Interminable Agency Clause

By Patricia Potter

Appeared in the April 2004 RWR

I have grown increasingly concerned about the actions of some literary agencies who are trying to tie up their clients for the life of the copyright of the properties they represent.

A little history . . .

The prevailing practice in the past has been for authors to assign rights in their publisher/author contracts to their agent for the life of the publisher/author contract. In other words, as long as the publisher with whom the agent negotiated the contract kept the book in print, the agent would receive a commission on advances and royalties.

This approach makes sense. The agent negotiated the contract and should receive the fruit of his or her efforts.

In the past, if the author’s association with the agent that negotiated a contract ended, then if the publisher reverted rights of the properties in the negotiated contract back to the author, all rights would return to the author. The author could enter into an arrangement with another agent to resell the returned properties, or to sell foreign rights, or the author could resell the book on his or her own.

Now a few agencies are trying to change the rules. They are requiring their authors to sign contracts that give the agency (not necessarily the individual agent selected by the author) representation rights for the length of the copyright (which is the life of the author plus seventy years) even if the agency does nothing to effect a new sale.

If the author has left the agent and even if the parting of ways between agency and author has not been amicable, which sometimes happens, the author will still be obligated to pay that agency a commission on any transactions involving that property for her or his lifetime and the heirs for another seventy years. Even if the parting is amicable, there is no logical reason after leaving that agency to continue paying a commission once the publishing contract negotiated by the agency is no longer valid.

Authors are now discovering that this clause is being inserted into some publisher/author contracts (it’s called the agency clause) without agents telling the authors about the ramifications or even informing the authors there has been a change in the usual agency clause. A few other agencies are now requiring the authors they represent to sign a new agency contract that gives them this right to represent properties over the life of the copyright (the life of the author plus seventy years) rather than the life of the agreement the agency negotiated.

RWA cannot tell authors what to do, or involve itself in negotiations between agent and author. Members have to make their own decisions as to their own careers.

We feel strongly, however, that this clause represents a fundamental change in the traditional relationship between agencies and authors. This opinion is shared by many other writer groups.

The creative work of an author belongs to the author. It does not belong, even in part, to an agency. A literary agency should certainly receive a fair return for its efforts. It should not, in my opinion, obligate you, your children and your grandchildren to pay a substantial commission to those who do nothing to earn it.

One example of this problem: An author leaves an agency that requires this clause and goes to another agency. There is no longer a working relationship between the author and the first agency. The second agency manages to sell to a publisher a book out of print for five or six years and whose rights have reverted back to the author. The author is obligated to pay full commissions to both agencies even though only one did the work and the agent who had originally represented you might be long gone from the first agency. And this is not unusual during a course of a long career. Authors leave agencies, and agents leave agencies. Under the current form of agency clause that is being inserted into publisher-author agreements, and new clauses in agency contracts that authors are being asked to sign, an author would be obligated for the duration of her life and seventy years to that agency even where there is no longer a relationship.

This clause highlights just how important it is to read your contracts, both with the publisher and with your agency, very carefully. You might even wish to have a literary attorney take a look at them. No one can look after your interests better than you yourself. Do not expect your agent or publisher to put your interests above their own.

RWA has already taken steps to better inform our membership about contract clauses, whether placed there by agents or by publishers. PAN has a committee gathering information on troubling clauses in both publisher and agency contracts and will, of course, be sharing that information with other members.

We also have a new Agents Relations Committee to provide our members with more information about agencies. We will keep you posted.

In the meantime, I wanted to alert you to this troubling clause. If you are asked to sign such a contract, you must make your own decision about whether or not it is acceptable to you. RWA cannot advise you as to what you should do. We only want to make you aware of the clause and its ramifications.