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Friday, April 30, 2010

INDUSTRY: Author-Agent Contract

Once you get an offer of representation from an agent, some will ask you to sign an author-agent contract. Some don't. It all depends on the particular agency. When I signed with my (now ex) agent she issued one as a part of her operating procedure - keep in mind my agent was from a small agency and so this contract my differ minutely from a larger agency one.

Following common sense, I sought legal advice on the document (I arranged for a phone appointment with a legal consultant from the Australia Society of Authors) and she went through each clause and explained in layman's terms what each meant and what I was obligated to do and what the agent was obligated to do. She'd also researched the agent and her background to assure me I wasn't signing with a con-artist. I made notes during the phone conversation and she emailed me the comments she'd made when she examined the contract so I had a hard copy.

NEVER SIGN ANYTHING UNTIL YOU UNDERSTAND WHAT YOU'RE SIGNING!!! I can't stress that enough. If you don't know, find someone who does.

According to the ASA legal consultant the author-agent contract I received was a pretty standard one. Here's what it looked like...





Dear Kylie:

As requested, I shall be pleased to serve as your literary agent. This letter sets forth the terms and conditions of this representation, and is to be considered our Author-Agent Contract. Please review, and if you accept these terms sign and date two copies, and return for countersignature.

1.    For the term of this Agreement, NAME (the “Author”) located at ADDRESS retains AGENT of AGENCY NAME (the “Agent”), located at AGENT'S ADDRESS:

A)    To represent the Author for the sale of (1) all book length fiction written or to be written, and (2) any other writing that the Author and the Agent may agree upon.
B)    To negotiate sales for the represented works in (1) the United States (“Domestic Sales”), (2) non-domestic markets (“Foreign Sales”), and (3) derivative or secondary rights in the represented works including but not limited to film, TV, recording, or other dramatic media, anywhere in the world (“Subsidiary Sales”).
C)    To receive payments and royalties from the represented sales, as per an agency clause that will be included in any contract with the publisher of such works.

2.    The Author agrees that during the term of this Agreement, the Author will not retain another literary agent to represent the Author’s work unless the Agent, (AGENT) specifically consents to this arrangement.  As to Subsidiary and Foreign Rights, the Agent shall engage all subsidiary or co-agents which the Agent believes will best represent the Author in selling Subsidiary and Foreign Rights, unless the Author and the Agent agree in writing to a different arrangement.

3.    The Agent will use best efforts to promote the Author’s work, in order to sell the represented works. The Agent shall negotiate the terms of any contract that is offered, but the Author will have the right to reject any contract if the terms are not acceptable. A sale will not be binding unless approved by the Author in a signed contract.

4.    The Agent shall be entitled to a fifteen percent (15%) commission on Domestic Sales, a fifteen percent (15%) commission (which includes seven and one-half percent (7.5%) for co-agents) on Subsidiary Sales within the United States, and twenty percent (20%) (which includes 10% for co-agents) for Foreign Sales and Subsidiary Sales obtained outside the United States.

5.    The Agent will pay for all expenses that arise in selling the Author’s work except in the following situations:

A) If it is necessary to produce multiple copies of the Author’s unpublished work, including bound manuscripts that are greater than fifty (50) pages the Author will be charged for making the copies, at the time the costs are incurred.   
B) The costs of mailing your book or manuscript to foreign agents, editors, or subsidiary agents will be deducted from your earnings, if that work or any subsidiary rights, including film rights to the work are sold.
C) The costs of mailing your book or manuscript to domestic agents, editors, or subsidiary agents will be deducted from your earnings, if that work or any subsidiary rights, including film rights to the work are sold.
D) All mailings, both foreign and domestic, will be made using the lowest applicable rates allowed by postal regulations.
E) If a book or manuscript needs to be delivered via next day service, the Agent will request written permission from the Author prior to mailing the work.

6.    The Agent shall make all payments due to the Author within thirty (30) days of receipt of any fees covered by this Agreement. Such funds will not be intermingled with funds belonging to the Agent.

7.    The Agent shall send copies of statements of account received by the Agent to the Author when rendered.  If requested, the Agent shall also provide the Author with an annual accounting showing all income for the period, any fees paid, the dates of payment and the amounts on which the Agent’s commission was calculated, and any sums due less those amounts already paid.  The Agent will provide the author with a 1099 form. On the giving of reasonable notice, the Author may request an examination or independent audit of the Agent’s books and records by a certified public accountant, once per calendar year. This examination or audit will be at the Author’s expense.

8.    This Agreement may be terminated by either party by giving thirty (30) days written notice to the other party. If a project is under consideration by editors at the time of termination, the Agent will still earn the commission on that project, if an offer is made by one of those editors within one calendar year of termination.  A project is defined as under consideration if it has been formally pitched to an editor either through e-mail or a phone conversation, and the editor has the manuscript or is waiting for the manuscript.

9.    This Agreement shall not be assigned by either of the parties.  It shall be binding on and inure to the benefit of the successors, legal representatives, or heirs of the Author and Agent.

10.    Any controversy, claim or dispute between the parties hereto,  that cannot be resolved amicably will be taken to Arbitration subject to the rules of the American Arbitration Association, and the differences resolved under the laws of the State of New Jersey.

11.    All Notices shall be given to the Author and Agent at their respective addresses set forth above.

12.    All changes to the Agreement must be written.  This Agreement represents the entire understanding of the parties.

13.    If any part of this agreement shall be held unenforceable, the rest of the agreement will remain in full force and effect.


_____________________________            _____________________________
AGENT SIGNATURE                                                  AUTHOR SIGNATURE

_____________________________            _____________________________
Date                                                                                Date

Social Security Number (OF AUTHOR)

One of the most important clauses to ensure you have in there is Point 8. It gives you both an out if things don't work out.

Just remember, if you don't understand something in any contract, consult someone who does and get them to explain it to you.

I hope this has been a useful topic to share with you.

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