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Literary Agency Contract Alert

A message from the SFWA Board of Directors:

SFWA has received the following alert from the Romance Writers of America, which they have distributed to their membership.

Note that while the warning from RWA only refers to "at least one agency", members of SFWA have heard unconfirmed reports that some other agencies may also now be attempting to insert this same type of clause into their clients' book contracts.

The lesson is clear: no matter who your agent is, check your contracts before signing.

Following is the text of the RWA alert:

"RWA has recently learned that at least one major literary agency has inserted in publisher/author contracts negotiated by the agency a clause which we feel could be detrimental to authors.

This clause is a deviation from agency norms. It appoints the agency "as the author's sole and exclusive agent with respect to the work for the life of the copyright (and all renewals and extensions thereof) and authorizes and directs the publisher to make all payments due or to become due to the author."

It additionally states that as sole and exclusive agent, the agent is "hereby irrevocably authorized and empowered by the author to act on the author's behalf in all matters arising from and pertaining to this agreement . . ."

Traditionally, this clause has appointed agencies/agent as the sole and exclusive agent for the life of the agreement, not the life of the copyright.

What does it mean to the author?

It means that even if you leave that particular agent, and the rights to your book revert back to you from the publisher, you will still be obligated to pay that agent a commission for as long as the copyright lasts (copyright of a work generally lasts for the life of the author plus an additional seventy years). This includes foreign sales, movie sales, or resale of the book, even if the agency does nothing to cause that sale. It could mean you will be paying two agency commissions, which could amount to thirty percent or more. This also would apply to the author's heirs.

We have been informed that this clause is being inserted into some contracts without notification to the authors with whom the agency has established fiduciary relationships.

This situation highlights just how important it is for authors to scrutinize their contracts, particularly the agency clauses.

It seems particularly ironic that while many publishers are moving toward more author-friendly agreements, an agency, which should be protecting its authors, would move in the opposite direction.

We are contacting the agency at issue and requesting that they remove this clause in contracts they negotiate or, at least, that the implications be explained to their authors (that even if they leave the agency, and rights from the publisher are reverted back to the author, they must still pay this agency a commission for up to seventy years or more for resale of the book, foreign sales, movie sales, etc.)

While we want to alert our authors about the clause, we also wish to emphasize that we are not advocating action on the author's part. Every writer should have the freedom to negotiate in his or her own best interests and make their own individual determination and evaluation regarding this clause and all other provisions of contracts being negotiated."'

Posted January 31, 2004

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