Hiring a Literary Agent
April 14, 2011 By Schwell Wimpfheimer & Associates LLP
Here are some things to think about when you are hiring a literary agent to try and sell your manuscript to book publishers.
1. Is it exclusive?
The agent is going to want the exclusive right to shop your manuscript for a certain period of time. If, for some reason, you feel that there are prospective buyers that your agent can’t reach, or that you or someone other than the agent has a chance to make a deal that the agent can’t make, you can either make an exception in your contract for that particular situation, or you can agree to let the agent earn a commission even if someone else makes the sale during the period of exclusivity.
2. How long does the deal last?
The agent is going to want the longest possible amount of time to make the sale. You should give the agent a reasonable amount of time, but not too long. One year is plenty of time and in many cases six months is enough time for the agent to be able to either make a deal or not.
3. What happens when the deal ends?
This is often the most contentious point. Let’s say you have a one year deal with your agent and when the first anniversary arrives and the deal expires your agent just happens to be in the middle of a full blown negotiation with a publisher but no formal publishing agreement has yet been signed. Does the agent get the commission if the deal is signed a month later? A year later? The typical agency agreement will say something like “any deal that was in progress as of the end of the term that ends up getting signed within 6 months thereafter is commissionable by the agency.” The problem is figuring out whether the agent deserves to get credit for the deal and how to prove that the deal was far enough along for the agent to deserve to get paid. I have special language that I try to include in all agency deals that obligates the agency to notify you whenever it makes a contact that it believes might lead to a deal (in real time) and obligates the agency to summarize all of its contacts and their current status within 5 days after the deal ends so that both sides know exactly which deals might still earn the agent a commission. It is fair for the agency to ask for language saying that you will act in good faith with respect to any deal that happens to be percolating when your agency agreement expires (in other words, you won’t purposely delay signing until the day after your agent no longer is eligible to earn the fee).
4. How much authority does your agent have?
Agents want the freedom to be able to strike quickly, but I do not recommend that you give your agent a power of attorney to sign anything on your behalf. In fact, I tend to take the more conservative approach and include language specifically stating that the agent does NOT have the right to sign anything on your behalf. You should have an opportunity to review anything that would be legally binding on you and it should not become binding on you unless you sign it yourself.
5. What rights are you allowing your agent to sell?
Once upon a time, book deals were fairly easy. You sold the right to publish a hard back book, and maybe a soft cover edition, and perhaps serial rights in a magazine, and a Braille edition. These days, book publishers want to be the gatekeeper to all media that develops out of a published book. Audio books. Digital downloads of books. Television shows or films based on the book. First time authors who have little negotiating leverage often end up giving away what are called “ancillary rights” for less than they should. One possible approach is to limit what your agent is allowed to offer to the publishers in the first place. Make a deal with your agent whereby your agent can only sell the book rights but not the film rights. Again, for first time authors this is often not a choice because the agent won’t want to be limited in this way. But it is something worth thinking about.
6. Who pays expenses?
Your agent is going to incur costs in an effort to sell your manuscript. Photocopies, couriers, phone calls, etc… Be careful to limit the amount of expenses the agent can incur on your behalf without your prior approval if you responsible for reimbursement.
7. What is a fair commission?
Between 10% and 15% of what the publisher pays you for standard publication rights in your manuscript is a fair amount for the agent to receive. Remember that this is for the life of the publishing agreement unless you negotiate otherwise. Add another 5% for foreign territories. Subtract 5% for film and other ancillary rights.
ABOUT THE AUTHOR: Tuvyah (Terry) Aronoff
Tuvyah (Terry) Aronoff chairs the Corporate Practice Group at Schwell Wimpfheimer & Associates and specializes in Entertainment law. He has over 25 years of experience representing public and private companies in both traditional and innovative markets, as well as entertainment clients and individual performing artists.
Copyright Schwell Wimpfheimer & Associates LLP
More information about Schwell Wimpfheimer & Associates LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
The agent is going to want the exclusive right to shop your manuscript for a certain period of time. If, for some reason, you feel that there are prospective buyers that your agent can’t reach, or that you or someone other than the agent has a chance to make a deal that the agent can’t make, you can either make an exception in your contract for that particular situation, or you can agree to let the agent earn a commission even if someone else makes the sale during the period of exclusivity.
2. How long does the deal last?
The agent is going to want the longest possible amount of time to make the sale. You should give the agent a reasonable amount of time, but not too long. One year is plenty of time and in many cases six months is enough time for the agent to be able to either make a deal or not.
3. What happens when the deal ends?
This is often the most contentious point. Let’s say you have a one year deal with your agent and when the first anniversary arrives and the deal expires your agent just happens to be in the middle of a full blown negotiation with a publisher but no formal publishing agreement has yet been signed. Does the agent get the commission if the deal is signed a month later? A year later? The typical agency agreement will say something like “any deal that was in progress as of the end of the term that ends up getting signed within 6 months thereafter is commissionable by the agency.” The problem is figuring out whether the agent deserves to get credit for the deal and how to prove that the deal was far enough along for the agent to deserve to get paid. I have special language that I try to include in all agency deals that obligates the agency to notify you whenever it makes a contact that it believes might lead to a deal (in real time) and obligates the agency to summarize all of its contacts and their current status within 5 days after the deal ends so that both sides know exactly which deals might still earn the agent a commission. It is fair for the agency to ask for language saying that you will act in good faith with respect to any deal that happens to be percolating when your agency agreement expires (in other words, you won’t purposely delay signing until the day after your agent no longer is eligible to earn the fee).
4. How much authority does your agent have?
Agents want the freedom to be able to strike quickly, but I do not recommend that you give your agent a power of attorney to sign anything on your behalf. In fact, I tend to take the more conservative approach and include language specifically stating that the agent does NOT have the right to sign anything on your behalf. You should have an opportunity to review anything that would be legally binding on you and it should not become binding on you unless you sign it yourself.
5. What rights are you allowing your agent to sell?
Once upon a time, book deals were fairly easy. You sold the right to publish a hard back book, and maybe a soft cover edition, and perhaps serial rights in a magazine, and a Braille edition. These days, book publishers want to be the gatekeeper to all media that develops out of a published book. Audio books. Digital downloads of books. Television shows or films based on the book. First time authors who have little negotiating leverage often end up giving away what are called “ancillary rights” for less than they should. One possible approach is to limit what your agent is allowed to offer to the publishers in the first place. Make a deal with your agent whereby your agent can only sell the book rights but not the film rights. Again, for first time authors this is often not a choice because the agent won’t want to be limited in this way. But it is something worth thinking about.
6. Who pays expenses?
Your agent is going to incur costs in an effort to sell your manuscript. Photocopies, couriers, phone calls, etc… Be careful to limit the amount of expenses the agent can incur on your behalf without your prior approval if you responsible for reimbursement.
7. What is a fair commission?
Between 10% and 15% of what the publisher pays you for standard publication rights in your manuscript is a fair amount for the agent to receive. Remember that this is for the life of the publishing agreement unless you negotiate otherwise. Add another 5% for foreign territories. Subtract 5% for film and other ancillary rights.
ABOUT THE AUTHOR: Tuvyah (Terry) Aronoff
Tuvyah (Terry) Aronoff chairs the Corporate Practice Group at Schwell Wimpfheimer & Associates and specializes in Entertainment law. He has over 25 years of experience representing public and private companies in both traditional and innovative markets, as well as entertainment clients and individual performing artists.
Copyright Schwell Wimpfheimer & Associates LLP
More information about Schwell Wimpfheimer & Associates LLP
View all articles published by Schwell Wimpfheimer & Associates LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
