I love Kris Rusch's discussions of agent clauses. I'm sure that many, perhaps even most, agents are kind, honest, people who look out for the interests of their authors. That said, perhaps an agent isn't always familiar with all the clauses in the contract they ask their writers to sign.
In any case, reading what some writers have signed has been an eye-opener. My mother always said that to be forewarned is to be forearmed. Let's hope! Kris writes:
[T]he agent clause, which you find in most agent-negotiated publishing contracts, now says things like:If you're ever thinking of getting an agent, or have an agent, I heartily recommend reading Kris' article: The Business Rusch: The Agent Clause (Deal Breakers 2012).
The Author hereby appoints Agent A irrevocably as the Agent in all matters pertaining to or arising from this Agreement…Such Agent is hereby fully empowered to act on behalf of the Author in all matters in any way arising out of this Agreement…All sums of money due to the Author under this Agreement shall be paid to and in the name of said Agent…The Author does also irrevocably assign and transfer to Agent A, as an agency coupled with an interest, and Agent A shall retain a sum equal to fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement.
. . . .First of all, I’m not assigning anyone anything “irrevocably”—certainly not someone I can fire for cause. Especially if my money goes through their account first. I will not “fully empower” anyone to act for me. (Some agents go so far as demanding legal power of attorney—which is something you should never give anyone. What that means is that they then have the right to be you in all legal matters. No. Do not give legal power of attorney to anyone without good cause—like you’re dying and need someone to handle your accounts (and even then, it might not be a good idea).)
Finally let’s discuss “agency coupled with an interest.” What that means is this: You are giving the agent ownership in your novel. Ownership. They now have a 15% ownership of your book.
. . . .Through the agent-author agreement and with the agent clause, some major agencies actually take 15% ownership in everything a writer writes, even if that writer never sells the product through the agency at all. This is becoming more and more common.
But let’s assume your agent is a fairly nice person who works for a large agency. Let’s assume that the agency insists on an agent-author agreement, and let’s assume that the agent-author agreement looks fairly benign.
By fairly benign, I mean that the agent-author agreement details the relationship—what you will do, what the agent will do, and even lets you cancel the agreement for any reason with thirty days notice. However, the agreement has one clause in it, one little tiny clause that says something like this:
The Writer agrees that she will abide by the agent clause negotiated by Agent in all of her publishing contracts.
Sounds fine, right? It’s not. Because…let’s assume the agent clause in your publishing contract has this standard little phrase at the end: The provisions of this paragraph shall survive the termination of this Agreement.
This means you’re screwed. You have twice signed legal documents (and maybe more than twice) that says you will continue to pay your agent money on this particular agreement in perpetuity. The first time you signed, it was in the agent-author agreement (stating you will abide by the agent clause), and the second time was when you signed the publishing contract itself.
This is nasty, nasty stuff, folks, and lots of writers have signed it. Hundreds, maybe thousands, of writers have done so.
Don’t you do it.
In fact, if your agent asks you to do so, run from that agent, leave that agency, and don’t look back.
Why? Even if your agent is a really nice person, here’s what these clauses tell you. They tell you that your agent does not work for you. Your agent is interested in his own business and his own profits at the expense of yours.
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