are they really going to sue you for it?

What concerns me rather more is the issue of what is “acceptable” to the publisher. It’s very important that the agent does its best to ensure you are not beholden to the capricious whim of a publisher as far as “acceptance” is concerned. I try to specify the terms of acceptance as precisely as I can, and also to lay out a framework for “rejection” together with rigorous timeline. If they have seen some material, e.g. sample chapters, then providing the rest of the ms is of comparable quality, there is a presumption of acceptance.

Gotta rush to a meeting, hope this is of some use.

 

[Carol Rose]

Hi there, Mighty Joe! Welcome back!

 

[Jennifer Stone]

Welcome Joe, sage counsel from Agent Pete, a man who knows his onions, so to speak.

 

[Mighty_Joe]

Thank you very much, Peter. Very useful. That's a relief, sort of... Just signed the agreement.

Now, as it's all the more important to get gritty with publishers' contracts, how do you "specify the terms of acceptance as precisely as possible and lay out a framework for “rejection” together with rigorous timeline"? And, out of interest, why have you left AAA?

Thanks, Jennifer. And Peter, I'll try and stick around

 

[AgentPete]

First point... that’s really up to the agent to negotiate on your behalf (i.e. that’s partly what you’re paying them for). Once you have some publishing interest, you should raise the issue of contractual terms before the negotiating starts – ask the agent what they’ll be looking for, whose basic contract they’ll be using (e.g. I like to use my own rather than try to adapt a publisher’s boilerplate) etc. This is the moment to talk about defining “acceptance” etc.

Why did I leave the AAA? I did actually mull this move over in public here on Litopia with a few people. I think membership used to confer some degree of respectability, in a profession that used to be notoriously conservative, so it gave a bit of status, especially for a new agent. IMHO, that is no longer true.

I felt very little in common with most of the membership, many of whom fell into the business as casualties from publishing. I wish them luck, but I suspect many of them are not aware of what’s happening to their business...

 

[tabby3]

Welcome back!