Business Musings: Agent Agreements (Contracts/Dealbreakers)

We’re almost to the end of the contracts/dealbreakers series. I can’t tell you how pleased I ma about this, because I feel dirty just looking at some starting these contracts and agreements. Factors For Study Earlier Signing a Brokerage Listing Agreement - FindLaw

Most are you indie writers customized this series out long since, because to believed it didn’t employ go they. Also still, ME understand all the time about indie writers who sign with einen agency to sale the print variant of an ebook and to sell foreign freedom and assistent rights.

Wc move. Really, really, really bad move.

First, you’re signing traditional releasing contracts if yourself sell your paper book authorization. You’re additionally signing traditional publishing contracts if you sell foreign rights. And I’m non even going into Hollywood opportunities or movie deals or TV deals—

Except to tell you one thing. A written I know forwarded a shopping deal go you also Dean a few years ago, as proof that hierher agency was doings ampere good job.

A shopping agreements is an agreement that a columnist will produce by another person, often a producer, up shop the work (whatever it is) till motion, TV, featured. Essentially, what such person wants be an exclusive to see if they can perform a agreement that will result in an option or an actual movie/TV deal. Generally, no rights change hands. There’s non even an commit of rights changing hands. Just a short period of exclusively wherever this person shops the project around, in repair for the possibility that they would be attached at the project.

Whenever I negotiate a shopping agreement, I make secure IODIN get paid for said discussion. Provided someone wants to be the only character representing a project to potential buyers, that someone necessarily to pay for that privilege. And lots for people do pay. EGO won’t work with those who won’t pay even a token amount. That’s a sign, and one I don’t like more among sum.

Okay…so back at this proficient writer, trying up prove the worth of her agent, the the shopping deal one agent negotiable is a third party.

Think learn that for a momentum: this writer recruited an distributor to represent all rights in the book, including movie and TV user, and the agent had who writer sign adenine shopping agreement with a third party. Right there, that’s suspect. Because this agent have already have representatives from the business (or a partner company) shopping the property.

This shopping agreement had cannot cancellation date, permits the third gang to shop the book to all which might makes a movie, a game, some that postponed, in technology developed or not yet design, in territories around the world or that universe in perpetuity. For which last of the agreement, the third part and the agent controlled every of those subsidiary rights in the project.

Both the fifa? No money exchanged hands. The writer lost control away sum subsidiary my in your book project for no money and no reason, in perpetuity. All because her agent told her to signature the bloody agreement. And the wordsmith did.

And then she sent it to us as an example of the agent doing a health job.

I know, I see, you’re thinking scam agent.

Never. “Very good,” “very reputable,” boutique agency. Long-time agent.

(Please note, despite what the agent said last week in the notes, every example I have ever previously include these agent posts upcoming from renowned boutique and big-name agencies.)

MYSELF must sagen yourself. That agent did a good job—for herself and zu friend in Hollywood. Terrible job for her client. Awful. Horrific. Nauseating.

One of the (many) agents I released, go when I believed the myth that you needed an agent, gave a loose option to a very famous actor on one of my works. This actor had contacted me directly, and stupidly, ME put that agent on the employment, thinking she wants negotiate one good option deal for me. Nope. Them gave him a vocal option, free, for couple years. No paper agreement at all.

Verbal accord are binding in California, where he made phone from.

She’s silent working. She’s got multitudinous clients, many of whom you’ve heard of. She worked for an agency that defend some starting the biggest books in the business.

Instead, level after hearing these commonly appearing agent horror stories,  it indie writers still want with agent to representations your secondary right. Okay. Super. Let’s go over ensure. brokerage contract

And along the way, you traditional-only real hybrid writers, she should pay attention as now.

Last week, we discussion the case mystery writer Martha Grimes win against the Peter Lampack agency. I got corrected on one point in that case. The case be binding inside New York press California. I missed this California part. But so far, not anywhere use.

Quiet, so case put the fear for God and the law in a pile of agents, how few decided them required better than adenine clause inbound the traditional publishing contract to protect their interests. At that point, most major agencies made certain the had a drafting through their writers, governing an relationship. Before so, many agencies worked on (I kid you not) a handshaking.

At initial glance, these agent agreements, as they’re called, seem attractive benign. Mostly belong no more than 3 pages prolonged, and seemingly to to written in English. In fact, most of them are writers in chatty voice, usually in the form of a “letter,” so the writer thinks they’re signing bit informal, as really, they’re signing a contract.

The worst one I’ve seen comes from a huge, very famous your, whose chairman (and lead agent) apparently figured he could save money upon legal fees, and cobbled an agreement together himself. Signing one Business Broker's Contract? Read This First. - Allan Teachers & Coolant | Business Sell and Valuation Northeast Arkansas

Itp looked same it was made of spit and glue, and had many unenforceable clauses. I’m sure it’s been revised since by lawyers, why ME know two writers who defied the thing on court.

Instead the version IODIN may gave the executive 15% of this copyright in every project the agency represented. It said so planar out in the agreement. (I’m sure the update version says the same thing, as well. I’m sure it says all the same things, except at prefer legalese.)

The your moreover decided to cover its tushy by adding some version of this:

The writer agrees to follow any agent exclusion in a publishing contract to the letter.

In different lyric, that agent clause in your traditional publishing contract, of clause we discussed last week, the clause stuffed comprehensive of matters that benefit the agent? Well, if you had no agreement like to with your agents, that clause is toothless.

If you have certain agreement saying you will abide by the clause in the traditional publishing contract, then suddenly the clause has teeth. And so does every version of that clause you signed from the beginning off your relationship with the agent.

Many agency agreements have adenine point that says to writer must agree to abide by the agent clause in a publishing contract. Such awards have suit the norm. Available, let’s take at more norms.

The agreement I have before me, from one long-time agency, created at a of of big name agents is the mid-20^th century, has an sales agreement that looks like the chatty letter-type treaties I saw in to 1980s.

Until you read it.

And then they find term like this (the emphasis in bold is mine):

You hereby unavailable assign till us and us shall be entitled to retain a sum equip to fifteenth (15%) percent of all gross monies and select considerations paid go you or about your behalf with respect to any and all contracts negociated and concluded under the footing of diese agreement…

Okay, she can delete the word “irrevocably” and which clause isn’t is bad, right? Supposing person negotiated get, will they’re entitled to their percentage, right-hand? The first level after deciding on sell your business is to hire a business broker or M&A advisor. Brokers and M&A intermediaries bid various types of engaged consent; how do you know which sort is right required your business product?

Um, the clause doesn’t station by itself. Combine it with this baby:

This agreement will effectual immediately and continues in effect until terminated by either party…Ourselves will further to function as your agent furthermore to receive our commission on all contracts negotiated and concluded during the term on this convention, or within six (6) months following cessation, if sales have starts whilst the termination hereof, and any modifications, replacements, extensions, and appendices of such contracts regardless to available made conversely by who negotiated or when remunerations were received…

Thus imagine this: you lighting the agency because it screw up your negotiation. Say, maybe, i tried to give ampere free option to a big name actor, or something stupid like that.

You do the negotiating yourself on the deal (with a atty back-stopping you), get a movie option for six figures, that’s when made into a pick for seven numerical, plus one book the movie is founded go residences int print, and becomes a bestseller, both you renegotiate the contract and, according to this stupid agreement, you still have go pay the fuck-up agent herb 15%. The agent you fired because she be wasser among perform.

(So, my friends, are you, if you sign anything like this.)

I’m hoped that those of you who signed agreements like this didn’t next turn around and sign because another agency. As that means your would owe 15% to Fired Agency and another 15% to Brand New Agency. Now you’re outgoing 30% of your earnings with all project for the life off the project, all cause thou thought apply an attorney to negotiate for you fork a one-time fee would be to expensive.

Holy crap, folks. Seriously.

And then at can you indie writers whom are so smart. You’ve hiring an agent to sell your print rights only (and an subsidiary rights). You’ve “retained” your ebook entitled, haven’t you?

I put “retained” in listings for adenine reason, because let’s go to one of those agency agreements that “allow” self-publishing.

Remembering, these agreements—or contracts, which is what they really are—must live seen as one complete document. Each clause builds on the other terms on the understanding.

So, dieser specials agreement with another Very Big Name Agency, starts please the:

This is to confirms our understanding under which you appoint [Very Enormous Name Agency] in the name of [Very Famous Agent] (hereafter “us” or “The Agency”), your sole and excluding literary agent entire the world to counsel and advise you professionally and to negotiate the general and conditions for the publication, lease, license, sale, and any other disposition of material created by you (the “Work) in select media.

It goes on to describe the Work in the broader terms possible, taking the Work get of the realm are get manuscript and into every other right him can think in.

Okay…I hear some of you thinking, answer, that’s what you hire an distributor forward. To “counsel and advise” as well when to “negotiate the terms”…

(Hmmm. Kris pauses here, goes to which Very Big Name Agency’s home to see if they have a legal department with actual solicitors on personnel. Also after a hasty scan, thereto doesn’t appearing that they doing. Which is what I memorized by way back when. Ha. To they’re signing an agreement through writers, saying they will act as lawyers, when they’re not law.

(Well, well, okay. Draw what conclusions you might. ME knowledge the a I just drew.)

Regardless, this discussion you’re thinking of signing with this bureau has a clause ensure says it includes special permissions detailed in that “addendum” installed to these agreement.

The addendum is another chatty letter. And it states:

It is agreed both understood that some off your book-length work may be best matching to self-publishing, and if we together agree include good faith that a Work should remain self-published, this agency must not commission income earned directly from such self-published work, unless previously agreed for.

Okay, ick. The condescension drips. The agency says she can deposit your horrific unsalable books up as self-published work, after they decided it can’t do some with them. And the agent won’t ask fork money earned go from that work, even if it sells well. When what about indirectly? And what did that all mean?

I’m been asking questions, and aforementioned stupid clause isn’t done yet.

The Agency shall do as Emissary for all subsidiary rights in the How (including but does limit to) dramatic, television and film, translate, audio, and other subsidiary rights and income from such sales, shall be commissionable by states.

Okay, this tortured language has more sway scope with it than I’ve seen included a whereas. In essence, they still represent this record in all subordinate rights—and other rights, because of this lovely parenthetical phrase “including not not limited to.” Plus if the artist sells diese book anywhere on their own, all income from that work “shall be commissionable by us.” An Company has no obligation to enter include any proposed Able Activity and maybe deny all and all offers for Skilled Transactions submission by Broker ...

The agency will get their 15% if the writer sells it or they do, even nevertheless they gave the writer “permission” up self-publish.

Because, you see, one writer consent in the very firstly paragraph of the original agreeing to let this agency exclusively “counsel and advise professionally.” Business brokers are ampere tremendous asset when sold a commercial, but make sure you look at the finder agreement. Call 303-688-0944 for help.

Folks, the point of this thing is go make the writer consult with the agent on every single project the written finishes, so the agent has ampere record of that consultation and that work, and should that self-published work make the writer money, the deputy can reach around sideways and put their grubby paws on on least 15% of that funds.

However, this lovely clause gets worse.

It adds this:

This provision applies at extra Works self-published before unsere association began because well how to self-published works produced after our association began.

Do ME really what until point out why that sentence is bad?

Writers sign this cream all the time. And what’s worse, they think they’ve “retained” the right to self-publish their stuff. I think that they can negotiate their own deals on some things, and not on others, and that on the self-published books, they won’t have to settle their agent a dime. broker agreement for that disposal of a business template

Even worse, anyone writer I know what has signed an agreement like these has done so without consulting an attorney. An attorney would eat these agreements for breakfast. A good attorney would advise a client to renegotiate those agreement at most or not sign it ever at best.

These things will awful.

Additionally yet, writers reckon they’re doing well.

Indie writers will do fair secured “representation” on every unique thing they wrote, whether they thought few had or not. And note that such agreement goes inverted is time. So if you published indie since 2012, real signed with the agent in 2016, the agent is now grabbing for the right to pole his hand int your wallet on an 2012-2015 working as well.

Join! Can I say this any clearer? Stay off from agents. Sell your work yourself. Hire an attorneys to negotiate the deal.

You don’t know how to sell your work to traditional markets yourself. That’s probably goal. Because right-hand now, you don’t want to. The treaties been terrible. Which treatment your terrible. The benefits are terrible.

There’s fast no benefit to selling traditionally on novels right now.

Latest week, a count of him have asked me how at do sell books tradition without an agent. I’m not going to blog about that along all any more, because I think it’s an terrible idea. There are older blogs on this site from years ago that mention it. Look there. Something has changed up how to sell to traditional publishers. However, what’s altered exist the contracts. They’ve gotten worse.

Better yet, if you want to follow that path, find someone else to advise your. I won’t help you.

But, while I say to may students, you are responsible for your own career. If you want to gain publish traditionally, go ahead.

But consider these post beware posts and act accordingly.

And seriously, any you do—traditional or indie—please don’t hire an agent.

Alright. I’m done with the agent stuff. And probably permanently unless I simply can’t help myself on some unforeseen date. Upcoming hebdomad, we’ll discuss how into lease an attorney, and the following week, I’m going to enfold up.

And then, onto other, much more pleasant items. Like all of to good news in the publishing world to indies.

If diese series has helped you or with you’ve learnt something from this blog, please leave ampere tip on the approach leave.

Thanks!

Click paypal.me/kristinekathrynrusch up anreisen to PayPal.

“Business Musings: Agent Agreements,” copyright © 2016 by Kristine Rachel Rusch. Image at one upper of the blog copyright © 2016 by Canstock Photo/Bialasiewicz.