Boilerplate--didn't Dante have a book about that?

Dear Miss Snark:

I have at long last received an offer of representation from an agent. My excitement, however, was somewhat dampened when I read the agency's boilerplate contract.

These provisions, in combination, trouble me:

1. It covers not just a particular work, but all literary works or properites of the author during the contract period.

2. The contract is for one year and, at the end of the initial term, can be terminated on 90 days notice. (Sounds like it is binding for the first 15 months; I thought a 30 day termination notice was standard.)

3. Expenses are charged against the author's earnings, but if there are no earnings, the author is billed for them.

Have these contract provisions have become common in the industry? This is a well-known, reputable agency, so should I just be grateful and not worry? It is unlikely I could get changes to their boilerplate contract, in any case. Still, I would really appreciate your advice before I sign.
Almost Thrilled

Why do you think they won't change it?
Have you asked?
Assume nothing.
Ask for the reason behind the language and if you don't agree, ask to have it modified.

I don't think there is a standard agency agreement. My colleauges and I are always tinkering with things based on experiences (read: horrible unforseen situations we hope to never deal with again) and what we learn from other people. For example I just added a "duration of one year" clause to my contracts.

I don't agree philosophically with the idea of the author picking up expenses if the work doesn't sell. It's also unenforceable. What are they going to do? Turn you over to a collection agency for unpaid postage? They can't hold your manuscript hostage. They can't say "well, yanno, he didn't pay his postage and messenger bills before he sashayed off into the sunset" without looking like TRUE idiots.

And they may have 90 day term in there cause it takes awhile to close all the open submissions. I have 30 days, but the only time that was a problem was when an author, disheartened, said he was leaving, and I said ok, but I'm not pulling any submissions just in case, and by dog I sold the thing for him about 45 days later. We weren't parting on bad terms, and we laugh about it now but oh man was I glad he didn't say "yanno, SnarkforBrains, you technically don't represent me no mo".

Bottom line: ask for more favorable language. The points your asking to change aren't significant, back-to-the-lawyer language things. They're adjustment of time and payment clauses.


Anonymous said...

Miss Snark, thank you for sharing that. I shall add the phrase, "Why do you think they won't change it? Have you asked? Assume nothing" to my other favorite bootstrap phrase, "It's easier to ask forgiveness than permission." With those (and some beer) I can get through life mahveloosely.

mark said...

You know the second-to-last scene in the Muppet Movie, the one with Orson Welles?

The one where Welles, playing the big Hollywood poobah, stares down Kermit the Frog and his crew, looking them up and down, with that expression on his face that makes you SURE he's going to kick them out on their behinds. He intercoms his secretary, even, with a "I'm calling security" scowl. But instead he says something along the lines of "Please prepare our standard Rich And Famous Contract for Mr. Frog."

And the Muppets are just dancing up and down with glee, and they launch into a huge sunny production number.

They're so happy that there's no way that they'd quibble with what the Standard Rich And Famous Contract says, right?

Well, the system is set up so that first-time writers feel like muppets.

Samuel Tinianow said...

Go ahead and ask, though if I saw that bit about expenses, I'd probably be sending the contract back unsigned with a small slip of paper that said "NO" in 72-point type. The mantra of "You don't pay the publisher; the publisher pays you" extends to agents as well; though they do collect a commission from sales of your work, you should never have to shell out for them if your work doesn't sell.

Sure, it's possible you could get them to send you a better contract, but the fact that they'd give you wording like this in the first place seems highly predatory, and it's generally not a good idea to put your work in the hands of an editor or agent who is blatantly untrustworthy.

Anonymous said...

Thank you! You are right. It is better to ask than to fret. I talked with the agency, and they explained why they had tightened their contract governing getting out--a bad experience, of course. I expect to be very happy, but if not, I believe they would let me go--so long as I wasn't trying to shaft them, which I never would. Also, they offered to put a max on the expenses that is low enough that it won't be a big deal if I have to pay out of pocket. But then, I'm going to have a big sale so this won't be an issue, right?
--Now I'm Thrilled, not Almost Thrilled.

pacatrue said...

The item I was concerned about is the "all properties of the author during the contract period" bit. Something similar has become common in the non-publishing world as well. I once was supposed to sign an employee agreement that my company owned anything I created, whether or not it had anything to do with the company or its products, the entire time I was employed there. The purpose for the company behind such agreements is that they don't want to provide me a computer and office at which I then spend all my time creating a new product to sell on my own; i.e., their expense, my revenue.

But it seemed a bit odd for an agency agreement. This seems to imply that if I ask them to sell my paranormal scifi romance that they also have all rights to sell my Introduction to Endocrinology and anything else I write. I am just not quite clear on what the purpose of this line is.

Of course, if an agency's main problem is that they want to help me sell everything I do then that's a problem you'd like to have. An author just want to make sure that the agency knows all the big Endocrinology textbook editors as well. I assume that most authors and agents are intelligent, well meaning people and will simply say, "I have no idea how to sell medical textbooks, but go talk to Ms. Loopa Henle who handles this all the time." Then there's that one person who isn't so nice....

Dave Kuzminski said...

Oh, they'll put a limit on the expenses? I want to know who they are.

Dick Margulis said...

Note to anonymous number 1: "It's easier to ask forgiveness than permission" is an apothegm that circulates in the culture as if it were a biblical proverb; but it originated with Adm. Grace Hopper, one of those heroes more people should know about. Look her up. You'll be glad you did.