Science Fiction and Fantasy Writers of America

Posts Tagged ‘agent’

Exclusives and Literary Agents

Friday, July 31st, 2009

Reprinted with permission from Nathan Bransford’s Blog

Becca asked an interesting question about exclusives in the comments section of a post a few days ago, and it occurred to me that I’d never really blogged about these slippery devils. So consider this niche filled, and the FAQs will be amended accordingly.

First off, definition: an exclusive means just what it sounds like. You are giving an agent the opportunity to consider your work exclusively and you are agreeing that you will not submit to another agent until you’ve heard “yea” or “nay” from that agent. Sometimes exclusives are open-ended, sometimes there’s a time period attached.

Feelings about exclusives vary wildly among agents, so please take my feelings as my own and not as any kind of industry standard. There is no standard when it comes to exclusives. It’s a veritable Wild West run by nonconformist anarchists.

I’m going to break down my thoughts on exclusives based on the different stages when they might arise and give you some dos and don’ts along the way:

Query stage: Agents expect that you’re querying simultaneously and widely, and frankly, if they don’t, they should. If you’re querying agents one-by-one I hope you plan to live as long as Methuselah because that’s how long you’re going to be querying. Remember to target your agent search, personalize your queries, and don’t query the entire agent world all at once, but also don’t needlessly slow down your search by waiting on exclusive queries.

Now, you might give your first-pick agent first crack, say…. oh, I don’t know, a certain agent who will get back to you within 24 hours if you submit on a weekday, and you might mention that you’re querying them first, but mentioning that it’s an exclusive is not necessary, and don’t give them forever to get back to you before you move on to the other agents you plan to query.

Partial or full manuscript request stage: Some agents will ask you for an exclusive when they ask for your partial or full. Whether you choose to grant this is up to you, but I would strongly, strongly advise against granting an open-ended exclusive that ties you up forever. 30 days is a reasonable time period for an agent to consider a partial or full exclusively, after which you should feel free to send your manuscript to any agents who have inquired in the meantime (and keep in mind that submitting your partial exclusively does not preclude you from continuing to query other agents, although it does mean that you have to put any agents who ask for a partial on hold until the period of exclusivity is up).

You are within your rights to (politely) decline their request for an exclusive, in which case you may simply write that you would prefer to continue sending your manuscript to interested agents but hope they will still consider your work. Or you can decide to grant it. Up to you. But keep in mind a few things: 1) You can’t grant an exclusive if another agent is already considering your partial or full manuscript (and you should let the inquiring agent know this.) 2) Some agents feel that if they are going to take the time to read a manuscript they want to do so with the understanding that the author is not going to be swept away by another agent in the meantime (thus wasting the time they spent reading that partial), and they may well decline to consider your partial on a nonexclusive basis.

So when faced with an exclusive request, you have a decision to make: possibly alienate the agent or try and keep your options open? That’s a decision only you can make. No matter what you decide though, be exceedingly polite, and always notify any agent considering your work when you have an offer of representation.

Revisions: I don’t generally ask for exclusives at the partial or even full manuscript request phase. But there is one situation when I often will. And that’s during a revision.

It’s very time consuming for an agent to read partials and fulls, although I see it as going with the territory. But a revision with a prospective client takes time-consuming to a whole new level. It means a serious commitment on the part of the agent without a sure prospect of success, it means committing to reading a manuscript multiple times, taking notes, thinking about the manuscript during most waking hours, and for me it means writing 10-20 page e-mails full of suggestions on each draft.

I don’t know if there would be anything more gut-wrenching than to embark on a time-consuming revision to improve the manuscript only to have an author take that improved manuscript to a different agent who gets to benefit from my hours of hard work. Quel horreur! The mere thought of this happening gives me dry heaves.

Fortunately this hasn’t actually happened to me, but just to make sure we’re all clear what a full manuscript revision means, I often ask for an exclusive before embarking on a revision, and I think this is fair. When the author is done, if either of us aren’t happy with the manuscript or how we’ve worked together in the process then we’re still free to go our separate ways, but while we’re working on that revision we’re going steady, pinning each other, and any other serious dating metaphor you can find. If we are happy with the manuscript at the end, then it’s time to move on to formal representation and submissions.

Ultimately, the thing to remember about exclusives is that agents mainly ask for them for peace of mind and efficiency. Agents are busy and they want to know that when they are reading something they don’t have to worry about having an author swept out from under them and having that time wasted. But they aren’t always advantageous for an author because they can limit an author’s choice and stall the process.

Be selective about how you grant exclusives, and make sure there’s a time limit affixed.

Tags: agent
Posted in Agent Etiquette, Information Center, SFWA Blog, The Business of Writing | 1 Comment »

SFWA Model Author-Agent Contract

Monday, July 6th, 2009

This contract was written under the direction of the SFWA® Contracts Committee. The model or sample contracts have been written as a guide to writers in understanding common publishing contracts and to help them negotiate better contracts. They are not intended to be used as boilerplate contracts by publishers, writers, or agents, nor should such use be cited as being SFWA approved. These contracts have been written by writers for writers, and are for educational purposes only. As with any legal document, you should consult a lawyer for exact interpretations of law. Advice herein is not intended as legal advice or the practice of law. Some model or sample contracts are badly in need of revision or updating. As part of its ongoing efforts to educate writers about publishing contracts, the Contracts Committee periodically writes new sample contracts or updates old sample contracts. Address comments or suggestions to the Chair, SFWA Contracts Committee.

Revision 2.1

20 August 1996
As author-agent contracts don’t seem to be a one-size-fits-all item, a few alternative contract clauses are included in this draft, accompanied by italicized comments. — John E. Stith

PRELIMINARY STATEMENT. This agreement (the “Agreement”) dated [date of signing], sets forth the relationship between [author's name here] (the “Author”), also published under the name(s) [pen names here] and [name of literary agency Here] (the “Literary Agent”).
1. LITERARY AGENT REPRESENTS AUTHOR. For the term of this agreement, the Author hereby retains the Literary Agent:

(a) To represent the Author for the sale of the following works (”Represented Works”), written or to be written by the Author and not covered by a prior unagented sale or prior agency agreement: (1) all full-length fiction, and (2) any other writings that Author and Literary Agent may agree upon.

(b) Subject to the Author’s approval, to negotiate sales (”Represented Sales”) of (1) Represented Works in the U.S., its territories, and Canada (”Domestic Sales”), (2) Represented Works in non-domestic markets (”Foreign Sales”), and (3) derivative or secondary rights in the Represented Works (such as film, TV, recording, or other dramatic media) anywhere in the world (”Subsidiary Sales”).

(c) To receive payments and royalties from all Represented Sales as long as the contracts for such sales remain in force.

Author attests that, during the term of this Contract, the Author will employ no other Literary Agent to represent the Author for the Author’s Represented Works. It is acknowledged that some of the Author’s backlog may be excluded from this contract because it is covered by a prior agreement with another agency. {Some authors prefer to have separate film agents. Whichever way you go, the decision should be clear to both author and agent.}

2. CONTRACTS. Literary Agent shall use best efforts to promote the Author’s Represented Works. No proposed Represented Sale shall be binding unless approved by the Author in a signed contract (a “Represented Contract”). Author may, in writing, authorize Literary Agent to sign contracts on his behalf. {Authors might want to provide a limited authorization that lets the agent sign only foreign contracts or sign only contracts the author has verbally approved.}

3. AGENT’S COMMISSION. The Literary Agent shall be entitled to a commission (”Agent’s Commission”) equal to X percent of all Domestic Sales, Y percent of all Subsidiary Sales, and Z percent of all Foreign Sales. {While authors would like these commission rates as low as possible, we recognize that agents would prefer them as high as possible. A number of agents charge 10 percent for domestic sales, 15 percent for subsidiary and 20 percent for foreign, and obviously these rates play a part in the determination of whether a particular agent is the one to sign with.}

4. SUBSIDIARY RIGHTS. Subject to Author’s reasonable consent, the Literary Agent shall engage all subsidiary or co- agents which the Literary Agent believes best represent the Author in Foreign Sales.

5. EXPENSES BORNE BY LITERARY AGENT. From the Literary Agent’s Commission, the Literary Agent shall pay (a) all subsidiary or split commissions required by foreign or subsidiary agents, and (b) such other costs, listed in the attached Rider, as Literary Agent may incur in promoting or selling the Author’s Represented Works. The Literary Agent shall not be reimbursed for such expenses and need not account for them to the Author, except that the Author shall reimburse the Literary Agent for unusual expenses, incurred by the Literary Agent with the Author’s prior consent, for the Represented Works. {This phrase is the best case for the author, but it’s just another component of the give and take between author and agent, and should be factored into the projected agent commission when comparing two otherwise equal agents. Often, the agents charging higher commission rates are willing to include some expenses in their commission. Just be clear on what you’ll be expected to pay for, and if you can, limit additional expenses to those applicable to works actually sold.}

6. DISBURSEMENTS. On behalf of the Author, the Literary Agent shall collect all payments due the Author under any Represented Contract (”Author’s Payments”) and shall, within ten days of the funds clearing, disburse the amount of such Author’s Payments to the Author, less any Literary Agent’s Commission and less any mutually approved expense charges.

7. STATEMENTS. In January of each year, the Literary Agent shall provide the Author with an annual statement showing all Author’s Payments, Agent’s Commissions, and other itemized deductions for the previous calendar year. {Not all agencies do this, but it’s desirable for the author. The minimum notice consists of an IRS Form 1099 that identifies the total payments and total commissions.}

8. NOTICES. The Literary Agent and Author shall promptly send each other copies of (a) any legal notice under any Represented Contract, (b) any important communication from any publisher under any Represented Contract, and any material correspondence.

9. TERM. This contract may be terminated voluntarily for any reason by either party upon thirty days’ prior written notice to the other, detailing causes for termination, sent via certified mail, return receipt requested, to the addresses below:

If to Literary Agent, at [Literary Agent's address]

If to Author, at [Author's address]

or such other address as either party may designate in writing to the other.

After termination, the Literary Agent shall continue to administer Represented Contracts which the Literary Agent negotiated while this Contract was in force, and retain Agent’s Commission on those Represented Contracts. The Literary Agent may make no further sales of the Represented Works.

10. CONTACTS. Mail sent to the Author in care of the Literary Agent may be opened by the Literary Agent and dealt with, unless it is apparently of a personal nature, in which case the Literary Agent shall forward it to the Author promptly. When the Author is approached directly by any party interested in the Author’s Represented Works, the Author shall inform the Literary Agent immediately and refer the party to the Literary Agent.

11. AMENDMENT. This Agreement contains the entire agreement between the parties hereto. It supersedes any prior agreement, and may be amended in writing by mutual consent.

Many authors already have an existing written or handshake agreement with an agent and may not wish to impose most of this sample contract. Since many standard contracts and handshake agreements don’t define how termination is handled, authors might consider using section 9 (TERM) as a rider to an existing contract or as a separate agreement. Many agencies use their own contract, and there’s certainly nothing wrong with that. We recommend, though, that you use this model as a guide to remind you to make sure terms you feel are important are addressed satisfactorily in whatever contract you do sign.
The above items represent the consensus of the then-current SFWA Contracts Committee: Michael A. Armstrong, Damon Knight (who has since left the panel), David Alexander Smith, and John E. Stith. In addition, Michael A. Armstrong and Damon Knight recommend authors include the following in the TERM clause:

– JES, 8/20/96

Tags: agent, business, contract, literary agent, representation
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Hunting for a Literary Agent

Tuesday, January 4th, 2005

Written by Chuck Rothman

Index

1. What is an agent and why do I need one?
2. When do I need an agent?
3. How are agents paid?
4. Where to I find information about agents?
5. How do I choose an agent?
6. How do I contact an agent?
7. How do I create an outline and sample chapters?
8. What happens if I don’t get an agent?

1. What is an agent and why do I need one?

   An agent is a writer’s business representative. His job is to market your book, negotiate a deal with the publisher, keep track of rights sold, and generally handle the business end of things so that the author can concentrate on writing.

   You may not need an agent. If you write poetry, or short fiction, or articles, you don’t. Agents only handle book length manuscripts — fiction and nonfiction. It’s not worth their while to handle shorter works.

   Even if you write books, you may not need an agent. There are two main advantages that an agent can offer you when it comes to marketing:

   • A good agent knows what editors are looking for. He can target your manuscript more effectively; an author has to send it out hit or miss, wasting time on editors who are overstocked and missing windows of opportunity. Generally, it will take a good agent less time to sell a manuscript than it would take if you did it yourself. However, if the agent can sell the novel, there’s a good chance you can sell it, too. Conversely, if the novel is no good, no agent is going to be able to sell it.
   • Many publishers don’t accept unagented submissions. Or, more commonly, they allow an agent to send the entire manuscript, while limiting unagented submissions to outlines and sample chapters. You’re more likely to sell if the editor reads the entire book.

   The main advantage of having an agent is not in marketing a novel; it’s when you find a publisher willing to publish it. A good agent is an expert in negotiating contracts. She knows what clauses to ask for, which are harmless boilerplate, and which seemingly innocuous ones are invitations to disaster. A good agent will know how to get you the best possible deal. Unless you are in the publishing industry, it’s unlikely you’ll be able to negotiate a contract that gets you the most money possible while protecting all your rights.

   (Some people think that a lawyer can replace an agent when it comes to this. However, few lawyers specialize in the type of contracts publishers use. In the words of editor Patrick Nielsen Hayden of Tor Books, every time an author used a lawyer to negotiate with Tor, the author was left “skinned and bleeding.”)

2. When do I need an agent?

   The first thing you need to do is write a book-length manuscript. Unless you have the book in hand, an agent won’t be interested. He needs something he can see; without a manuscript, there’s no knowing if you can write anything that’s worth the agent’s time to try to sell.

   When the manuscript is done, you can start contacting agents. But don’t let the search for the agent get in the way of your search for a publisher. You’re perfectly welcome to start marketing the book yourself, if you want. It’s up to you.

   If you do send the book out, and get a call from the publisher that they’re interested, this is the perfect time to find an agent. Indeed, some publishers will even recommend you get an agent before there’s any negotiation; they’d much rather deal with a professional. It’s said that, if you do get the call from a publisher, you automatically say, “I’ll have my agent contact you” — whether you have an agent or not. If you call agents and tell them about the offer, they will often jump at the chance to take you on. After all, it’s a quick way for them to make a buck. The hardest part has been done; all they have to do is negotiate a contract, which means they (and you) will be paid in a couple of months, not several years.

3. How are agents paid?

   Agents are paid by publishers. Usually, when they sell your book, the check is written out to the agent. The agent then takes his percentage of this amount and sends you the remainder. Most literary agents nowadays take 15% of any money paid you; a few still stick with the old rate of 10%. (Screenplay agents are required to only charge 10%.) If the agent sells your book to a non-North-American publisher, they usually take 20%, since they often work through a subagent.

   Some agents also pass through charges for expenses to their authors. This can happen in different ways. Most commonly, an agent will pass along charges for “extraordinary” expenses. These include charges for such things as Express Mail, Special Couriers, and other items that are not the usual part of doing business. Regular postage and copying costs are not extraordinary. Agents generally deduct these expenses from any money due you. In other words, if you’re paid $1000 for your novel, and the agent spent an extra $15 for Federal Express, you’d be paid $835 instead of $850.

4. Where to I find information about agents?

   There are many sources, of varying degrees of reliability. The best is to ask a published writer about her agent. If the writer likes the agent, ask if the agent is taking clients. If so, contact the agent.

   Writer’s Market and Literary Market Place list agents in their yearly volume. Check out the agent entries, looking for people who represent authors in your field of writing. Look for names of clients and recent sales.

   You can find ads for agents in Writer’s Digest. However, many of these are for sham agents who take money and do little to advance your career. I would strongly urge you to look elsewhere. Good agents don’t take out ads to find clients.

5. How do I choose an agent?

   This is the hardest question to answer. Anyone can call herself an agent. Scams are common; the pages of Writer’s Digest are filled with people who claim to be literary agents, but who have never sold a book in their life. Even among legitimate agents, one agent may be perfect for you, but all wrong for someone else.

   The first step is to eliminate the scams. The quickest way is to stick to one invariable rule:

   Never, under any circumstances whatsoever, pay money to an agent.

   If you follow this, you automatically eliminate the frauds. A fraud is out to get your money. A few years ago, scam agents charged “reading fees.” Lately, as word has slowly gotten out that this is the sure sign of a ripoff, the same agents are charging for “expenses.” Sound plausible, but the reality is that legitimate agents don’t ask for money in advance for any reason.

   If you send money to an agent in advance, there’s no guarantee she’ll do anything other than cash your check. A legitimate agent doesn’t get paid unless she sells your novel; a fraud isn’t going to go to the bother.

   Other signs to be wary of:

   • Agent asks you for money up front. Yes, I know I just said this, but it bears repeating. Do not pay any agent, and especially don’t pay anything in advance merely to have him represent you.
   • Agent won’t give you the names of his clients and recent sales. Always ask for this. A legitimate agent is all too happy to recount his successes; most send out press releases whenever they sell a book. A fraud won’t tell you (usually citing “confidentiality”), because it gives you a handle to track him down (and because he often has no recent sales).
   • Agent recommends an editorial service. Be very wary here. Real agents either like your manuscript or pass on it; if it’s close, they may ask you to revise it yourself. There is, however, a common scam where the agent recommends an editorial service. There’s a good chance the service is paying the agent a kickback to make that recommendation. (Note: probably the most notorious of these editorial services is a place called Edit Ink. Don’t even consider any agent who mentions Edit Ink.)
   • Agent has contacted you. Agents don’t need to go out of their way to find clients. But it’s quite common for frauds to buy mailing lists of writers and go fishing. Unless you have published something, or otherwise have a reputation as a writer, no real agent is going to contact you out of the blue.
   • Agent’s contract has a time limit. Agents used to work on a handshake basis, but nowadays even good agents often have contracts. But legitimate agency contracts are open ended: the continue until either party decides to quit. Frauds set a time limit, since this allows them to ask you for a further fee for “expenses” or “representation.”
   • Agent claims sales to a vanity press. A vanity press is one where the author pays to be published. No real agent would even consider sending a manuscript to one (how could they make any money, if the publisher isn’t going to pay?). Some agents do recommend vanity presses, most likely because they are getting kickback from the press (how else do they get paid?)
   • Agent asks you to put up your money in advance. What I tell you three times is true.

   If an agent does any of these things, go somewhere else. There is little chance any agent who has these policies will be any help at all to you, and could do great damage to your career — with you paying for the privilege of having them ruin you. It’s just not worth it.

   For more information about how agents work, check out this article by Dan Perez.

6. How do I contact an agent?

   Once past this hurdle, the question becomes one of nuances. Does the agent seem interested in having you as a client? Does she have some sort of vision for your career? What do her other clients think of her?

   Most agents do business by mail (a few by e-mail). The first thing to do is to send a query letter. The query letter should introduce you to the agent. Explain that you are looking for representation for your completed book. Describe the book in general terms (i.e., it’s a science fiction novel), but don’t summarize the plot. Mention any publishing history (if you have one, if not, say nothing) or any background information that might indicate a relevant area of expertise (if there’s nothing directly relevant, leave this out, too). Keep the query letter short (if it’s more than one page, it’s way too long). Be sure to include a self-addressed stamped envelope for a reply. Send it off.

   A question that crops up is whether you can query several agents at a time. It all depends on what you’re comfortable with. It’s generally acceptable to send off multiple query letters, so if you want to go that way, do so. However, once an agent asks to see your manuscript (or more likely, sample chapters and an outline), you should send it to that agent alone, and to none other until he says yes or no. If you get a second request, wait until you hear back from the first agent before sending it along (it isn’t necessary to tell the second agent it’s out somewhere. Just say nothing until you’re ready to send it to her).

   Incidentally, your agent hunt can be separate from the hunt for a publisher. You can send the book out to editors while agents are deciding; if the book sells, call the agent who is currently considering it. Note, however, that an agent often wants to market the book from scratch, and has a slight preference toward a book that has yet to be rejected.

7. How do I create an outline and sample chapters?

   These are essential to selling a novel. Most agents (and publishers) want to see these instead of a full manuscript (note: if at all possible, it’s best to find a way to send a full manuscript. But be careful: doing this when the agency/publisher doesn’t allow it may mean that your book will not be read. You can break this rule, but be prepared to suffer the consequences).

   The sample chapters are always the first chapters of the book. Usually the first three, but if you’re writing extremely short chapters, send the first 50-60 pages (don’t stop in the middle of a chapter). The idea is to give the editor/agent an idea of your ability to write.

   An outline runs around 20 pages and describes the action in the book. It is usually written in the present tense (our hero kills off all the soldiers, but the princess is kidnapped by the Grand Vizier). Include any particularly important lines of dialog and all important scenes as you lay out the plot and all subplots.

   Some agents prefer a synopsis to an outline. This is shorter (5 pages) and is more of an overview. Needless to say, either your outline or your synopsis must be well written and interesting.

8. What happens if I don’t get an agent?

   There’s no reason you can’t market your novel yourself. There are a few hurdles, but it’s eminently possible. It isn’t the end of your career, so just keep on plugging. Sooner or later, it will click for you.

Tags: agent, Chuck Rothman, Intermediate, Rothman, writing
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