Friday, August 31, 2007

Anatomy of an Agency Agreement—Part Seven

STATUS: Worked hard today when I know everyone else was off playing for the three-day weekend. That’s okay though. I had a great time in NZ.

What’s playing on the iPod right now? I MAY KNOW THE WORD by Natalie Merchant

The next clause in my agreement is a snoozer but hey, everyone has to have warranties. My next clause basically states that you, as the author, hold the copyright to the work and that you warrant and represent that you have every right to enter into a publishing agreement for the work. In the event you don’t (and you lied about it), then you indemnify and hold the agency harmless for expenses raised by your breach of the warranties.

Yeah. That’s English.

Then the clause states that we both represent and warrant that we are free to enter in this agreement together and that neither party has a conflict with fulfilling it.

Small potatoes of a clause really. Just wait until you see the one in your publishing contract!

TGIF and have a great Labor Day Holiday Weekend (if you live in the U.S. that is).

Thursday, August 30, 2007

Anatomy of an Agency Agreement—Part Six

STATUS: I’m back. A little jetlagged and a little overwhelmed by the piles on my desk but that’s the price you pay for going away for more than two weeks.

What’s playing on the iPod right now? DWELLER ON THE THRESHOLD by Van Morrison

I’m going to take the easy way out and continue my discussion concerning the agency agreement so I don’t have to cast around for a blog idea on these first days back in the office.

What’s up after expenses? Well, for my agreement, I have a clause that states that I can take on other clients—even if their material might be viewed as competing or conflicting with your stuff. I don’t want a client to say “hey, you took on a vampire paranormal romance author and I write vampire paranormals so you shouldn’t have taken her on” or something similar.

And this also alerts new clients that I may take on other authors who write in the same genre as they do.

This clause also states that I also use subagents etc. to sell subrights.

The next clause deals with modification of material. Basically, it states that I won’t make any material changes without author approval but if I need to add a missing comma or something, I won’t need to check back in with the writer before putting it on submission.

What a nightmare it would be if I had to get author approval for EVERY change made to a proposal or manuscript. It would take months to submit anything. So, it’s to expedite things.

Back to my two hundred emails that need to be handled and my piles.

Thursday, August 23, 2007

More like Rivendell than the Land of Sauron

STATUS: Still off having a lovely time on the South Island of New Zealand. Every vista is jaw-dropping and breathtaking beautiful. I can say this for Colorado as well but here it’s just different. More rugged, jagged and fierce—along the lines of what I remember when I visited Alaska. Back in the office and back to regular blogging starting on Aug. 30th.

What’s playing on the iPod right now? Not listening at the moment.

Thought my blog readers would get a kick out of this photo. Here is Brian and I right outside our hotel in Queenstown, New Zealand. [Wow. Even I think that's a terrible sentence. My Bridget Jones moment! Have English degrees. Must remember to use them.]

This mountain range behind us is aptly named The Remarkables.

However, if you are a LOTR movie fan, you might recognize them as the mountains of Mordor.


Friday, August 17, 2007

Cereal Killers

STATUS: The International Date Line just fascinates me. See, right now it’s about twenty after noon on Saturday here in Auckland but in Denver, it’s 6:22 p.m. on a Friday night. So am I blogging on the weekend or not?

What’s playing on the iPod right now? DANCING IN THE DARK by Bruce Springsteen

I love the gals who organized that RWNZ conference but boy, it was brutal getting up early so I could do the 7 a.m. aptly named workshop called Cereal Killers. I’m pretty positive I killed the appetite of anyone who attended.

This is one of those tough workshops where attendees can submit the first 2 pages of their manuscript and I treat all the entries as if I were reading my slush pile. The point is to give the attendees an inside look at how an agent thinks and reads.

It’s voluntary and I give big kudos to all who participated but this type of workshop can be brutal. I actually try and strike the balance between being honest and being constructive with my comments. Sounds easy but it’s not.

This time I was smart. I gave everyone the “this workshop is not for the faint of heart” warning before it began. No one ran screaming out the door—either before or after the workshop so I might have succeeded.

Interestingly enough, today really crystallized a couple of reasons why I might pass on asking for a full manuscript. I haven’t really articulated these points before and thought they might be worth sharing.

I’ll pass on sample pages if

1. the author is intruding on the story by giving a recap of what the characters are thinking and feeling when that info is already clear via the scene and dialogue that proceeded it.

2. the author needs to significantly tighten the writing by combining sentences to better detail the action.

3. the author utilizes description that’s not natural to the scene unfolding.
(The example today was that a character had to force her hand away from her mouth. So think about it for a moment. Literally (in the physical sense), someone else can force your hand away but you wouldn’t really do so on your own.)

4. the author has a character whose thoughts and actions are incongruent to the scene unfolding.
(And I don’t mean this in terms of satire where that construct is often deliberate. I mean when it is unintentionally done and it simply creates reader confusion on how to interpret the scene or the character’s motive.)

Tuesday, August 14, 2007

Day of Tramping

STATUS: I'm taking your advice about being on vacation so here's a picture just to show you that I"m having fun. It was a bit chillier today but still lovely. Here in New Zealand, they call it "tramping" instead of hiking.

On Friday, it is back to work as the Auckland Writer's Conference starts then. Maybe I'll be back in the blogging mood.

Monday, August 13, 2007

Anatomy Of An Agency Agreement—Part Five

STATUS: Hello from the land of Kiwi. Late this morning, my husband and I took the hike up the Rocky Bay trail on the island of Waiheke (which is just a 20 minute ferry ride from Auckland). It’s about a 2 hour hike (and a bit muddy) but we were excited to reach the top just in time for lunch and a bit of wine tasting at the Te Whau Winery. Guess what? It’s closed on Tuesdays (and yes it is Tuesday already here in NZ). Still, it was a gorgeous hike and a gorgeous day.

What’s playing on the iPod right now? Not listening at the moment but I do have my shuffle with me.

Once we have death figured out, then we have to address taxes. Just kidding. The next clause in the agency agreement deals with expenses and what my agency is entitled to receive as reimbursement from the author.

About two years ago, I actually stopped charging back most expenses to my clients. Why? Because the world of publishing had changed rapidly. These days I email my submissions (with the rare hard copy being sent out by snail mail).The biggest costs were photocopy and delivery. With that pretty much a non-issue, it didn’t seem worth the time to muddle with the accounting by tracking the only expense we end up really having which is FedEx and postage.

Now we do charge back for expenses related to selling subrights. Often we have to buy extra copies of client books in order to send on to foreign publishers and Hollywood co-agents. This can be expensive (and hence the one main charge-back to the clients). Now we try and wrestle as many free copies out of the publishers as we can get but it never seems to be quite enough since we pursue foreign and film subrights aggressively.

Here’s the clause if you want to see how it reads:

NLA will be entitled to receive reimbursement from the Author for the following expenses relative to the representation of a project: special delivery/payment expenses, International/foreign shipping if applicable, costs associated with the selling of all secondary rights, including costs such as purchasing extra books and/or galleys used to sell those secondary rights.

Reproduction costs, postage & delivery, as well as all other normal costs associated to running a business such as office supplies, rent, or utilities are not an author billable expense. Please note that applicable charges are accrued to an author account and reimbursed from the author's income from publisher payments. Reimbursed deductions will be itemized and supported by receipts.

Friday, August 10, 2007

Vacation All I Ever Wanted

STATUS: Yep. Guess who’s going on vaca starting tomorrow.

What’s playing on the iPod right now? HEY NINETEEN by Steely Dan

If you’ve been paying attention to my comings and goings (clearly listed on my website news page), you’ll know where I’m going. The land of Frodo and Orlando Bloom.

Oh wait, I’m going to New Zealand—not Middle Earth.

So what I’m trying to say is that I’m going to be gone for a good two weeks and the blogs will most likely be sporadic. It is called a vacation for a reason…

And to send me off on a cheery note, let’s talk about death some more. Many folks had questions about what happens when an agent goes off to the great beyond. You want me to say that XYZ will happen if this occurs and the truth is that there are many answers.

First, it depends on the agent and what corporate structure the agency has in place. For some folks, if the agent dies, the agency ceases to exist as a legal corporate entity.

That’s not true for my limited liability company because it’s not set up that way. Some agents are sole proprietors (not an entity structure I would recommend because of liability issues). Some are LLCs like mine. Some are S-corp corporations. The answer to this question changes depending on the company structure.

Then it depends on what is outlined in the agency agreement and this can vary from agent to agent or by agency.

My agency (and corporate structure) is set so that surviving members of the LLC and my heirs maintain the rights to monies generated from projects previously sold by me (while I was alive) for as long as they are in print. Since I don’t do “in perpetuity,” once a work goes out of print, all rights revert back to the author and the relationship with the agency is at an end. If any projects were on submission during time of death, the author, his or her new agent, and the surviving members of my agency would simply negotiate in good faith concerning those projects.

For my part, I’ll be dead so I won’t care.

And on that note…

Thursday, August 09, 2007

Pub Rants Recognized By Preditors & Editors

STATUS: I’m a mad woman! Cleaning contracts off my desk left and right. Right and left. I LOVE when final contracts come and they are ready for client signatures.

What’s playing on the iPod right now? COME AS YOU ARE by Nirvana

How cool is this? I just had to share because I’m so tickled. Now I have to figure out how to get it to display on the side bar. He sent me the html code but knowing me, I'd goof that up.

Dear Kristin,

Congratulations! Your site was nominated and later selected as the latest recipient of the Preditors & Editors' Truly Useful Site Award.

Your site will be honored on a Preditors & Editors' Sites of Distinction page along with a link to your site. As well, you are entitled to display our award on your site. An individualized GIF file of the award is attached for display purposes.

Again, our congratulations go out to you on your success in creating such an outstanding site.

In admiration of your efforts,

Dave Kuzminski, Editor
Preditors & Editors

Wednesday, August 08, 2007

We Interrupt This Program For A Great Story

STATUS: Finally, after two weeks, things are easing up and soon I will be able to share all kinds of good news…

What’s playing on the iPod right now? RAINY NIGHT IN GEORGIA by Brook Benton

I think it’s good to take a few breaks from the agency agreement blogs and mainly because I just had to share this story.

My author Jennifer O’Connell was doing an event to promote the Judy Blume Antho this past weekend. She thought it a bit odd that there was a person dressed in a baseball cap and sunglasses in the back row but didn’t dwell too much on it.

She had a great time talking about Judy Blume moments and about the essays. At the end of her author talk, the ball-capped person approached her and whipped off the cap and sunglasses to reveal, and I’m sure you could see it coming from a mile away, that she was none other than Judy Blume herself.

She jokingly commented that she thought she’d have to be dead first before getting a tribute like this.

But this story isn’t even the coolest part. Judy is so delighted with Jennifer and the anthology that she has joined in the chat at the B&N bookclub site. It’s going on right now and if you ever wanted a chance to talk with Judy Blume, then click here.

I’m only jealous that I didn’t get to meet the legend in person myself! I’m off to join the chat…

Tuesday, August 07, 2007

Anatomy Of An Agency Agreement—Part Four

STATUS: Uh… it can’t really be after 11 o’clock at night, can it? Perhaps next week I can share why I’ve been burning the near midnight oil every night…

What’s playing on the iPod right now? I WILL FIND YOU by Clannad (Last of the Mohicans soundtrack)

Great. It’s late at night and I get to tackle the most morbid clause of my agency agreement.

Clause 5 is entitled Dissolution of Agency: Death or Incapacitation of Principals of Agency.

You guessed it. This clause addresses what happens if I kick the bucket suddenly (or not so suddenly as the case might be). Not a particularly happy clause but an important one to have clearly outlined before signing on with an agent or agency.

The smaller or more boutique the agency, the more important this is. If an agent is a “one person show” for all practical purposes (and this isn’t a bad thing—lots of terrific agents aren’t part of a bigger, corporate agency), then it’s really important to know what happens to your literary material if this person (and hence the agency) is no more.

Ah, the little things that an agency agreement can make clear…

Monday, August 06, 2007

Chutney Irresistible

STATUS: It’s late at night. That should pretty much sum it up. I’m back in Denver though.

What’s playing on the iPod right now? MIDDLE OF THE ROAD by Pretenders

If you are going to have a brush with the famous, it helps to know who they are.

This is a completely non-publishing blog entry so feel free to skip it. I just thought you folks would get a kick out of this story. I’ll be back to talking about agency agreements tomorrow.

On my trip to St. Louis this week, I brought Chutney on the plane with me. She rides in the cabin with me and she’s a great traveler so it’s fun and easy. On my return trip to Denver, I arrive at my gate only to discover that the plane is delayed. Never a good thing when traveling with a dog but I notice a gentlemen softly strumming a guitar. Chutney loves music so I decide to sit near the guitar player for the mellow, calming effect. Worked like a charm. Chutney curled up and went to sleep but not before a gregarious fellow came over to chat. He had to meet her because he had just adopted two rat terrier brothers. I got to see the family pictures on his Mac and everything.

What can I say, Chutney is such a guy magnet.

So he goes back to strum on another guitar and it starts to dawn on me that several guys in this traveling party are quite musically gifted. But hey, I’m working on my computer and Chutney is certainly benefitting from the music (and the attention) so although unusual, I don’t think much about it. Then several young people approached the guitar strummers to ask for autographs.

Yes, I’m a little slow on the uptake. These guys I’d been casually chatting with are famous musicians and even if I had no clue as to who they were, others obviously did.

So here are the fellows I let pet Chutney while waiting for our plane at gate A18 in St. Louis.

I’m off to download some of their tunes onto the iPod so that I won’t be accused of living under a rock or something.

Friday, August 03, 2007

Anatomy Of An Agency Agreement—Part Three

STATUS: TGIF and all I can say is that I need it.

What’s playing on the iPod right now? BITTERSWEET by Big Head Todd & The Monsters

Commissions/Agency Clause
Just as the heading suggests, this is where I outline my commission structure. It’s pretty standard in the industry to use 15% (rather than 10) but subrights commissions can vary from agency to agency. Some do 20% for film and translation. Some do 15% for film. and some do 25% for translation rights.

All of these structures are within the norm.

This clause also highlights that the agency will remit payments within one business week of receipt of publisher payment. (Peace of mind for the author so they’ll know that payment is prompt.)

There are some protection features for the agency as well. For example, if an author reneges on a publishing contract stipulation and they are completely at fault (by let’s say not delivering the manuscript—ever—because they’ve gone bonkers and are now living in a non-tech commune or something), then the author is responsible for refunding the full advance to the publisher. Since I did my job and the agency is not at fault, I get to keep the 15% paid to me and the author will have to make up the difference from his/her own pocket.

This has never happened by the way but it’s important for writers to know that they need to be fully responsible for their agreement if they sign a publisher contract.

I also have this clause in the paragraph:
“There will be an Agency clause in the Author-publisher contract stating the terms of this agency agreement and it is understood that the agency clause will be for the full term of that contract only and not in perpetuity.”

And that’s there for obvious reasons. No surprises when the publisher contract arrives.

Thursday, August 02, 2007

Anatomy Of An Agency Agreement—Part Two

STATUS: Another late night so I’ll be delighted if this blog entry is even coherent.

What’s playing on the iPod right now? I’M NOT IN LOVE by 10cc
(I love my lime green iPod shuffle!)

Bravely onward with the dissection of the agency agreement.

After the Preamble, the next clause is entitled Specific Representation.

This clause pretty much details what I’m going to represent the author for. I’m going to sell the print rights (primary rights) as well as the subrights (which means audio, film, serial etc.) These are called the secondary rights.

Not that exciting. Next clause is Best Efforts. I imagine you can pretty much decipher what that means. I’ll use my best effort to sell the project. This clause has another important factor though. It also stipulates if I choose not to represent a future project from the author, they are free to go forth and sell it themselves or whatever.

This rarely happens because the point is to take an author on for his/her career but one never knows so it’s only fair that the author has recourse.

The next paragraph is the Commissions/Agency Clause. This is a little more involved and since my brain is currently mush, I’ll wait until tomorrow to tackle.

I’m sure you can’t wait.

I do want to highlight here that not every agent or agency has an agreement. Often they go with a handshake (verbal or otherwise) and then rely on the agency clause in the publishing contract.

That’s fine. It is a standard practice. However, I’m of the mind that people should clearly outline the business relationship before embarking on it together and that’s what the agreement allows. It makes expectations clear and at the very least, it allows for a discussion about the agreement before the writer signs it. When the publisher contract hits the writer’s desk, ready for signing, and it’s the first time the author is seeing the agency clause, well, they might not feel comfortable enough to ask the necessary questions. Few writers would jeopardize their career by not signing the contract at that point but what an awful feeling it would be if the agency clause held rights into perpetuity (or something like that ) and the author is not comfortable with that. A contract ready to sign is not the time to be discussing those kinds of issues but I would recommend writers do so anyway.

The benefit of an Agency agreement is that with it, the writer is guaranteed a chance to ask all the necessary questions about the agency clause before signing on the publishing contract’s dotted line.

Wednesday, August 01, 2007

Anatomy Of An Agency Agreement—Part One

STATUS: Even in St. Louis I’m working hard. Tomorrow I do one panel at Archon so I may have some interesting things to report… It’s also rather late as you can tell by the stamp on this posting. Sorry for any typos etc.

What’s playing on the iPod right now? WATCHING THE WHEELS by John Lennon

As promised, I’m going to break down the agency agreement. Please remember that this is simply from my agency’s boilerplate and not all agency boilerplates are the same. Some might be better; some might be worse. Ultimately, many of them will have these elements in them.

Most contracts begin with formal language that appoints the agent to represent you and the books you write, and for all rights derived from your literary material...

So that starts the agreement. For some authors, the agreement can be modified to only apply to one specific work or it can be left open to include all works.

If the latter, the crucial point is to make sure there is an “out” if the relationship doesn’t work out. For my contract, that stipulation comes in clause 10: Term of Agreement. Either party can terminate the agreement with a 30-day written notice.

In my mind, both parties should be happy and if they aren’t, then why would we want to continue working together? Makes sense to me but I have heard that other agents stipulate automatic time frames for the agreement such as 6 months, 1 year, or even 2 years.

I think 2 years is rather a long time and it would certainly feel like an eternity if the relationship wasn’t working out.

So negotiate for what feels comfortable for you.