As most of you know, writing fiction is not my only a career. I also maintain a boutique (code word for small) legal practice that specializes in representing entrepreneurs, authors, publishers, film producers, directors, and screenplay writers. Basically I work with people who create things for a living. Some create new businesses, fashion lines, clothes, books, films, and TV shows, but the one thing they all have in common is that they create! They are creative people who have the talent and force of will, perseverance, and discipline, to bring forth something from an idea that once only inhabited their mind.
Truly, I am blessed. I have clients that I love working with. And because my practice is small, I can be selective with regards to the people with which I choose to work. I understand my clients’ goals and needs based not only from my perspective as a creative individual, but also by working as an agent in film and TV and negotiating subsidiary book rights for film and TV as well as contract negotiations. My practice grew organically from my experience in both publishing and entertainment as well as business law. I feel a deep responsibility to my clients. Often times I am the person they turn to so that I can negotiate their deal, and also to explain to them what is going on with regards to contracts they are considering with regards to their work.
When working on a publishing contract for a client, I spend hours going over client contracts. I redline the document and I then spend a minimum of one hour on the phone with my clients going over what I think are deal breakers, challenges, pit falls, areas that need to be changed. Please keep in mind I never charge my clients to speak to me. I took this away from agenting. I want my clients to feel like they can be on the phone asking me questions without the pressure of thinking, ‘oh my god I just spent 75.00 on a phone call.’ Nope, my clients can speak to me as long as they need and ask me as many questions as they want and they won’t see those conversations on their bill.
Back to my point.
I spend a great deal of time going through publishing contracts for and with my clients, so imagine my SURPRISE and HORROR when I discovered from a publisher that they have NEVER gotten a thorough red-lined contract from any agent with which they’ve worked. And this included some MAJOR heavy-hitting New York agents.
What? Never? What????
In fact, the only time they’d even heard of an agent red-lining a contract was my very own agent Kristin Nelson (Oh my goodness, thank you Kristin!)
How can this be? Is it possible big New York agents aren’t red-lining contracts? They aren’t asking for what their clients want and need? They aren’t negotiating for their clients? Are they trying to get reversions, new definitions on OOP? Limiting the term? Is it possible that agents aren’t reading their clients contracts? Are they simply skimming the contract offered, telling their client to sign, and then handing the contract back to the publisher?
I don’t know the answer to my question, but I do know that I was recently told by a publisher that they’ve never had an agent request changes to their standard contract. I do know that I always request changes on every contract because I’ve yet to see one that benefits my client in EVERY WAY POSSIBLE. I do know that there are publishers who will not negotiate their standard contract, but I still must go over that contract with my client, and publishers who choose to have completely non-negotiable contracts are not standard. I do know, that I believe, it would be a breach of my fiduciary duty NOT to redline a contract and NOT to go over the pitfalls of the contract with my client. I believe strongly that a good agent, in publishing, should do the same and if they can’t or won’t, then you, the author must find someone who can and will. You have a duty to yourself, your work, and your career to make certain that you understand every contract you sign. Ask every question you want and get all the answers you need. Do not accept, dear author, anything less.
I’d love to hear your thoughts.
xoMaggie
DISCLAIMER
I am a lawyer, but nothing you will read here is legal advice. You obtain legal advice by hiring a lawyer.
Maggie,
I agree. My agent that negotiated my trilogy was SO BAD that I found myself fighting her more than the publisher to get to keep my rights. “Nah, you don’t need your movie rights!” And so forth. I had to fight and literally darn near re-write the entire publishing contract because not only was it poorly written, it was essentially screwing me as the author from work I had slaved over for the last 7 years.
Because I, too, work in the legal field, I was able to negotiate and re-write the contract myself, but before I did I actually tried to contact an entertainment lawyer and they wouldn’t even look at it for less than $5,000 which (sadly) was more than my advance.
I think authors in this day and age are truly behind the 8 ball when it comes to contracts and keeping their rights because of the flood of “published” books out there to anyone who owns a laptop.
Just my thoughts.
Michela
Michela,
This is shocking to me!
Not long ago, subsidiary rights were a bright line in the sand that the former Big 5 would NEVER try to take without remuneration. I’ve watched that line move. I believe an author should retain all subsidiary rights in their contract. I know many publishers will take out language that eats away at sub rights if pushed. I think the thing authors should remember is all things are negotiable! And, you can’t get what you don’t ask for. Ask! Ask for what you want!
But your comment, again, shows me that what I’m hearing is much more common than I would have ever guessed. I made the erroneous assumption that if an agent didn’t feel confident with regards to negotiation or red-lining a contract that the agent, at least had an attorney they worked with that would redline the contract and discuss potential changes with the client. Nope. I’m hearing, that isn’t the case.
xoMaggie
I’m not too surprised. The last contract I got I read and it had a very restrictive non-compete clause that was not ever mentioned to me. I found it myself and refused to sign and as a result, the deal went South. (Clearly not very many challenge this clause.) But it would have tied me up for over three years for very little $$$ and I could not allow it. My agent seemed a little surprised that I didn’t want to sign it and I think she saw me as difficult for not agreeing. After that she didn’t want to shop it anywhere else.
Oh, no! The restrictive non-compete! YES, is always on my list of things to check. There are a couple of things that are ‘deal breakers’ in my opinion, but keep in mind what I think is a deal breaker isn’t always a deal breaker for a client….and that is FINE! Where I would be remiss, would be by FAILING TO TELL MY CLIENT all the potential pitfalls in a contract. Like what happened with you! Thank goodness you READ the contract and FOUND THIS YOURSELF! But here is the thing, THAT is what an author pays an agent to do, is it not? And if the Agent isn’t warning you about all the potential problems with a contract, shouldn’t they be pointing you in the direction or working with someone who can?? In my opinion, you were not being difficult, you were being a smart business woman.
xoMaggie
My agents have always gone over the contract with me, made changes, and gotten back to the publisher. I’ve also had the Author’s Guild Legal Department help me out. Boilerplates are bad! I didn’t always win, but at least you need some give and take.
I did use a regular lawyer for a script based on a book once but didn’t have much wiggle room. Probably why self publishing has risen so much.
Leslie,
And that is a solid agent! Right? The person who will take the necessary time to outline for you, the client, what the challenges in the contract are, what you are giving up, and if you are okay with what you are giving and what you are getting.
xoMaggie
You bring up such important points, Maggie. In so many creative arenas, including the film and TV industry, writers/authors are continuously bearing more of the risks and enjoying less of the rewards. Remember the development deal? When a writer pitched an idea and was paid to invest their time writing the script? Now creatives are expected to produce everything (books, scripts, entire films) on spec, then turn them over to the studio or publisher for little or no compensation unless and until the project “hits.” Agents are the thin line of protection around a creative whose material is so desirable the more powerful entity is willing to negotiate, and it is dismaying to hear that so many agents are not even performing that function. If authors are so powerless and unprotected, the argument against becoming one’s own publisher is getting harder and harder to make.
Kady,
Yes, the marketplace is tough! I will say one of the things I loved about being part of ICM which is a BIG agency was that while, as an attorney, I always felt comfortable and confident negotiating and going through contracts, ICM also had a business affairs department with attorneys who specialized in red-lining contracts. Therefore any agent who didn’t have a law degree would send the contract through business affairs to be vetted by an attorney. What I am REALLY disheartened by is finding out that BIG agents/agencies in the publishing industry are not only failing to redline contracts themselves, but they don’t send the contracts to anyone else to do so either! No business affairs! If you aren’t going to red-line/go through a client’s contract you better find someone who can and will. Agents have a fiduciary duty to their client to advise them and if an agent isn’t reading and/or understanding the challenges to their client’s rights in the contract then they sure as heck aren’t advising their client well!
xoMaggie
Well, that’s a horrifying thought that many agents don’t carefully review and then try to re-negotiate unfavorable terms for their clients. In the alternative, having used your wonderful contract review services, I know what a generous and smart advocate you are for your clients. I’m grateful there are professionals like you out there. Thank you!
Allison,
You are very kind! Actually, I’m just as lucky to have smart and talented clients. I was just a bit…gobsmacked. I’ve been spoiled because my agent is SO THOROUGH! And, I will say, I am thorough too. I thought this was the standard, I want it to be the standard, because authors, creatives, we all work too long and too hard not to be well-protected!
xoMaggie
Wow. I’m shocked, too … and horrified. I know for a fact that my agent has full time staff whose job it is to go over every contract, and that they scrutinize each and every word. Naturally, there is often quite a bit of back and forth before the final contract is sent to me. And “final” doesn’t mean I can’t make changes if there’s anything that still seems objectionable to me.
It’s inexcusable that there are many agents who can’t be bothered with the fine points of a contract!
That said, I wonder if the publisher was being a little cagey with you. I mean, maybe the agencies go over the terms of the contract and ask for changes over the phone, as opposed to sending back a red-lined contract. Do you that could be the case?
Oh, Ellen, if it were only true! Not only was this statement NOT in response to a deal I was working on, this was simply a conversation. Then when I heard this from one publisher, I started asking around in the publishing industry to many contacts, not just publishers, and discovered this happens ALL THE TIME! A shocking number of agents not only do NOT redline, ask for things, explain, or negotiate on their clients’ behalf. It was mentioned to me that a number of agents don’t understand many clauses within contracts and do not employ anyone to explain the language to them so that they might then explain it to their client. If you believe in your agent and know that they are spending the time on your contract and fighting on your behalf and explaining it to you then you are in good hands!
xoMaggie
Maggie, I keep saying that nothing in publishing shocks me anymore. And then THIS happens. I know that Author’s Guild is very hands-on with respect to contract negotiations- or at least using their legal team to advise members during the contract process. I wonder if maybe you should speak with them for a second opinion. Were you deceived by this publisher, or did they tell you the truth. At least you’d get some perspective. Thanks so much for sharing your experience and for your diligence.
Saralee,
Yes, the Authors Guild does an excellent job. I don’t believe I was deceived by the publisher, because then I started an informal inquiry to other publishing professionals and discovered that this happens quite a bit. I think the take-away is that, as authors, we must be willing to seek out services that provide us with the answers we need to make informed decisions. Do not be afraid to ask tough questions! Use the Authors Guild. Ask your agent to explain things you don’t understand. Hire an attorney if you so choose. But DO be proactive with regards to your contracts. Read them and ask questions…at a minimum understand the contract you are signing!
xoMaggie
I would have killed to have help negotiating my first contract with the big guys. I read every word and hated a lot of it. But it was my first contract and I didn’t know I could get things changed. That was for a picture book. I signed in 2011. It’s still not published. If anyone out there isn’t reading contracts and at least asking for clarification, they’re making a huge mistake. Still looking for an agent (sigh) But I read and questioned every detail on my Soul Mate Publishing contract.
Susan,
The amazing thing is, that publishers are often very willing to negotiate. But, as we all know, we can’t get what we don’t ask for. I am a big believer, when it comes to contracts, you ask for what you want. The worst thing that can happen? The other side tells you no. And a no, is okay, but you must be informed as to what you are giving up and getting when you sign a contract. Only, then, can you make an informed decision as to the value of the contract to you and if the deal is worth it to you. Every author is different but all authors need to understand their deals.
xoMaggie
Maggie, my agent definitely did due diligence and she works with tons of publishers, so maybe the industry has changed or maybe some of the people you were talking to were either inexperienced? I can’t imagine not going over the contract! I will pass this along.
Yes, Sheila! That is exactly right, we must always read and review and ask questions about our contracts!
xoMaggie
I’m lucky to have a good agent. She negotiated my first contract and got several concessions from the publisher. But I’m a business-person as well. I reviewed every single line of that contract, and kept her on the phone for an hour and a half, going over things I didn’t understand.
I don’t blindly trust anyone to take care of me. Because, at the end of the day, it’s my name on the book cover, and my name on the check.
No one should.
Laura,
I agree. 100%. You are right. Always ask questions. Always read the contract. Always know what you are signing.
xoMaggie
Wow. I just…wow. I think I’ve been rendered speechless.
Maggie –
Great post. Sharing this.
xo
Pam
Had to post this link. Interestingly agents are getting push back. https://twitter.com/BookEndsJessica/status/648901921131130880