Thursday, May 16, 2013

Who does your contracts, baby?


A savvy writers conference attendee recently asked me what questions I wish people would ask when I offer them representation, and it really got me thinking. Most writers know to ask the important questions related to the creative process: What do you like most about my book? What parts of my book do you think need work? What’s your agenting style?

These are all great questions, but signing with an agent is ultimately about much more than your manuscript. You’re interviewing someone who will be overseeing a significant part of your career, including your money. It’s a business. And while the whole making-money thing may seem like a long way away when you receive an offer of rep, it’s never too soon to start thinking about it. So what’s one question I wish writers would ask for their own benefit? Here’s an easy one: Who does your contracts?   

Don’t make the mistake of assuming that someone has an in-depth knowledge of publishing contracts just because they call themselves a literary agent. Most literary agents aren’t contracts lawyers. (Some are, and if your agent is, fantastic!) Good agents, lawyers or not, know how to read and negotiate a publishing contract because they apprenticed in the business, learned contracts 101, and have been successfully using and growing that knowledge base for years. But not all agents have the same depth of knowledge or breadth of experience with contracts. When it comes time to negotiate your first publishing contract, a rudimentary, working knowledge isn’t (or shouldn’t be) enough. Whether it’s your agent, your agent’s colleague, or an attorney, your contracts person’s expertise, experience, and reputation in the business are key to getting you the best terms possible (we’re not talking about your advance here—it’s all about the fine print).

Every agency has its own boilerplate contract with each publisher. More established agencies that have long histories of selling successful books to and negotiating good contracts with each major publisher will have stronger boilerplates at those houses. If you're with a newer agency, you need someone on staff who's experienced enough to elevate your contract from the basic boilerplate. Your agency, the way your contracts are handled, and by whom, all make a big difference in your bottom line as an author.

Some agencies retain an attorney who specializes in publishing law. (Side note: there’s nothing more annoying than when an attorney who doesn’t know anything about publishing tries to review a publishing agreement.) In this ever-changing business, publishing agreements are constantly in flux, and in my opinion, it helps immensely to have extra legal expertise in-house in addition to my colleagues’ collective decades of contracts wisdom. What does that mean for my clients? I think it means stronger contracts, which, in the long run, means more money in my clients’ pockets.

Can you get a good contract without a contracts attorney on staff or without your agent being a lawyer? Absolutely: many well-established agents without law degrees know a ton about contracts, and anyone would be lucky to have them as an agent. Should you know who handles contracts at your agency? Yes. If it’s your agent or one of your agent’s colleagues, what kind of background do they have in contracts? If they’re a newer agent, is there someone working with them to help them learn the ropes? If they’re a newer agency, do they have anyone on staff who came from a more established agency? Having a love connection over your manuscript with an offering agent is great, but when you have that phone call, don’t forget your due diligence on the business side as well.

4 comments:

  1. Really great explanation! Thank you.

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  2. Good to know! I'll add this to my list of questions I've been making should the agent with my MS make an offer. *fingers crossed*

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  3. I've actually asked that question ("What do you wish prospective clients would ask you?") several times, and never heard this answer. So good to know!

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  4. Thank you! I'm about to begin querying and would never have thought to ask about this.

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