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January, 2008

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Author/Agent Contract
Legal primer and checklist
By  Tad Crawford

The contract legalities of writing and publishing can be complex and confusing.
n agent can be of immeasurable value to an author. Instead of seeking assignments, the author can devote full time to creative work and trust that the agent will provide marketing impetus.

The cost to the author is the agentís commission, which is usually 10 to 15 percent, but the hope is that the agent will enable the author to earn more. The agent may have better contacts and be able to secure the largest amount of income by placing work with the right publisher.

The paragraph numbers below refer to the contract form included in the book, Business and Legal Forms for Authors and Self-Publishers.

Negotiation Checklist

Limit the scope of the agentís representation by geography and types of markets, including coverage of electronic rights. (Paragraph 1)

State whether the representation is exclusive or nonexclusive. (Paragraph 1)

If the agent uses other agents for certain markets (for example, for foreign sales or film sales), review the impact of this on commissions.

Any rights not granted to the agent should be reserved to the author. (Paragraph 1)

Require that the agent use best efforts to sell the work of the author. (Paragraph 2)

State that the agent shall keep the author promptly and regularly informed with respect to negotiations and other matters, and shall submit all offers to the author.

State that any contract negotiated by the agent is not binding unless signed by the author.

Require that the agent keep confidential all matters handled for the author.

Allow the author to accept or reject any assignment obtained by the agent. (Paragraph 2)

Specify that a reasonable number of writing samples will be supplied to the agent by the author. (Paragraph 3)

Provide for a short term, such as one year. (Paragraph 4)

If the contract has a relatively long term and cannot be terminated on notice at any time, allow termination if the agent fails to generate a certain level of sales on a quarterly, semi-annual, or annual basis.

If the contract has a relatively long term and cannot be terminated on notice at any time, allow for termination if the specific agent dies or leaves the agency.

Specify the commission percentage for assignments obtained by the agent during the term of the contract. This is usually 10 to15 percent of the income, and may reach 20 percent for sales involving other agents.

If expenses are substantial and are not reimbursed to the author, consider reducing the income by the expenses before computation of the agentís commission. If expenses are reimbursed, this should be excluded from income for purposes of computing the commission. (Paragraph 5)

State that commissions are not payable on billings which have not been collected. (Paragraph 5)

In the case of an agent for a book, consider letting the agency do only that particular title or project.

Require the agent to collect royalties and remit authorís share to the author. (Paragraph 6)

Require payments to be made quickly after billings are collected. (Paragraph 7)

Require the agent to treat money due the author as trust funds and to hold it in an account separate from the funds of the agency. (Paragraph 7)

Require the agent to bear miscellaneous marketing expenses, such as messengers, shipping, phone calls, and the like.

If the agent insists that the author bear certain expenses, require the authorís approval for expenses in excess of a minimum amount.

State that the author shall receive a copy of any statements of account received by the agent at the time the author is paid. (Paragraph 8)

Provide for full accountings by the agent on a regular basis, such as every six months, if requested. (Paragraph 8)

Provide the right to inspect books and records on reasonable notice. (Paragraph 9)

Allow for termination on thirty daysí notice to the other party. (Paragraph 10)

State that the agreement will terminate in the event of the agentís bankruptcy or insolvency. (Paragraph 10)

Do not allow assignment of the contract, since both the agent and the author are rendering personal services. (Paragraph 11)

Allow the author to assign payments due under the contract. (Paragraph 11)

Provide for arbitration of disputes in excess of the amount that can be sued for in small claims court. (Paragraph 12)

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The above article is an excerpt from Business and Legal Forms for Authors and Self-Publishers by Tad Crawford (Allworth Press) and is reproduced with permission.

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Consider your mind the darkroom,
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