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.
Most 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.
Relationships 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!
Compensation 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.
Over 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.
Just 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.
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.
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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