Thursday, March 22, 2007

Contracting With An Agent

I didn't get home from the airport until almost 11 PM last night, and I'm moving r-e-a-l-l-y s-l-o-w this morning. I just finished unpacking and throwing all my laundry from the trip into the washing machine. Then I need to take the rest to the dry cleaners and pick up Tribble from the vet.

I just read a column of Miss Snark's for 3/21/07 here that I wanted to mention. A snarkling had written asking whether agents charge expenses. It reminded me of my experience with this.

It was December, 2005, and I had just been offered representa-tion by my wonderful, brilliant agent. I was incredibly excited. Then I got the contract and there was a clause indicating that I would be responsible for expenses incurred in selling my manuscript.

I had been reading everything I could on this business and had seen tons of warnings against paying an agent for expenses in marketing manuscripts. I panicked. Not knowing what else to do, I emailed Miss Snark and explained my dilemma.

Within the hour, the lovely MS had emailed me back, explaining that this was a totally legitimate clause in a contract.

Several important points she made to me:

1) The "expense clause" is always AFTER the fact. It doesn't kick in until the manuscript is sold, and the expenses come out of the proceeds of that sale. Crooked agents almost always want a check upfront before they've sold anything.

2) The author is never asked to write a check. The expenses are subtracted from the first check received from the publisher via the agent (You understand, don't you, that checks ALWAYS are sent from the publisher to the agent? The agent takes his/her cut and forwards the remainder to the writer).

3) The amount is nominal. Miss Snark says her expenses are limited to $300. That's in line with my agent's clause.

Miss Snark's kindly response allowed me to relax.

While I'm talking on this subject, let me mention a couple of other things about contracting with an agent.

You should always do research on your agent. Know the genres she represents, know the sales she's made, know her reputation in the writing world. You don't want to sign a legal document with a complete stranger.

Do your homework. EPIC--the Electronically Published Internet Connection--has both a sample contract here and "red flags" to avoid here. I downloaded both and used that advice in vetting my contract. I also took it a step further and asked my attorney to read the contract for me.

If there's something you either don't understand or don't agree with in your contract, for heaven's sake address it before you sign. My agent was very agreeable to talking over the clauses that my attorney had earmarked. In almost every case, my agent agreed that the language changes I wanted clarified the expectations, and we incorporated those changes into a revised contract.

Pay as much attention to how your relationship can end as to how it will commence. My agent was very clear on this, but in the time since, I've seen some scary contracts from other agents.

Understand that the agent must receive compensation for a book he shopped for you IF it sells--even after your relationship ends. That will mean a clause that says something to this effect: If you and your agent rip the sheets, he will receive his agent's fee (15%) for any book that sells as a part of his efforts. For instance, say he offered your book How to Retile a Bathroom to six publishers. If you and he part ways and then, four months later, Publisher A calls to say they want the book, the first agent is still entitled to receive his fee because he initiated the contact. This is not open-ended. Most contracts include a clause as to how long the period during which he will be credited for his efforts will last. Six months is pretty standard although I have seen contracts that say a year.

This is one of the big reasons why you need to have a list of the publishers to whom your agent shopped your manuscript. Make sure there's language in your contract about your agent providing you with a WRITTEN list of places to which your manuscript was submitted. It doesn't have to be formal; it can even be by email. You just need some evidence of which publishers have seen your work. Otherwise, it could get sticky if Agent 1 claims he solicited Publisher A on your behalf AFTER the fact.

A contract with a second agent must be very clear on expectations regarding Agent 1. Many agents' contracts are written to cover any manuscript sold during the period of the contract. If you don't have language in the second agent's contract that clarifies this to mean only any book sold by Agent 2, you could find yourself paying 15% to two agents for one book.

I need to run. If I think of other contract issues, I'll do another posting on this subject.

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