Sunday, January 29, 2006

Victoria Strauss -- Breaking Up (It's Not Hard to Do)

Ann and I often hear from writers who've unwisely signed with a scammer or an incompetent, and want to know how to get out of the relationship. In many cases, I don't think that it'd be a big deal simply to walk away. Since the contract was offered under false pretenses (that the agent was capable of selling your manuscript), you could argue that it was never binding. Still, for caution's sake, it makes sense to formalize things.

(Obligatory disclaimer: nothing in this post should be construed as legal advice. I'm not a lawyer. What I'm offering here is a series of general suggestions based on experience and research.)

First, check the contract to see if there's a termination clause. If so, invoke it per the instructions in the contract. Once whatever notification period the contract requires is finished, you're free.

If there's no termination clause (and for future reference, NEVER, EVER sign an author-agent contract that doesn't allow you to terminate at will with adequate notice), send a registered letter (return receipt requested) to the agent's last known snail mail address (if the agent has an e-mail address, send an e-mail as well). State that you're terminating the contract as of 30 days from the date of the letter, and instruct the agent to immediately cease all efforts on your behalf, including but not limited to submissions to publishers. Keep a copy. Even if you don't get a response, this should be sufficient in most cases.

You're not done yet. Read your contract carefully to see what rights, if any, the agent claims after termination--such as a commission on any publishing deal the agent initiated or was negotiating at the time of termination, even if the contract is signed after termination. This isn't really something you need to worry about with a scam or incompetent agent--still, if it's in your contract, you need to be aware of it, just in case. Also, any agent will continue to receive commissions on a contract she brokered, for as long as the contract is in force (again, not really an issue with a bad agent, but something to remember for the reputable agent you wind up with the next time around).

You also need to find out exactly where your manuscript has gone. A new agent will want to know, because you can't usually resubmit a ms. to a publisher or imprint that has already rejected it, and your new agent won't want to replicate others' efforts (unfortunately, if another agent's submissions have tapped out the market for your work, a new agent may find you less attractive as a client--this is the real disservice that marginal agents do their clients, but that's a matter for another post). Be prepared for resistance. Questionable agents often clam up when you ask leading questions of this sort, since the answers don't reflect well on them.

There are also some circumstances in which you don't need to know where your ms. has gone. If you've wound up with a scammer (as opposed to someone who's just incompetent or marginal) the odds are high that IF your submission was sent out (scammers often don't bother to submit), and IF the address was correct (scammers who do submit often get this kind of stuff wrong), no one looked at it because a) the publisher was totally inappropriate, or b) the people at the publisher were familiar with your agent, and not in a good way. (Writer Beware may be able to help you determine what level of scammer your agent is.)

And now for something completely different...

One of the great things about blogging is the chance to get interactive with readers. So ask us questions! Do you want to know if an agent's business practices are kosher? Are you concerned that a publisher isn't legit? Have you run into something that makes you uneasy? Are you unsure about some aspect of querying and submitting? Post questions in the comments section of this or any of our posts, and we'll answer them here.

7 comments:

Anonymous said...

First, thanks for all your work, and for this blog--you may not get many comments, but I check this every day to see if you've written something new.

And since you asked for questions: I'm considering querying an agent. In AgentQuery, it lists her as representing books similar to my recently finished project, but it also says that more info is needed, and I don't find much information about her elsewhere. The P&E agent list calls her "recommended," but doesn't give her a $ for sales. How does an agent get a recommendation without sales?

Dave Kuzminski said...

anonymous, send me an email with the name of that one.

Victoria Strauss said...

I can't speak for Dave, but I can think of a couple of reasons why an agent might be recommended but show no sales--she might be an experienced editor who has just gone into business as an agent but hasn't started selling yet (in which case she'd be getting the "recommended" for her indstry background)or she previously worked with another reputable agency but has yet to establish a track record with her new agency (in which case she'd be "recommended" because of her previous track record).

Audiate said...

Victoria, thanks for sharing this info about termination clauses.

Can you tell us what other things should be covered by an author-agent contract?

Jocasta said...

Just want to add a heartful word of thanks to Victoria and the Writer Beware folks, as I was about to sign a contract with the infamous New York Literary Agency yesterday... but I was thankfully wise enough to check them out first!! Now I just have to get over the disappointment of not being the next literary genius who got an agent in two weeks on her first try at sending her work out :-) Be sure I'll do my best at spreading out the word on them!!!!

Anonymous said...

There is so much to learn and your posts are greatly appreciated. I feel safe with your advice.

I am hoping to know more about what is customary after agent termination in regards to agent rights (to commissions, etc).

If I terminate an agent, is it reasonable that I pay them commission on accounts they may have previously contacted but didn't secure when perhaps my new agent did secure the sell with her efforts even though it was 6 months later, for example? If so, what is the time frame that this aggreement no longer applies.

I just need some help understanding what happens after termination, what rights I have, and what the agent is reasonalbly entitled to.

Victoria Strauss said...

Anonymous, it depends on the contract. But generally speaking, agents do expect to get a commission on any sale that results from a contact or submission they made for you, even if the sale happens after your relationship terminates, and the actual negotiation is done by a new agent.

Sometimes there will be a time frame (for instance, any sales resulting within six months or a year), but often not.

Note that while it's reasonable for an agent to claim commission on sales that result from actual contacts made by the agent, it is NOT reasonable to claim commission on the sale of successor works, if those sales happen after the author has left the agent and the agent had nothing to do with those sales. I've also seen contracts where the agent claimed commission on any book sold to the same publisher, even if the sale was made by a different agent. That's not reasonable either.