1. Garball
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    Garball Sometimes nothing can be a real cool hand. Supporter Contributor

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    Agents, contracts, and copyrights

    Discussion in 'Publishing' started by Garball, Apr 28, 2013.

    With my first manuscript soon to be submitted to agents, my attorney wife bombarded me with questions that I could not answer completely. So, here goes:
    Are agents lawyers?
    Do you need a lawyer to review contracts?
    How do you negotiate deals with agents?
    Who follows up on deals agents make with publishing houses?
    If you have an attorney (as a spouse) do you need an agent?
    Do you haggle with agents for commission or is it industry standard?
    When/ how do you copyright your material?
    If an editor augments your work, do you retain ownership of material?

    I am not looking for answers to all of these questions in an itemized fashion, just a rundown of the traditional submittal process and the peripheries that don't arise in the simple google search "how to publish a novel."
     
  2. jazzabel
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    jazzabel Contributing Member Contributor

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    I would like to know answers to some of these too. My understanding is that agents aren't lawyers, they have all kinds of backgrounds but their talent is in selling your manuscript to the best publisher. If they take you on, that is. They either have contacts in the industry or are working on it. They're like movie star agents, similar, anyway.
    Agent would probably have a lawyer to recommend, and yes, I'd always pass the contract by a lawyer, to be safe.
    The lawyer should specialise in contracts and publishing, if your wife knows enough, why not save some money? It depends what you both are comfortable with.
     
  3. swhibs123
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    swhibs123 Active Member

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    Hi Garball, here you go:

    Are agents lawyers? Some are. Most are not.

    Do you need a lawyer to review contracts?If the agent is a member of the AAR, there are certain standards they must abide by. But it is always advisable to have a contract looked at by a lawyer familiar with such things. But you can reduce your risk of working with unscrupulous agents by submitting to those with reputable agencies and established reputations.

    How do you negotiate deals with agents? Same way you would any contract. "I don't feel comfortable with clause 5.3, can we change it to "blah blah blah."

    Who follows up on deals agents make with publishing houses? Not sure I understand this. When a publisher offers a contract, the agent reviews it. Usually along with someone at the agency specifically designated as the contracts person (not always a lawyer, but sometimes they are), and then you get the contract to review before you sign it. At this point you can take it to an IP lawyer if you want to, and if they have concerns you can take them to your agent and see if he can negotiate those aspects for you. Or, you can walk away from the contract. Also, agencies have relationships with the publishers, and they have usually negotiated a boilerplate contract that is different for each agency. So many of the kinks are worked out already and it's the finer points that need to be ironed out in each contract.

    If you have an attorney (as a spouse) do you need an agent? Some people will say no, but then you will have to sumit to publishers on your own. Almost all the top publishers do not accept submissions from un-agented authors. So you'd have to disregard that instruction and submit anyway if you wanted a deal with any of the top publishers, i.e. Penguin, Harper, Random House, Macmillian, ... etc, as well as most of the mid-sized houses too. But, a "lawyer" is not enough. You would need a IP lawyer who is specifically versed in the publishing industry. If you don't have an agent, I would 100% hire an IP lawyer to review contracts.

    Do you haggle with agents for commission or is it industry standard? AAR sets the commission at 15% for domestic and 20% for international deals. Not being a member of the AAR is not a red flag, by the way, lots of agents aren't and still function under the same ethics codes. Also, I have seen reputable agents charging 20% for domestic and 25% for international, but that does go against the AAR. If I were looking at a contract like that, I'd negotiate to the AAR standard.

    When/ how do you copyright your material? Your work is copyrighted the moment you put pen to paper. But a formal copyright is usally registered by the publisher after edits are complete.

    If an editor augments your work, do you retain ownership of material? You never loose ownership of your words. You grant publishing rights for a certian term (sometimes life of copyright) but if you have a term that is, say, 5 years, when the rights revert, the words are yours. But bear in mind that editors don't augment your work. They make suggestions, that the author has to approve, alter, or regect. Usually you have house style (or a style the house determines for your book) which are things like, "we spell the word color, "colour" or when we use elipses we do it like this "word ... word." Otherwise, you have suggestions like, "I am not sure about this scene. It doesn't seem to propel the character or the plot... should we cut it?" Or, alterations to sentences that might be wordy, but again, they are suggestions.


    Hope that helps
     
  4. TWErvin2
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    TWErvin2 Contributing Member Contributor

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    I can give you some information on some of your questions:

    Are agents lawyers?
    Some are. There are also literary attornies, which review contracts, but don't do the other things agents do, like represent an author's work. Agents are supposed to be knowedgable about literary contracts.

    Do you need a lawyer to review contracts?If you have a good agent, no, not with a contract with a publisher. With a contract with an agent? Maybe. It depends on the complexity of the contract. Your wife could certainly tell you that just being a lawyer doesn't qualify one in all areas of law, especially literary contracts.

    How do you negotiate deals with agents?
    I have never negotiated with an agent. I would guess they have boilerplate contracts and you go from there. I would, however, recommend a clause that would enable you to leave the represenation of an agent and also one that clarifies what happens to mansucripts the agent has successfully negotiated contracts with (and any works in said series for example that would follow) and also any works they may have sent to editors prior to being released from the contract, but have not heard back from the editors in question, yet.

    Who follows up on deals agents make with publishing houses?
    I don't understand what you mean by this. The author has to agree with any contract negotiated, because the author signs it.

    If you have an attorney (as a spouse) do you need an agent?
    It depends on the laywer's experience/expertise and resources. But an agent does much more than negotiate contracts. They are supposed to have connections in the publishing industry, and the ability to get works in front of the eyes of appropriate editors. They have the ability/connections to sell foreign rights deals, etc.

    Do you haggle with agents for commission or is it industry standard?
    Every contract is negitiable, but what parts depends. In general, agents get 15% of the author's advance/royalties.

    When/ how do you copyright your material?
    Usually when it's published. Often the publisher will take care of this (register it with the US Copyright office).

    If an editor augments your work, do you retain ownership of material?
    I guess it depends on what you mean by augment. If they suggest corrections and modifications, the author is the one who makes them. In that case, no. If the agent augments by adding chapters, characters--doing what would essentially be co-writing a novel, then maybe the situation would be different.

    Hope this helps.

    It is possible to submit directly to editors/publishers. Some accept unsolicited mansucripts. A lot depends on the publisher/genre. Fantasy and SF, and some romance is much more open to this than other genres. But it is a much longer process, as a good agent doesn't submit to a slush pile, but to the editors directly. An agent with a good reputation can make a big difference. But some writers will tell you it's more difficult to find an agent to represent one's work than a publisher to publish it. That said, just as all publishers are not created equal, the same is true with agents. Some agents can hurt an author's career rather than assist it, if for no other reason than they don't have access or proper access, and simply stall an author from getting a work considered, until that author moves on to another agent--or worse. For example, often a work gets only one chance with an editor.
     
  5. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Your questions have been answered, so I won't go through them all again, but I will add a couple things:

    The agent is representing you. He or she wants to get the best deal from the publisher possible, because a better deal for you means a better deal for him/her. And the agent should be knowledgeable about what sorts of deals are happening from publishers for books similar to your's and authors with your background, etc. So, for the most part, you would not be negotiating major things with the agent himself. The agent gets some percentage of what you get from the publisher, and that's probably the only thing you'd consider negotiating. But again, if this is a reputable agent, who has other clients, and the agency has represented lots of authors, they probably have a standard percentage that's not very negotiable.

    As far as attorneys -- an attorney who doesn't know what he or she is doing is worse than not having one at all. As far as having one review publishing contracts, etc., it's not worth it at all unless you have an attorney who is experienced in literary and publishing law. To get a good one, it could be fairly expensive, and if you have a good agent, it might not be worth it if you're a "typical" author with a "typical" book -- i.e. unless you have some particularly sought-after story, where slight variations in contracts could mean millions of dollars. But for most of us, that's not going to be the case. It would be more important to have a literary attorney if you did not have an agent and were doing more things on your own. So, unless your spouse has a lot of experience with publishing contracts and knows the publishing business, that isn't going to help you a whole lot. Certainly he or she can't take on the same role an agent would, because agents are knowledgable about the business now, and are in the best position to get you a good deal. You can have your spouse read the contract before you sign it, and any questions he or she has while reading it, you should be able to answer, or you should ask your agent for the answer. Most contracts, although they can be long, and can seem to contain excessive verbiage, can be understood if you read them slowly and carefully. The object of a contract is to clarify the rights and responsibilities of each party. The advantage of having an attorney who is familiar with the industry review it is that he or she can read it quickly and will know if something is outside the norm. But for many of us, if we have a good agent, we don't need an attorney to review it for us, as well. But again, if you do want one, it's only worth it if you have someone who practices in this particular area of law.
     
  6. madhoca
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    madhoca Contributing Member Contributor

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    It's so hard to find an agent, I wouldn't worry about stuff like this too much. Just don't sign anything you are not sure about, and never pay them anything simply for them to represent you--they are supposed to make money by getting their percentage when your work is published. What genre do you write? Magazines accept submissions without an agent, and the only time I had a novel published, I submitted direct to the publisher. I'll do the same thing again in a couple of weeks with the novel I'm finishing now.
     
  7. swhibs123
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    swhibs123 Active Member

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    Just wanted to reiterate one thing, Garball, if you go the direct to publisher route, you should absolutely get a IP lawyer who is experienced in the industry to read the contract. 100%. Do not think it's not important. It is. There can be a blind haze that forms when you get an offer and you might not see something. Pay the hundred and fifty bucks and have it looked at. There are a few literary agents who are lawyers who do some freelance work on the side and will advise non-client authors about contracts. I would use one of these kinds of lawyers, b/c literary contracts would be their world.

    I'd never, ever, ever, go the direct to publisher route without someone in my corner when it came time to sign contracts. I have seen first hand how damaging a bad contract can be. Luckily it worked out for me, but I know so many others who have literally had their careers ruined by bad contracts.
     
  8. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Yes, if you don't have an agent, you really should have a lit attorney review any contracts.
     
  9. Jhunter
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    Jhunter Mmm, bacon. Contributor

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    I found this book to be invaluable. It is updated now with the current times as well. It has entire sections on just agents, contracts and copyrights.

    http://www.thebookdoctors.com/our-book

    The first part is a pseudo how-to book, but it's more of a textbook. I don't really know how to classify this--they don't really ever tell you how to write, so I guess it's more of a philosophical how-to book (in the beginning). But the last 85% is just a massive resource guide on the business side of writing, that has been updated for e-Books, social media and such.
     
  10. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    Are agents lawyers?

    ...some are... most are not...

    Do you need a lawyer to review contracts?

    ...it would be wise to have an attorney go over any contract before signing it...

    How do you negotiate deals with agents?

    ...don't know what you mean... there are no 'deals' with your agent... you agree to have her/him represent your work and sign an agreement to that effect... you either accept their terms, or you don't... i don't know what there would be to negotiate...

    Who follows up on deals agents make with publishing houses?

    ...can't tell what you mean by 'follows up'... the agent doesn't make the deal, the author does... the agent only 'negotiates' the deal on behalf of the client/author, to get him/her the best deal possible...

    If you have an attorney (as a spouse) do you need an agent?

    ...anyone can act as an agent, but not everyone can be successful at it... just being an attorney won't give the spouse the connections with editors at publishing houses that makes for an effective agent... nor will it mean the spouse knows anything at all about how the publishing world works...

    Do you haggle with agents for commission or is it industry standard?

    ...no... see above... you either accept their terms, or not... industry standard is 15% for domestic and upwards of that for international representation...

    When/ how do you copyright your material?

    ...you don't... all material is automatically copyrighted as soon as you complete it... the only thing done after that is to register the existing copyright with the library of congress [if in the US] or the british library [in the UK]... or whatever government body oversees copyrights in your country...

    If an editor augments your work, do you retain ownership of material?

    ...of course... that is, unless you enter into a contract for co-authorship, if the ms needs significant rewriting...
     
  11. swhibs123
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    swhibs123 Active Member

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    Well, there are some things you can negotiate. i.e. when the contract can be terminated (30 days, 90 days, 1 year); how funds are dispersed (does the publisher pay you and then you pay the agent, does the publisher pay the agent and then they pay you, does the publisher split the payments on their end... etc etc), Is the contract for one title, or all titles? Plus there might be non-standard language in the contract and that should be discussed.
     
  12. swhibs123
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    swhibs123 Active Member

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    Also wanted to say that Writer Beware will review contracts and give their opinion on them if you want. It's not legal advice, it's just an opinion from someone experienced and dedicated to looking out for authors. Highly recommend it! (It's free, btw). I don't mean that you should use it in place of legal advice, just in addition to it, or before you get the legal opinion. They can also tell you if they've had complaints about agents or publishers from other writers.
     

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