5.07.2007

offers from agents

Hi Miss Snark,

Glad to have you back. Here's a question I don't think you've answered before: When an agent makes an offer, is it rude or inappropriate to ask to see her boilerplate contract as part of the thinking-about-it process? Or do the agent and author simply assume they will be able to agree on contract terms? The author wouldn't want to say yes to the agent, withdraw her submission from other agents who are considering it, and then find something she doesn't like in the agent's contract. So reviewing the contract as part of considering the offer might be a good thing. Right or wrong?



Let's review terms. Boilerplate is NEVER used to describe an agent's contract with an author. It's used to describe standard contracts with between publishers and authors. You'd never ask to see boilerplate before you signed with an agent because you don't know which publisher is going to buy your book.

The offer of representation from an agent in written form is called simply a contract. You ALWAYS ask to see it before you sign. Always. You ask every question in the book before you sign.

The rub though is that most of us will not change our standard offer terms for you. I run into this every so often usually when someone has given this to a non-literary lawyer to look at.

I had one potential who wanted me to set up a trust account at the bank for client money. No dice. Trust accounts are a separate kind of checking account and operate under a very stringent set of rules. Not even AAR requires that. My accounts are separate for client money and operating expenses (in line with AAR stipulations of course) but the client account is not a trust account.

He didn't understand that and it was clear he thought I was trying to hookwink him. We solved the problem quite nicely by parting ways before we ever got started.

Another one wanted to include something in the contract that the agent would never say or do anything to damage the book. I asked if that meant he was sending me ziploc bags for the manuscript. Again, we parted ways before signing.

Another wanted to include a provision that if he was unavailable for 30 days, I could sign contracts for him. I explained I could not do that, and would not do it. I think he thought I was irresponsible shirker, but it doesn't matter-he's toast.

So yes, you get to look at the terms before you sign. Make sure you understand them, and make sure there's a way to part ways from an agent that doesn't include her agreeing to it. There's lots of advice about this floating around and most of it's pretty good.

7 comments:

Sherry D said...

I'm still trying to imagine how I'll feel when (if) I ever receive an acceptance from an agent and have to start worrying about a contract. Of course, this means I'll have to finish my novel, perfect it, revise it, rewrite it, re-perfect it, and figure out how to write a query without sounding like a nitwit.

Sonya said...

Whoa. We are a weird bunch, aren't we? I couldn't imagine making such demands... "never say or do anything to damage the book"? HUH??

Everything would be so much easier if we all (writers, editors, agents) remembered we're dealing with real live human beings, no matter how impersonal this business gets. Oy. :-)

Jenny said...

"Another wanted to include a provision that if he was unavailable for 30 days, I could sign contracts for him. I explained I could not do that, and would not do it. I think he thought I was irresponsible shirker, but it doesn't matter-he's toast."

Oh, my god. Don't just walk; run away screaming.

Anonymous said...

Watch out for a clause in a contract that states you have to remain "their client" for a year before being able to part ways (fire them). If things go wrong, you're stuck for a year with someone that isn't working for you or your work.

Good agents don't worry about such constrainments. THEY don't want to represent you if you're unhappy with them.

Anonymous said...

Many thanks for this post. When you said authors were a pain in the ass (P.I.T.A., as in something you might buy at Jack 'N The Box) I wondered if I was a PITA for signing the contracts and delivering the MSS. It now appears the bar has been raised a lot higher than that. Whew! Thank goodness.

Anonymous said...

Another one wanted to include something in the contract that the agent would never say or do anything to damage the book.

I was once asked to sign a clause somewhat like this in a book contract.

There must be some industry, somewhere, for which this is standard. (But book publishing isn't it, and I didn't sign.)

Anonymous said...

"Watch out for a clause in a contract that states you have to remain "their client" for a year before being able to part ways (fire them). If things go wrong, you're stuck for a year with someone that isn't working for you or your work."

-----------------------

I am represented by a very legitimate agency that has this clause, which most of the lit mavens advise against. Not only does it have this clause but another stating that the contract renews for two more years at the end of the first--unless either party opts out.

I did not run from this. I consulted my non-literay lawyer significant other who said--contrary to the advice of the lit types--that this will mean they can't drop you on a whim.

I now have a contract with a major imprint. It came more than a year after I signed the contract. My agent kept plugging away during times when it seemed like I might never get a deal. I wonder if he would have dropped me if there was the recommended 30-day and your out clause in our contract.

Before I signed this contract, I did ask about the one-year clause. My agent-to-be said they want their clients to be happy and would never force someone to stick around against his will. That was good enough for me. Why would they want to force an unhappy client to remain tied to them? I wonder if someone else could document cases where authors were held against there will. Sometimes you have to make decisions on the basis of trust.

In my case, it worked out.

If you are offered a contract with this clause from a respected agency with documented sales to the big publishers, you should think long and hard about "running" on the basis of this clause alone.