Putting Reversion Before the Horse

darrellcurts asked: I know I am getting way, way, WAY ahead of myself considering I do not have an agent or publisher but, how long should an agent and/or publisher contract run? What should be the thresholds for rights reverting?

I can’t speak for all agency agreements, but ours is open-ended - in other words, it lasts until either the agent or the author terminates it. Other agencies may do a year-by-year agreement, or book-by-book. And even after termination, the agent who sold your book is generally the agent of record for that book as long as it is in print.

Publisher contracts vary. Most domestic book contract terms are “for the life of the book” — the book considered out of print if sales fall below a certain number of units sold. Let’s say, totally arbitrary example, “if sales of less than 250 units, in any format, in two consecutive accounting periods, and publisher has notified author they do not intend to reprint.” kind of thing (those numbers btw, totally made up, every publisher is different.)

Some other types of contracts - say, subsidiary rights such as foreign language, apps, audio — or permissions (like a test company wants to use an excerpt of the book on the SATs) may be for a set period of time - such period varies, perhaps 5 or 10 years, depending, and they have to get permission again if they want to keep producing it past that window of time.

What SHOULD be the thresholds for rights reverting? When the publisher is not printing new copies of the book, the book is no longer selling, and nobody is making money off it. In MY opinion, at that point, rights should be reverted easily. Sadly, some publishers are real pains on this subject and want to cling to the rights even after the clearly defined threshold has been crossed, and make you wait six months or more, then say ‘no no we are going to make an ebook you can’t have the rights back’ etc etc… NOT THAT I AM BITTER OR ANYTHING. *cough*

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On Agency Agreements

Twitter-Q: What sorts of clauses should we watch for in the agent contract? Do authors ever have an attorney review before they sign?

I've been asked a variation of this question several times in recent days. I can trace the current anxiety surrounding this issue to a specific blog post from last week, this one from agent Kristen Nelson. I could have sworn that I'd written about this topic before, but I couldn't find in the blarchives, so here's my take:

I prefer to call the document in question an "Agency Agreement" rather than "contract" -- it is a contract, of course, but in my experience it is a much gentler, more genial, and much less confusing document than a publisher contract, and "agreement" more accurately fits the tone of the thing. Plus then it doesn't get confused with all the actual publishing contracts we will be negotiating on your behalf down the line. :-)

The agency agreements I've seen have been quite short and easy to understand. There should be nothing "gotcha" or secret about the terms set forth in the agreement. You should not need a team of lawyers or experts to parse the language, in fact, since the terms of the agreement are often so simple ("this is our commission" for example), they are often non-negotiable, so a lawyer would be a waste of your money. (That said, of course you may spend your money however you like... I'd just look at it before you start getting lawyered up.)

The agent you are signing with should make time to walk you through the agreement. If you feel totally freaked out by the complexity of the agreement, and are too scared to ask questions, or don't understand the answers... you might be signing with the wrong agent.

Here's are the big points an agency agreement should contain, and things to watch out for. NOTE: Some agencies have no agreements at all, it is all verbal/handshake. Some agencies will have more or less items, or have these worded in different ways, or in a different order, but these are in general items that should be covered either in your written agreement or in your conversation pre-"handshake" deal:

1. Scope of Representation: What is the agent repping? (books? short stories? magazine work? subrights? everything?) Is this a one year contract, or open-ended? I know that some agencies do a year at a time, and the contract renews (or doesn't) each year. Some do a book at a time, and the contract renews (or doesn't) when there is a new book. It is my experience, however, that many or most agents are "at-will" - in other words, we are your agent until such time as either party decides to part ways. Make sure you know what the agent is going to rep for you, and if this is a contract that has a specific term, or if it is open-ended.

2. Commission: How much the agent gets paid, and for what, and how the money will be distributed. Notes:

* Agents typically get 15% on regular book sales, and 20 or 25% on subrights that involve one or more co-agents (ie, Hollywood or foreign). I've heard of slight variations on this, but wildly different commission rates would set off major alarm bells for me.

* Money typically goes from the publisher to the agency, they take their commission out and forward your part to you. It is my understanding that legally, this has to happen within 2 weeks of the agency receiving the check. There may be exceptions to this arrangement, in which the publisher sends your portion of the monies directly -- for example, if you live in a foreign country, this might alleviate some of the bank fees. Doesn't really matter either way, but you need to know how you're going to get paid, and I would want this in the agreement.

* Expenses: If you request unusual services such as courier, overnight delivery, etc, you may have to pay for such expenses (I have never once had to charge expenses in this fashion, because my clients don't request unusual services. Regular postage, office supplies, etc, I pay for). In addition, you may have to pay for shipping of your own book overseas for foreign sales. This is normal. Any such charges should be well-explained to you, and documented/invoiced. NOT NORMAL: Requiring you to go out of pocket for special 3rd party editors or "consulting services" or similar. Major. Red. Flag.


* Agents typically get their commission for any book that they sell, for the lifetime of that publishing contract. When the book goes out of print and rights revert to you, 20 years from now or whatever, you've gotten a new agent and she sells the book to a publisher who re-prints it, the first agent should not get any % from that sale. Likewise, the new agent will not get any % from the first agent's sale. I have clients who sold their first book with another agent, or by themselves - I get no % from that. But if I sell that book to France, that is a new contract, and I get the %. Make sense?  However THIS is where the "in perpetuity" problem that K.N. talked about in her blog post comes in. Do make sure that the agency is only receiving commission for what they actually sell, not on the book in any permutation in perpetuity. UNLIKE K.N., I have never actually seen this wording in an agency agreement, but I have no doubt that it sometimes exists.


3. Termination:  This will set forth how either party can "break up". It will probably say something like, you must notify the other party in writing (or possibly by registered mail). Some agencies, you are able to move on effective immediately,  BUT any and all work subbed by the first agent will continue to be repped by that agent. So, you can get a new agent tomorrow - but if we get an offer because of work that I did and a submission that I made, I will negotiate that contract and your new agent will have nothing to do with it.

At other agencies, there may be 30, 60 or even 90 days built in here where the agent can tie up loose ends, withdraw books that are on submission, and during which you would be obliged not to get new representation. This is just an additional guarantee that the agent will be protected should you decide to go rogue after they've made a sale for you. Make sure you understand what is involved if you decide you need to part ways with your agent. You don't want to cause bad blood, or worse, get in a situation where two agents feel they have claim over your work. If the agent is asking for longer than 30 days "leeway", I'd ask to shorten it.

Annnnnd... that's pretty much it. Pretty straightforward stuff. Again, some agencies might have NO formal agreement, or more clauses in their formal agreements, but none of it should baffle you, and if it does, that is what asking questions is for. There are a lot bigger and scarier contracts in your publishing future, so you need to know that your agent will be able to translate for you if necessary. Sometimes an agent might use shorthand or throw around jargon that you don't know. And yeah, Google will help, but when it comes to something as important as your career, as my lawyer parents taught me:

NEVER, EVER, SIGN SOMETHING WITHOUT READING AND UNDERSTANDING IT.

AND NEVER, EVER, BE AFRAID TO ASK QUESTIONS!

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Pants on Fire

Every year or two there is a story about a nonfiction writer who just made up a bunch of bullshit and called it his life story, or copied a bunch of info from other books without any attribution, or a fiction writer who lifted paragraphs or chapters from other books and called them her own.

We know that lying is wrong, and that copying other people's work is cheating. That's still covered in like, kindergarten, right? But still... writing a good book is HARD. And cheating can seem easy, and painless, by comparison. Particularly when there are thousands (or even millions) of dollars riding on your whipping up a good story on a deadline.

Publishers can't exactly compare every line of your book to every other book ever written, or make you take a lie detector test to prove you climbed the Himalayas that one time. But they do make you sign a contract. And that contract always includes a Warranties & Indemnities clause. This section is easy to gloss over because it doesn't contain any $$$ signs, but it is interesting and important to know about. Of course it will differ from publisher to publisher, and can get quite long and complex, but in general, it looks like this (LIBERALLY TRANSLATED):

a) You promise that you aren't plagiarizing this.  You haven't stolen any of it. You aren't committing libel.  This is not a violation of any obscenity laws.  This has never been published before.  You wrote this all by yourself and you have the right to publish this.  The book does not contain recipes or instructions for anything that might cause somebody harm.  ("Timmy read Magic Under Glass and learned how to bring the grandfather clock to life, and then it strangled him!")

b) You assure the publisher (and by extension anyone the publisher works with, foreign publishers, movie producers, whomever) that you really, really told the truth just now and they will not be sued for any reason because of something in your book.  If it turns out that you were lying about any of that stuff before, you have to pay the damages and attorney fees.  (Um, so don't lie.)

c) Provided that you DIDN'T lie before, you are covered under the publisher's insurance policy, so if for some reason you are sued, they will provide legal counsel and you are required to work with them to defend the case.  (Generally, if you also want to hire your own lawyer you can at your own expense, but the publisher's lawyer has to be in charge of the case.) You still might be liable for some expenses, but otherwise you are covered -- unless of course it comes out that you were lying about any of that stuff that you promised you didn't lie abut before, in which case the insurance is off, and your publisher will leave you to twist in the wind, and did you know that lawyers in New York are very expensive? They are. 

Aside from the financial burden, you will of course also ruin your reputation, and become a laughingstock and/or a pariah. Though it doesn't mean your career is necessarily over (bad pennies do keep turning up), people in publishing do loooooove to gossip, and media likes to get ahold of these stories when they are big, too, so it is safe to say that there will be repercussions far into the future.

Also, you will make your agent cry. :-(

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Options! Options! Options!

Q: How about getting out of a never-ending option clause? Say you've gone directly to a publisher. Say that publisher keeps putting an option clause in the contract that says they get first look at your next book. Said Publisher refuses to take this clause out, and Little Known Author has very little bargaining power. Is there any way out of this situation? Or is it best to just suck it up, write another book, and query some agents?

This is going to be a long one, I apologize in advance. But it is important, I swear.

Probably not everyone reading this knows what an Option clause is, so a quick definition. The Option clause (frequently just called "option") is part of the contract that essentially says that the publisher has x amount of time to look at the author's next manuscript exclusively.

I try to remove the option from contracts whenever possible. Some publishers insist on keeping it in their contracts. Seems silly to me personally, I mean, I always try to give the current publisher first crack at a next book unless there is a pressing reason not to. It is only polite... and I don't like being contractually obligated to be polite.

I do understand the publisher's perspective. They are making an investment in publishing you, and they want the opportunity to be the ones to grow your career. After all, if they liked your writing enough to buy it the first time, they may well like the next book just as much, publishing more books from you will help the sales of the first one, and why should they spend all this time and effort and money to publish you if you're just going to run away with the next book?  I get it. Don't always agree with it, but I get it.

That said, there are some option clauses that are onerous. The good news is, even if a publisher will not remove the clause, they will often adjust it... and yes, probably even for a small-potatoes author with no agent.  Personally, I do my best to remove the option, and if I can't remove the option, I try to make the terms of the option as narrow as possible.

For example, if you have written a YA novel set in a Victorian Steampunk version of the Old West, you don't want the option to be for the next book of any kind that you write. I might say that the publisher only has an option on "your next work of YA fiction set in Victorian Steampunk Old West" or "YA set in the same world" or "with the same characters." That is fair, I think, as it would naturally make sense and be for the best if the same publisher can publish what could be considered a sequel or companion book to book 1.  But this way, if you write some totally different contemporary YA, or a Middle Grade, or nonfiction, or anything else, you aren't required to give them a brief exclusive (though you still can if you want, and it is probably polite to do so if you have a good relationship with your editor).

I also make sure that the option time limit is as short as possible (30 days is ideal, NOT 90 or 120 days or anything else). And I ask to be able to turn in a proposal/sample chapters, not an entire manuscript. And I make the date I can submit be either anytime, or anytime after delivery of the first book... NOT AFTER PUBLICATION OF THE FIRST BOOK. That could keep you hemmed up for a year or more.

Also, sometimes there are nasty bits of the clause that might say, essentially, "if we make an offer but you go elsewhere, you are not allowed to take less money than we offered you" or maybe "if you turn down our offer or we don't make an offer but somebody else does, you have to come back to us first before accepting any other offer." NO. NO. UNACCEPTABLE. If you've given them an exclusive and they make an offer and you accept it... awesome!  If they decline to make an offer at all, too bad for them.  If they decline to give you the offer that you want to see and won't negotiate, you can say no, and that is the end of it.

One (invented) example of an onerous option (there may be more text or different problems than this):

Publisher shall have the first opportunity to read and consider for publication the Author's next work, for a period of 120 days from receipt of the complete manuscript, such time period not to begin before 60 days from the publication of the Work which is the subject of this agreement. If Author and Publisher cannot agree to terms for publication of said next work, the Author shall be at liberty to negotiate with other publishers, provided that the Publisher be given the option to obtain the rights to next work by matching terms which Author shall have obtained elsewhere.

One (invented) example of a decent option (there may be more text than this, but these are the basics):

Publisher shall have the first opportunity to read and consider for publication either the complete text, synopsis, or specimen chapter from the Author's next realistic YA novel set in the same world as the Work that is the subject of this agreement, for a period of 30 days from receipt of proposal of said next work, on terms to be negotiated. If the Publisher and the Author are unable to agree terms for publication, the Author shall be at liberty to enter into an agreement with another publisher.

So quick recap. You are given a contract with an option clause in it:

You may ask to have this clause removed. If they won't remove it:
* SHORT time limit on option clock (30 days max is ideal)
* Try to specify that you can turn in proposal or sample, not completed ms. & narrow down the type of book that is covered.
* Time limit starts whenever you turn in proposal, or if not, within x time after DELIVERY of first book, not publication
* If they say no, or the option clock runs out, your obligation is complete.

Remember - if you've done your best to create a good next book or proposal, and you've given your current publisher a decent crack at it according to the rules and spirit of the contract, you are done. If they take too long, you are allowed to go elsewhere. If they give you a terrible offer, you are allowed to say no. Just because you have an option doesn't mean you are REQUIRED accept any offer.

And if all this is too late for you, or you don't know what I am talking about and all this stuff gives you a splitting headache... it's probably a good idea for you to write another book and query some agents.

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To Multi-book, or Not to Multi-book

Q: What about two-book deals? How finished does a sequel or tie-in need to be and how likely is it that a debut author can get one?

There are great reasons to sell a book in a two-book or multi-book deal:

* You get a guaranteed next book for the same amount of money, even if the first book just does "meh".

* You get more time for the publisher to "build" you -- if they've made an investment of time and money, they are expressing faith in your future and longevity, and the hope and expectation is that they will try to make sure that you do well enough for them to make some dough, at least.

* There is a sense of security that comes with knowing that this book is sold already. Some authors thrive with this knowledge. And some authors work best under a deadline.


There are great reasons NOT to go for a multi-book deal:

* You are locked in to having sold the second book for the same amount of money, even if the first book does phenomenally well. You may deserve a lot more money for book two, but the book is already sold.

* If you don't get along with the publisher, or don't agree with how they are handling your career, or think the book is being published badly... you are stuck for another book, with an potentially expensive and hassle-filled nightmare if you want to get out of the contract.

* There is a sense of excitement and freedom knowing that you don't have a contract for the next book. You could do anything you want! Some authors work better if they "stay hungry" and free in this fashion. And some authors panic under a deadline.

Maybe half of the deals I make are multi-book deals, and many of my debut novelists sold in a multibook deal. Sometimes these are series or sequels, though just as often book 2 is an entirely new book.  Whether we go in the multi-book direction depends on the author, the book, the desire of the publisher, if the book lends itself to a series or sequel, if there is competition, etc.

The good news is, the most I've ever had at this stage is a paragraph or brief synopsis describing what book 2 might be. In some cases, in fact, I have had absolutely nothing, but the publisher was ready to make a commitment to the author even without an idea for book 2.

As in so many aspects of this business, there is no one-size-fits-all answer. This is something to discuss with your agent or editor when the time comes.

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