Posted On March 9, 2011 by Print This Post

How Do I Know If I Need an Attorney or an Agent? – Elaine English

You’ve just been offered a contract, and it’s full of legal mumbo jumbo you’ll never understand! How do you know if you need an attorney or an agent? Elaine English tells us.

Elaine English - Literary AttorneyMost writers have heard they should have an agent, although some aren’t quite sure why, but fewer are familiar with literary attorneys and what services they offer. As someone who has worked in both capacities for many years, I was delighted when I was invited to lead this discussion about the differences.

Literary agents typically take on representation of an author to help secure publication for the author’s projects. In most cases this starts with the agent providing an editorial evaluation of the manuscript and its marketability. Then once the relationship is established, the agent typically will provide whatever editorial assistance is necessary to polish the manuscript or proposal so that it can be put forward to editors in its best form. The agent relies on his knowledge, experience and contacts in the industry to target those editors most likely to be interested in and, therefore, to offer a contract for the particular project. Once an editor makes an offer, the agent then negotiates with that editor (and/or any others who may also be interested in topping that offer) to secure a contract for the author on the best possible terms. Once a publishing contract is signed, the agent then becomes the conduit for all compensation due the author under that agreement. Typically the publisher sends the advance, royalties, and any other proceeds to the agent who then deducts his agreed upon commission and forwards the remainder to the author. If some rights have been retained from the book publisher ( e.g., film or foreign rights) the agent will also endeavor to secure other contracts for those rights as well, often with the assistance of sub-agents. Agents often remain the agent of record on publishing contracts for many, many years.

Elaine English Literary AttorneyRelationships with attorneys are usually more short-lived. Attorneys typically focus only on the offer, the contract negotiations, and the publishing contract itself. Attorneys generally don’t get involved in any editorial issues or evaluations of a manuscript. They rarely have the expertise necessary to identify which publishers might be appropriate for specific projects. But if an author has made a submission on her own, then an attorney might well be able to step in and handle the deal from that point on, much in the same way an agent could. Typically an attorney is retained to handle a specific matter and once that matter is completed (i.e., the contract negotiated and signed), the attorney’s involvement ends. Of course, if an author requests an attorney’s services in handling contracts later for the licensing of other rights in a project, an attorney would gladly provide that assistance as well, but only if retained by the author for that additional purpose. Rarely, if ever, would any of the money paid by the publisher flow through an attorney.

In today’s competitive market, most of the larger book publishers and virtually all tv and film producers refuse to take submissions directly from new authors. Agents have de facto become first line reviewers for publishers. So, often if an author wants to be published by one of the larger houses an agent is a necessity. Literary attorneys are not, yet, required for any part of the process, but who knows what the future may bring. Already, they can be extremely useful, particularly in this era where things, like the definition of e-rights, seem to change almost daily. We’re almost to the point where we also need IT experts to help explain publishing agreements, such as what the difference is between an “app” or an enhanced e-book!

Elaine English Literary AttorneyCompensation is one clear distinction between agents and literary attorneys. Agents typically are paid only if they sell an author’s project and then they receive a commission (typically 15% or 20%) based upon the gross revenues received by the author. Agents typically receive their share of these funds so long as that contract remains in place, and sometimes even long after for modifications, extensions or even replacements for that contract. Attorneys, on the other hand, usually are paid a flat fee for the specific work they do or at an hourly rate for the time they spend doing the work requested by the author. Once the attorney’s invoice is paid, there is no further financial obligation.

If both attorneys and agents handle contract negotiations and review, then what’s the difference? Agents are generally more attuned to the business aspects of the contract – the advance, royalty rates, rights granted or retained, and the like. Attorneys, on the other hand, are focused on the legal language of the agreement and making sure that the author’s legal rights are protected to the fullest extent possible. This includes a clear understanding of the rights granted, how the copyright is handled, any non-compete clauses, the option clause, the warranties, and all the other stuff that’s often lumped under the heading of “boilerplate.” That’s not to say that agents don’t care about these clauses, because most do. But literary attorneys have a wider legal background in which to evaluate these issues.

Elaine English Literary AttorneyOver the years, I’ve met many agents whose knowledge of the legal issues in publishing contracts was quite impressive. They are usually very detail-oriented people and many of them have trained with contracts experts. But you can’t always count on every literary agent to have particular expertise in all the nuances of contracts, and generally, that’s where having a literary attorney on hand can also be useful. There’s nothing that suggests you can’t have both a literary agent and a literary attorney. I’ve worked with agents who seek consultation about unfamiliar contract provisions, and I’ve also worked with agents when authors retained me to review some or all of a contract that her agent was negotiation. Authors who want to make sure they have all bases fully covered should consider using both.

Literary attorneys can also advise authors on other publishing issues, such as when copyright permissions are needed if you use materials from other sources or how to minimize libel or other issues when basing characters on real people. Attorneys can also advise authors on how to secure reversion of rights when a work has gone out of print, or how to deal with a publisher who might be in breach of the contract for, as an example, failing to pay royalties. Attorneys can also assist authors in reviewing contracts other than publishing agreements, such as agent contracts, collaboration agreements, and for those who choose the self-publishing route, contracts with designers, printers, and distributors. Typically these are not the sort of issues where agents have special expertise.

Elaine English Literary AttorneyJust as you wouldn’t submit your novel to an agent who handles only self-help projects, you want to make sure that the attorney you consult has experience with publishing contracts. The practice of law has become very specialized, and even general Intellectual Property attorneys who regularly deal with copyright, trademark or patent issues, may not have actually seen or negotiated a publishing contract. Just as with any other specialized type of contract, there are issues peculiar to publishing agreements which any advisor needs to know. Just as I wouldn’t begin to handle the settlement of a real estate transaction for a client (something that I’ve never done before) you wouldn’t want a real estate settlement attorney advising you on your publishing contract. So, just as you do your homework before you select an agent, do that also in your selection of an attorney.

There is one other issue I feel obligated to mention. Another difference between literary agents and attorneys is the amount of regulation imposed on the two professions. Few states regulate literary agencies, but by contrast, the legal profession is heavily regulated. All practicing attorneys have graduated from college and law school, have successfully passed a multi-day bar examination and are subject to both professional and ethical standards imposed by the state in which they practice. By contrast, virtually anyone can establish a literary agency. Most agents have some interest and/or background with books, but no specific educational background or training is required. Many agents learn the business by working at larger agencies, often starting in the mail room reading and reviewing manuscripts. It’s also not uncommon for an editor who leaves the daily grind of the book publishing business to become an agent. But in some cases, lack of state or other regulation has allowed scam artists to set up a publishing or editorial service or a literary agency only to prey on unsuspecting authors desperate for representation. The Association of Authors’ Representatives, a trade association that imposes a standard of ethics upon its members, currently serves as the only national credentialing organization for literary agents. As with attorneys, it pays to check out an agent before you submit your work.

So why bother with either? There are books for writers, some of which do a very good job of explaining the ins and outs of the business, including detailed analyses of publishing and other contracts. Why not just do all of this on your own? Some authors do and do it quite well. But be honest, do you really want to take this on as well as everything else you have to manage? First, there’s creating the story, then there’s mastering the craft of writing, then there’s those darn synopses and query letters, to say nothing of the publicity – the blogging, the tweeting, the “friending”? And what about computer repair or car repair? Do you do that all on your own as well? We have to make these kinds of choices every day. But just as I prefer to have a tax advisor help me with the intricacies of the tax laws, I would recommend either a literary agent or an attorney or both to help you on your path to success as an author.

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RU Readers – what are your feelings about using a literary attorney versus an agent. One or both?

Joins us on Friday when we chat with historical author Katharine Ashe about what happens after the sale.

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Bio: Elaine P. English is both an attorney and literary agent based in Washington, D.C. As an attorney, for more than twenty years she has focused her practice on literary, media and entertainment law, with a special emphasis on publishing. As an agent, she represents a limited range of commercial, genre fiction, including women’s fiction, romance and mysteries. For more information, see her website at www.elaineenglish.com.

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22 Responses to “How Do I Know If I Need an Attorney or an Agent? – Elaine English”

  1. Elaine,

    Thank you for providing such a wonderful post! You’ve clarified a few grey areas for me and I’m sure for our readers, too.

    Do you know of an organization that provides a list of literary attorneys, or do you have any recommendations on how to find an experienced literary attorney?

    Thanks!
    Tracey

    Posted by TraceyDevlyn | March 9, 2011, 5:50 am
    • Tracey:

      You highlight an issue that perhaps writers organization should take as a challenge to try to create such resource information for their members. It’s always tricky because no group wants to endorse agents or attorneys unless they are very familiar with the person’s qualifications. But I’m not aware of any comprehensive list or directory of literary attorneys. Of course, there are multiple directories of literary agents. I think Novelist, Inc. may offer some referral information about attorneys, but I’m not aware that RWA does.

      As I said in my post, you can use standard legal resources, through local state bar organizations or web-based directories, e.g., martindale.com, and look for Intellectual Property attorneys, but just make sure that you look further through their bio information to confirm that they have experience in the publishing industry.

      Posted by Elaine | March 9, 2011, 8:47 am
    • Tracey, I’d appreciate such a list, also. If one exists, it would be helpful. A Web site, or any other starting point would also be greatly appreciated.

      Posted by Mary McFarland | March 11, 2011, 10:36 am
  2. Hi Elaine,

    What a wonderful post, but then I know first hand that your knowledge of this particular field is more than impressive!

    Since Elaine is my agent, I just want to take one minute to sing her praises. Not only did she provide spot on editorial advice to me that resulted in a sale, but her knowledge and professionalism in reviewing the resultant contract was enormously helpful. She found issues in the standard boilerplate that I would have missed entirely. So I would say that having a good literary lawyer look at that contract was very helpful to me.

    Posted by Hope Ramsay | March 9, 2011, 6:41 am
  3. Hi Elaine. Thank you for being with us today. As an unagented writer, I’m curious if the rates vary by attorney. Is there a typical hourly rate that authors should expect to pay?

    Thank you for a great post!

    Posted by AdrienneGiordano | March 9, 2011, 7:04 am
    • Rates vary too much depending upon where the attorney is located and the level of experience and numbers of years of practice for me to really give you an answer. I would say you should expect to pay at least a couple hundred dollars to have a contract reviewed and analyzed, but I think most authors who’ve had it done would say it’s money well spent.

      Would those of you who’ve used an attorney agree?

      Posted by Elaine | March 9, 2011, 8:51 am
  4. Hi Elaine,

    Excellent information. An attorney and an agent sounds like an interesting career. How did you decide to merge both professions?

    Mary Jo Burke

    Posted by Mary Jo Burke | March 9, 2011, 7:52 am
    • Mary Jo:

      I wish I could take credit for being a trail blazer on this, but frankly, I followed in the footsteps of two other attorney/literary agents with whom I worked as a junior associate.

      Posted by Elaine | March 9, 2011, 8:53 am
  5. Morning Elaine!

    Love the post. Chock full of great information. My question – how do you see yourself stepping into the unchartered waters of e-books? Is this going to be an expanding territory for literary agents or an area where agents aren’t required at all?

    Thanks so much for posting with us today!!!

    carrie

    Posted by Carrie Spencer | March 9, 2011, 8:15 am
    • Wow, Carrie, it’s only 8:15 and you’ve already taken us into the brave new world.

      I must admit that I struggle with this issue as a literary agent as do I think most other agents. Certainly I don’t see traditional publishing models disappearing over night, but e-pub opportunities are opening increasingly more avenues for authors to get their content directly to their readers.

      As an attorney, there will always be work, I think. Contracts with designers, artists, distributors, etc. Those are just as important to understand and negotiate as are traditional publishing agreements. And there will always be issues of copyright, rights licensing and the like that I think should keep most literary attorneys in demand.

      But a question that I’ve been thinking a lot about this week is how does an agent get compensated if an author goes off and self-publishes (e-pubs) her own work? Many agency contracts provide that the agent is compensated for all works sold during the term of the relationship. Is it fair for that to include income the author receives from self-pubbed works?

      What do people think?

      Posted by Elaine | March 9, 2011, 8:59 am
      • Elaine -

        You’re certainly posing the hard questions right back at us! :)

        I don’t have a definitive opinion in response to your question about agent compensation for self-published works. I suppose my first thought would be that it depends whether or not the agent had any involvement with the manuscript at all–editing, marketing to publishers, etc. I do believe work should be fairly compensated, but if the agent wasn’t involved in any way, then perhaps s/he shouldn’t take a percentage. The challenge is determining how “involvement” in a project is defined.

        Best,
        Kelsey

        Posted by Kelsey Browning | March 9, 2011, 12:07 pm
        • Kelsey:

          Thanks for your comments. I agree that the goal is to be fair, but it will be interesting to see how these things work out and what everyone can agree on is “fair.”

          Posted by Elaine | March 9, 2011, 1:03 pm
        • I can see where this can cause huge problems….and it might need a literary attorney to settle the matter….=) But I agree if the agent didn’t have anything to do with it, they shouldn’t get their fee, but I’m only seeing from the author’s POV, not the agents!

          carrie

          Posted by Carrie Spencer | March 9, 2011, 1:44 pm
  6. I’m so glad you shared this information with us! I’m a little overwhelmed – at this point, I’m still trying to write a saleable book, so I haven’t had to deal with these types of decisions yet. I wish I’d had this information years ago, though, when I was writing unagented gardening books. I wasn’t ripped off or anything, but it would have been nice to have an agent or attorney to consult with back then.

    Posted by Becke Martin/Davis | March 9, 2011, 8:54 am
  7. Hello, Elaine -

    This is definitely a “keeper” lecture for me.

    With the publishing landscape in such flux, are there other professionals (besides a literary attorney or agent) you believe an author should have on his/her payroll in order to navigate this brave new world?

    Many thanks for being at RU today!
    Kelsey

    Posted by Kelsey Browning | March 9, 2011, 12:02 pm
    • Glad you enjoyed the post and found it useful.

      As for other professionals, a good tax advisor who is knowledgeable about the special rules that apply to writers, such as accounting for expenses and royalty income, might come in handy.

      A broker who can help you to find insurance to protect against legal claims that might arise from your writing (libel, invasion of privacy, copyright infringement) might also be useful. Such a person might be especially useful for someone planning to self-publish.

      And then, certainly, there’s the publicist or PR expert who can help you to market and promote yourself and your books. I think in this brave new age of e-pub, publicity and marketing are going to become even more important than they are today (and they’re pretty important today already). With the more than 300,000 or so new titles published each year, it’s really going to be critical to find a way to make your book stand out in the crowd so readers can find you.

      Posted by Elaine | March 9, 2011, 1:12 pm
      • Hello Elaine!

        Great info here! I was reading about publicists the other day and shaking my head. The industry’s changed so much.

        I’ve always wondered about authors being sued for slander.I didn’t know you could buy insurance for that!

        Do you enjoy one aspect (legal vs. agent) of your business more than the other?

        Thank you so much for joining us today.

        Posted by jennifer tanner | March 9, 2011, 5:49 pm
  8. Elaine, do you think someone could do a writing career without an agent? Just using a literary attorney?

    carrie

    Posted by Carrie Spencer | March 9, 2011, 1:51 pm
    • Carrie:

      I think if an author were savvy enough about the business and stayed on top of what’s happening in the industry (e.g., trends, editors moving around, value of staying with current publishing house v. moving, how to build a successful career), then yes, the author probably could manage without an agent, using a literary attorney only as needed to deal with legal and contract matters. There are authors who are successful doing that (or who at least do that for several years in between having an agent), but I think each author has to be honest with herself about her business skills and what she wants to spend her time doing, besides writing and promoting her work.

      Hope this answers your question.

      Posted by Elaine | March 9, 2011, 2:42 pm
  9. Elaine, thanks so much for joining us on RU today – invaluable advice and I can just HEAR everyone running their printers out there! =)

    Thanks again!

    carrie

    Posted by Carrie Spencer | March 9, 2011, 10:32 pm

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