7 Tips for Negotiating a Literary Agent Agreement

by Joseph Perry

Congratulations! You’ve received an offer of representation. The next stop is the bestseller list. But before you start planning your book tour, you should take a few minutes to review your literary agent agreement (or lack thereof)

Oral Agreements

Some literary agencies do not have written contracts. They work with a verbal understanding between their authors. While this seems good in theory, it’s best to put things in writing.

For example, your literary agent may say they only take a standard commission, but what happens if they take more than that once you receive your advance and royalty statements? How would you prove that the agent acted wrongly? Proof becomes difficult.

At the very least, I would suggest putting into writing minimal terms dealing with commissions, the scope of representation, confidentiality, the agreement’s term, and how the agreement can be terminated.

Shopping Your Book Around

Relatedly, you may run into a literary agent who agrees to shop your book around. If you’re already signed with an agent and you and the agent have an established and successful relationship, that may be okay, since the author may not want to write a proposal or manuscript, if the publishers don’t like the idea.

However, if you’re a debut author, that’s a red flag. In my opinion, you don’t have a literary agent if this is the relationship. What does shopping your book around mean? You need more clarity.

Ask for a contract!

Written Agreements

For agents who have written agreements, there are a few things to look out for:

1. Commission Rates

A literary agent generally earns their living based on the commissions they make from your book. The standard rate for all domestic deals in the US is 15%. Any deals outside the US can be 20-25% depending on the territory. Also, certain subsidiary rights rates can also be around 20-25% (e.g., film/TV)

2. Co-Agents

Ask if your literary agent or the agency at large uses co-agents (e.g., film/TV agent) or a foreign rights agent. Any commissions earned (like the ones mentioned above) are split between your agent and co-agent.

Who are the Co-Agents? It may seem obvious, but you’ll want to know who the co-agents are that your agent uses. This is important because you want to see the strategy your agent may have in pursuing subsidiary rights like film/TV adaptations and foreign translations of your book. If there is potential for your book to be adapted or translated, having a conversation with your agent (and their co-agents) can make you feel more at ease before deciding to move forward with the literary agent offering you representation.

3. Term of Agreement

Many literary agent agreements state that the scope of their representation is for an author’s entire career. That’s a long time. You want to ask yourself if that’s the best situation for you. Is this agent one who will only handle fiction or nonfiction?

What if you write both fiction and nonfiction? You’ll want to specify what books the agent will represent. Of course, it’s a great thing on the surface that your literary agent will be in your corner for your entire career.

However, if that’s not what you had in mind (and just in case the relationship sours), and just in case your agent can’t place your book (it can happen), you may want to ask the agent to represent you for your first book with the option to renew your contract 30 days from termination or expiration. Context matters. See what works best for you.

4. Coupled With Interest

Review whether your agreement says that your literary agent relationship is “coupled with interest.” By using these words, the agent is trying to state the agency relationship between you and your agent is irrevocable. However, most agent agreements use the term incorrectly.

To be “coupled with interest,” the agent has to have an interest in the subject matter of the agency itself, and not an interest in the results of the agency (i.e., the agent likely has to have an interest in the copyright of your book, not just the agent’s commission that results from your book).

Therefore, you should delete these words when you see them. In my opinion, the only thing that should be irrevocable about your relationship is the agent’s right to receive commission based on sales and any royalty statements the agent receives.

5. Termination

Review the termination provisions carefully about when you can terminate your contract and when and where your agent may be owed a commission when your relationship ends. For example, your agreement may terminate if you or your agent doesn’t abide by the obligations set forth in your agreement. Another reason for termination may be if the agency goes bankrupt.

Relatedly, you want to see when your agent may be due a commission depending on when a sale is made. For example, if you terminate your agreement, but your agent sells your book in the interim, your agent may be due a commission. Usually, the time period is 30-90 days. Every contract is different.

6. Representation and Warranties

Representations are statements of fact, and warranties are promises that your representation will remain true into the future. Many agent (and publisher) agreements put the risk on the author that certain things are true.

For example, you have the right to enter into the agreement and the book you create does not infringe upon anyone’s intellectual property, is libelous, or violates any privacy rights.

Look to see if there is broad language here (for example, your work doesn’t violate ANY right). That’s impossible to represent, in my opinion. See if you can eliminate that language, or before the list of reps and warranties, see if you can limit that you represent and warrant “to the best of your knowledge.”

7. Indemnification

To indemnify someone, you compensate another party for any costs or expenses that stem from a third-party claim (for example, you indemnify your publisher for any third-party copyright infringement claims). Some literary agent agreements contain this provision. Others don’t. For those that have the provision, try to eliminate it. That’s likely non-negotiable. So, what can you do?

You can ask for mutual indemnification. If not, some things you can do is to ask for your royalties to be placed in an interest-bearing account if there is a lawsuit. You can also ask for the royalties to be released to you if the lawsuit is no longer active.

Conclusion

Now that you know some items to ask about in your agreement, I wish you luck in your negotiation. There are, of course, other items that need to be negotiated, but this list should get you started.

by Joseph Perry (@PerryLaw1) March 12, 2023

What about you, scriveners? Have you ever signed a contract with a literary agent? Have you had an agent offer to “shop your book around” without any kind of agreement (I have–and I wish I’d had Mr. Perry’s advice and declined.) Did you ever end up in a bad contract with a literary agent?

For more legal advice from Mr. Perry, see his posts on Copyright and Legal Issues for Writers to Avoid.

About Joseph Perry

Joseph Perry is a publishing attorney and literary agent. You can find him at the Law Offices of Joseph J. Perry, P.C. And Perry Literary, Inc.

As an attorney, he counsels clients in the publishing industry. He drafts and negotiates various publishing agreements and conducts pre-publication reviews of manuscripts. He also registers copyrights and helps authors start their own publishing companies.

As an agent, he represents a variety of successful authors. These include a range of clients from bestselling cookbook authors to academics. Joseph obtained his Juris Doctor from St. John’s University School of Law. He earned his B.A. and M.A. from St. Bonaventure University. He’s a graduate of NYU’s Summer Publishing Institute, and is licensed to practice law in New York.

His office also sends out a regular newsletter called Write it Right. It’s full of legal news relevant to authors. I highly recommend it. And you can subscribe here: Write it Right.

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BOOK NEWS

Catfishing in America drops on March 17th

 

Catfishing in America is the 8^th installment of the Camilla Randall Mysteries — a laugh-out-loud mash-up of mystery, rom-com, and satire.

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