Wednesday, April 27, 2011

The Interminable Agency Clause

Posted by Victoria Strauss for Writer Beware

I'm down to the wire on book revisions (hope to have them done and dusted by Friday afternoon), so this week, I'm re-purposing (with some updating) a blog post from 2007 on the interminable agency clause in author-agent agreements. I'm not just doing this to spare myself a bit of time. I'm seeing such clauses in agents' contracts more frequently these days, and they are definitely something for writers to watch out for.

An "interminable agency clause" (sometimes called an "interminable rights clause" or a "perpetual agency clause") is language inserted into an author-agency agreement whereby the agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates, but for the life of copyright. In other words, once your agent sells your book, the agency has the right to represent that book for as long as the book is in copyright (currently, in the USA, Australia, and most of Europe, your life plus 70 years)--even after the original publishing contract has expired, and even if your original agent leaves the agency.

Why is this a problem? Suppose you decide to move to a new agency, as often happens. If your old agency's agreement includes an interminable agency clause, you may not be able to bring with you any of the books your old agency sold for you, even if the contracts covering those books have long expired and rights reverted to you. Those rights, which can sometimes be profitably re-sold (especially if you score a success with a new work) are one of the things that can make you attractive to a new agent. Beyond that, it may not be a good thing to leave your rights sitting with an agency with which you no longer see eye to eye.

Or suppose your old agency doesn't have a problem with you taking your reverted books elsewhere, but because of an interminable agency clause, claims the right to collect commissions on any future sales of work it originally sold for you--even if it has nothing to do with those sales. Why should an agency be paid for a sale it didn't make? Obviously an agency's right to commissions should extend over the life of any contract it brokers, but once that contract terminates, so should its right to commissions, unless it makes a new sale.

Or suppose, as is increasingly popular these days, you wanted to bring your out-of-print, reverted backlist back into circulation via POD or electronic self-publishing. With an interminable agency clause, might your agency feel entitled to a share of your income? With some electronically self-published authors realizing substantial amounts of cash from their books, this is not an impossible scenario.

Many professional writers' groups have warned against interminable agency clauses, including the Authors Guild, SFWA, RWA, SCBWI, and Novelists Inc. According to the Authors Guild, "the minimal prospective benefit the clause provides is far outweighed by the inconvenience it causes authors and their estates and by the responsibilities that accompany the clause." In addition to the concerns identified above, the Authors Guild points out that your agency is unlikely to be around for the life of copyright, that changes in personnel and ownership may have an impact on skill and reputability, and that interminable representation can greatly complicate not just the task of literary executors, but also of the agency, which would need to track and enforce interminable rights.

The Authors Guild warning was issued in 2004. But the problem isn't going away. I continue to see author-agency agreements with interminable agency language--it's actually my impression that I'm seeing more of them of late. Clearly, authors need to be on their guard. Trouble is, the language can be subtle enough that it's easy to overlook or misunderstand. Many of the authors who have sent me contracts were aware of the warnings against interminable agency language, but still failed to spot it.

Below are some examples of the different ways in which agencies frame interminable agency clauses, with the relevant phrases bolded. All are taken from actual agency contracts.

** "The Agency and its right to receive commissions hereunder shall be co-extensive with the life of the copyright of the Work and any renewals thereof."

** "At time of termination of Agreement, all Work(s) sold by Agent shall remain with Agent and Agent shall remain Agent of Record in perpetuity unless otherwise agreed to by both Parties."

** "In the event that any Rights are sold, licensed, or otherwise disposed of by [agency], Licensor agrees that [agency] shall be irrevocably designated the agent for those Rights to the Work for perpetuity."

** "The Agency is entitled to the above-mentioned percentages as specified...for the legal life of the Work on agreements pertaining to the Work."

** "Author grants to agents/representatives and assigns the sole and exclusive right of selling in book form the above work in the United States of America and its Dependencies and anywhere in the world during the full terms of copyright and any renewals thereof."

** "It is understood that if rights to the Work have been sold during the term of this Agreement, Agent's interest in the Work is irrevocable...In recognition thereof, and in such case, Author hereby acknowledges and agrees that, regardless of when made or by whom, any and all contracts or agreements...regarding the Work are covered by the terms of this agreement; [and] agrees to arrange for all such contracts and agreements, regardless of when made or by whom, to name Agent as Author's agent of record."

What should you do if you encounter this kind of language? Call it to the agent's attention, and attempt to negotiate. I've heard from a number of writers who were able to strike interminable agency language from author-agent agreements simply by asking. 

More specifically, here's what the Authors Guild recommends:

The best approach is for agents to simply drop the clause. Agents who are determined to retain a contractual right to represent an out-of-print work could adopt a clause such as the one that follows:

"On termination of this [publishing] Agreement, Agent will continue to have the right to represent the Work and collect a commission for the placement of the Work provided that (1) Agent places the Work within 6 months of the termination of this Agreement and (2) Agent sought a reversion of rights on Author's behalf within 6 months of the time the Work was out of print as defined in this Agreement." 

What if the agent won't negotiate? Should an interminable agency clause be a deal-breaker? That has to be up to the individual writer. I've heard from writers who've accepted contracts with interminable agency clauses, and from writers who made the painful decision to pass on an offer of representation because of such clauses, and many (though not all) had good, solid reasons for their choice. Either way, it's important to make sure you understand the language of any contract you're signing, and that you are aware of the contract's implications--both in the present and for the future.

14 comments:

Kay Theodoratus said...

Have fun revising.

Great reminder.

Lucy said...

I believe Kristin Nelson blogged about this recently as well, but if certainly bears repeating, especially with the examples you've provided. Thank you for this timely post!

Karlene Blakemore-Mowle said...

I'm so confused about whether to take the plunge and sign on with an agent or not, and this just makes it harder! Considering when they list all the reasons you need an agent, it's to break any uncomfortable tension between the author and the publisher, including negotiating contracts!who's going to be there to distance any hard feelings over negotiating these clauses they put into their contracts?! Thank you for the post, I had no idea about this.

Victoria Strauss said...

Karlene, I don't think I made it clear that interminable agency clauses are not terribly common, for which I apologize. There do seem to be more of them about, but overall, it's quite possible you'll never encounter one.

I think that if you want to sell fiction to a major publisher, you really must have an agent. If you don't want to go the agent route, though, there are alternatives. If you want to discuss this more, please feel free to drop me a line--beware [at] sfwa.org.

Joe Vasicek said...

For me, it's definitely a deal breaker. Another deal breaker would be if the agency doesn't want to have publishers split payments and send my royalty checks and statements directly to me.

Thanks for bringing attention to this disturbing trend.

Joy D. Fanning said...

I posted this blog as a link on my twitter. This is important stuff for writers to know so thanks for bringing it to your attention.

Claude Forthomme said...

I've re-tweeted this: I believe it's terribly important to be aware that there are agents who do this - even if only a few.

Thanks for the good advice!

Dennis Latham said...

My first publisher had such a clause in their contract. I had it removed. I've had two agents since and never saw such a clause again, but now I have no agent and I would not sign with one who tried to steal rights.

Scooter Carlyle said...

Victoria, does Writer Beware or Preditors and Editors ever make note of agents who try to use this clause? I'm curious.

Janus said...

This is one of the reasons why I would not want to have an agent. Seriously, if I have to deal with crap like this, I would rather remain unpublished.

Seireina said...

Shouldn't everything be up to the writer? How can agencies be such monsters?

Anonymous said...

I know a scam agent, and her Name is MISS SNARK. She has no sales to her name and yet she is still being touted as legit by Writers Digest.

LindsayWrites said...

Can we send you a sample contract to check and see if it is in there?? This confuses me!

Victoria Strauss said...

LindsayWrites--yes, you can send me a contract and I'll take a look (bear in mind, I'm not a lawyer, and can't offer legal advice). My email addy is beware [at] sfwa.org.