Yikes!

by Lauren

As we leave you for the holiday weekend, a cautionary tale:  Apparently Penguin is suing an author to recover the signing payment on a contract they've canceled for failure to meet a deadline.  It must be said, that deadline was in 2007, and there were presumably multiple extensions that got them here, so Penguin has been quite accommodating.  And that signing payment is not exactly chump change.

As a person who is ever so slightly panicked at the prospect of finishing my to do list before leaving for the holiday weekend, the notion of breaking a contract for non-delivery strikes fear into my heart, but for those of you who need that extra bit of danger before something seems real, it seems this might just be it.

But hey, a three day weekend is a great time to hunker down and write, right?

The importance of reading your contract

by Jane

Over the past months, we have spoken of the many reasons an author needs an agent, and this week, once again one of them became crystal clear.

On Thursday, June 10th, The Authors Guild sent out an alert to its membership that former Bloomberg Press authors should not sign a letter they had received from John Wiley & Sons which is actually a contract amendment that The Authors Guild maintains will make their contracts with their publisher less favorable to them in numerous ways, which Wiley disputed.

Clearly, if an author didn’t read the letter carefully and understand what it was and what effect it would ultimately have if signed, he or she would most likely have been giving up something unintentionally.

This has happened time and again recently with publishers sending authors letters trying to add electronic royalty rates or alter those that are currently in their contracts. In an age of enormous change in our business, I know this kind of thing will only continue to happen.

Which is why it is all the more important for the author to have his or her agent carefully review all of this correspondence and analyze its effect before the documents/letters are signed and sent back to publishers. Even many lawyers often don’t pick up the nuances of publishing contracts and amendments—another reason having a literary agent is necessary.

I would love to hear your thoughts on these contractual shenanigans and whether you think you have been duped in the past.

Why do you need an agent?

by Jane

So back to that age-old question again, and an experience I had last week that provides the response.

I received a call from a man who had already sold his book to a publisher (he had not submitted it to multiple publishers, and so really had no idea what it was worth) for a modest sum and had located and “hired” a movie agent through the internet. He had found an attorney (I am not sure how) who had “reviewed” his contract for him.

When he called me, he wasn’t sure why--he had just been told by his editor and publisher that he should have an agent.

I agreed that I would be interested in helping him, and he instructed his attorney to send me a copy of the contract and to talk with the movie agent to tell him that I would be on board.

But then I looked at the contract and I was stunned. There was a huge problem on the very first page; knowing that we didn’t have a signed agency agreement, I didn’t read further but I am absolutely certain that there are other major problems in that contract that will lead to problems down the road.

Ultimately, this writer told me that he had decided not to use an agent, after all. He thought there was no need as the publishing contract was already signed. I wished him well, but thought to myself that he had made a very big mistake at the beginning and hoped that he doesn’t rue the day he made this decision and that the movie agent is successful in helping the book become a film.

Vetting contracts, of course, is not all we agents do. And, as you’ve gathered from our posts on this blog, the sale of a book is just the beginning of our work with our clients. But, this is a good example of why it’s important to have an agent in your corner.

I am curious what you think about this experience and look forward to hearing.

What does negotiating look like?

by Jane

During Slush Week this question came up and I wanted to provide a brief description of how a publishing negotiation generally works. Undoubtedly, this will raise other questions which I would be happy to address.

When a publisher makes an offer, he or she does it either on the phone or by e-mail. I prefer the latter initially so that I can see all of the terms of the offer spelled out: advance, payout, royalties (including electronic royalties now), territory covered, rights splits and any special terms.

Once I have all offers in from publishers (hopefully there will be more than one), I take them to my client, explain what they are and which I think is best and why. We come to a decision on which publisher(s) to continue to negotiate with and I then go back to the publisher(s) by phone or by e-mail and ask for changes or additional terms. Often I will ask for a different, higher advance, a more favorable payout, different royalty splits, things like that. Sometimes I suggest that different rights be in play.

Most often, we come to an agreement in a very short time--usually a matter of a day, but sometimes, depending on what the project is, these do go on over a longer period.

If we arrive at a stalemate--that is, a point that we and our client will not accept and the publisher won’t budge on--we make that very clear. We call this a “deal breaker” and if we say something is a deal breaker we have to mean it. (Between you and me, most of the time these things can be worked out before we get to that point.)

Once this basic negotiation is completed, a deal memo is done--we send one to the publisher and often they send one back just to make sure we are all on the same page in terms of the basic terms of the deal.

We then go on to the contract where additional negotiation is done on boilerplate terms.

Negotiating a deal is one of my favorite parts of agenting; the process encourages creativity on all sides and often breaks new ground.