Mar 022005

Agency contracts are (or should be) pretty straightforward. In fact many agents don’t use a contract at all but do a handshake deal and let the agency clause in the publishing contract govern the relationship. At the moment I am working sans contract because by and large I am working with people I know and like and who trust me, and I don’t presume that they should be beholden to me if they want to work with someone else on future books. This is a relationship business after all, and if I can’t sustain my relationships I should find another line of work.

When needed, I do a deal memo outlining the agent-client relationship. Here’s what it looks like: I charge a 15% commission on US sales, a 20% commission on foreign rights sales (where I may use a sub-agent), and in the event the client decides to terminate our relationship while I’m working on a particular project I ask for 60 days to finish up with whatever leads I have. Plus, I reserve the right to invoice clients for copying and/or postage fees on submissions. This is all fairly standard and, I believe, fair.

Someone just sent me a contract for an agency that will go nameless here, but I was amazed to see what some agents get away with. The agent asks for a $500 from his client on signing the author-agent agreement, and further stipulates that the entire agency commission for the advance is taken from the client’s first proceeds. So if you have a $20,000 advance and a $3000 signing payment, the agency would take the entire signing advance.

My advice? Never sign a contract with an agent that asks for expense money up front — there are plenty of legitimate agents who do charge for copying and postage — but spending hundreds of dollars up front for an agent who hasn’t even submitted your proposal is a very bad idea.

And maybe I’m wrong and the practice of taking the entire commission up front is more common than I believe, but if I were an author I would avoid signing with an agent who is paid from first proceeds.

As an agent I have a fiduciary responsibility to my client, and I have an interest in ensuring that my client is paid promptly, paid correctly, and represented in all matters pertaining to the book to the best of my ability. If a book should suddenly go south, an author needs an agent who likewise won’t get paid unless the problem is fixed.

7 Responses to “Agency contracts”

  1. Dave Taylor says:

    I agree completely, Matt. Agent representation should be “pay for performance” because you, as an author never really know if the agent can land you a fulfilling and worthwhile contract, and an agent can never really know whether an author can deliver printable prose at the end of the day.

    It’s a risk/reward equation. If I had an agent who wanted payment up front, I’d expect them to have a significantly lower percentage than the more traditional relationship.

  2. A $500 signing fee? This is beginning to sound an awful loot like a vanity press deal. Are you sure that this agency is legit?

  3. James says:

    I hear through the grapevine that you are worth 15% but any advice on agents that will lower their percentage to 10%?

    The copying and postage clause seems fishy as 99.9999% of all work acquiring a book agreement is done either via email or phone. I would say 100% in my own experience but others may have different than my own.

    Would also love to know if agents will help authors by running bookscans?

    http://blogs.ittoolbox.com/eai/leadership

  4. matt says:

    Yes, this is a legit agency with many books to its credit. It looks like the $500 fee is only for new clients and perhaps they waive it for established authors.

    What struck me most was the first proceeds language.

    This doesn’t mean that they’re dishonest or bad agents — their clients seem to like them — but I think it’s a structural issue that puts the agent’s and client’s interests at odds and that’s probably not a good idea.

    Another thing I should have mentioned: your agent should agree to pay you promptly. For me that means I try to get every check out within 24-48 hours max, but the AAR Canon actually allows for up to ten days. Waterside always gets its checks out within a day or two except when the big royalty periods hit and they have literally hundreds of statements and checks to process, so I can see where the ten-day max might be reasonable in certain instances.

  5. matt says:

    Hi James,

    I’ve worked on a 10% deal a few times: when authors have come to me to do revision contracts and I didn’t feel it was fair to charge 15%, and when authors have maybe initiated a discussion with a publisher and then decided they want an agent involved. That doesn’t call for 15% either.

    How I feel about charging 10% for new books is pretty much how you feel about earning a reduced royalty. If I have one client at 10% and the others at 15% , it’s not fair to my other clients, and it’s even a structural disincentive. Where do you think I will spend the bulk of my time?

    A better question might be “where does an agent earn his 15%?” In the tech book world this is a fair question as we’re in a relatively small industry and there are plenty of author listservs, lots of contract info that’s readily available, and easy access to acquisition editors.

    I earn my money in prospecting for titles the author might not have found on his or her own, managing schedules and publisher expectations to ensure that my author has very little down time between projects, working out conflicts in the editorial and production process, helping to find a co-author or contributor when we’re in a jam, and packaging new ideas for publishers. On this basis on some projects I’m probably overpaid and on others I am most certainly underpaid. This model works best when I am the author’s exclusive agent: that way I can manage schedules and problems all the more efficiently and I’m not working at cross purposes with an author. Of course, if this exclusive relationship doesn’t work out to both of our benefits either of us can pick up and go try another model.

    The 10% rate was most prevalent in the talent industry where state governments (California at least) capped talent agency commissions at 10%, and where they remain today. This is the rate film directors, screenwriters, and actors all pay. Note that most of these folks also end up paying a manager another 10%. The Hollywood agencies and managers work to find ways around the 10% limit when they bundle talent and “package” shows and take a packaging fee as well on the back end.

    In the literary world, the William Morris Agency, with talent industry roots, stayed at 10% for a long time but they recently moved their book commission to the more standard 15%. And Swifty Lazar, the famous book agent to the stars also took 10%. If I recall correctly, he even stopped taking commission after one million in author revenue. I don’t, however, expect that folks like Andrew Wylie will ever do the same. Many of the big agencies, Wylie’s included, make big income on author estates, another happy result of the various copyright extensions.

    Re postage and copying charges, most of the big agencies invoice their clients for these expenses, but you’re right, with many more email submissions it costs less these days. Unlike the tech book industry, where everyone takes submissions by email, it’s still hit and miss with the general trade and when you’re sending a 70 page proposal they most usually want it in hard copy and binder-clipped. If you send a dozen copies of a proposal that size by priority mail you’re talking about $70 in postage.

  6. James says:

    The two largest literary agents for computer book authors are Waterside and StudioB. Do you know of any objective comparison as to why one should go with one vs the other…

    http://duckdown.blogspot.com/

  7. matt says:

    Hi James,

    This comment never made it past my spam filter. I apologize for the delay. Since I’m in friendly but direct competion with both Waterside and StudioB I don’t really have any advice on this one.

    Both are reputable and established agencies, both employ well-regarded and competent agents, and both have large client lists with many of bestsellers to their credit. Often in choosing an agent it comes down to the personal relationship you forge with your agent, the degree of trust and success you have with your agent, and whether you feel your agent has you on their radar on a consistent basis. The biggest complaint about any larger agency is that some clients feel they get lost on the list, but with big agencies you also get the benefits of an established brain trust, and strong publisher relationships.

    Fortunately, due in fact to my long tenure at Waterside, I’m able to offer lots of experience all on my own now, but I would never have been able to do it without the help and guidance of my former colleagues.