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When an Agent Wants a Never-ending Deal

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by Paul Aiken, Execuitve Director, Authors Guild

Paul Aiken

Paul Aiken

Paul Aiken is the executive director of the Authors Guild. This article is adapted from an e-mail advisory sent to Guild members. For further information, visit www.authorsguild.org.

Certain literary agencies include an “interminable agency” clause in their agreements with clients and/or in the book-publishing contracts they negotiate for authors or publishers. Such a clause grants the agent the exclusive, irrevocable right to represent the works that are subject to the agreement for the entire term of those works’ copyright. (Some agents use the phrase “agency coupled with an interest” in their contracts. This is apparently an attempt to secure similar interminable rights to represent works.)

Recently, some members of the Authors Guild and several other writers’ groups, including the Romance Writers of America, wrote to the Guild to express their concerns about the interminable agency clause. Although the William Morris Agency has drawn most of the criticism, several other agencies–many of them also quite competent and deservingly well regarded–use the interminable agency clause too.

Most of these agents probably haven’t given the clause much real thought and use it out of habit or because they borrowed language from another agency’s form. If you encounter it in your dealings with agents, the observations that follow should help you explain why the clause’s minimal benefits are far outweighed by the inconvenience it causes and by the responsibilities that accompany it. In time, the Guild hopes to be able to persuade the agents who are currently using it to remove it from their contracts.

The Problems

The clause may entitle the agency to unearned income.

Literary agents are compensated, as they should be, for securing a contract for a work. Once the work goes out of print, however, the benefit from the agent’s work ends, and so should the compensation. The agency should be compensated only for any new placement of the work that the agency secures. (No competent agent would countenance a similar interminable grant to a publisher.)

The agency is unlikely to be around for the term of the work’s copyright, which is now the author’s lifetime plus 70 years.

The copyright of a work written today will last, on average, 100 years or more. A lot of things will happen in that time. An agency may merge, dissolve, or change names, creating myriad complications. Even if the agency survives or there’s a clear successor, there’s the question of ability. The agent may be quite competent (most are), but will the agent’s successor be?

The clause may conflict with other agreements signed with the agency.

In some cases, including some recent contracts with the William Morris Agency, the interminable agency clause does not appear in the author-agent agreement, but it does show up in the publishing contract. This discrepancy, in the Guild’s view, would render the clause unenforceable, particularly if the agent failed to point out the additional rights being granted to the agency. (The Guild believes that new contracts with William Morris are now consistent with the language they use in publishing contracts.)

After the death of the work’s author, the clause can greatly complicate the task of a literary executor or trustee.

Executors will not only have to keep track of such important matters as which works are still under contract, but will also have to determine whether an agency has an interminable right to represent any out-of-print works. In the event that more than one agent has handled the author’s works (and more than one interminable agency clause applies), the executor will be contractually obligated to work with each of those agencies.

We don’t want to overstate the problem. It’s been the Guild’s experience that most reputable agents, when asked to relinquish their contractual right to represent an out-of-print work, willingly (in most cases eagerly) do so. Still, it shouldn’t be necessary for the author to ask.

The Dubious Benefits

The benefit to the agency of interminability is difficult to fathom. So long as the agency continues to faithfully perform its duties, no one seriously questions its entitlement to a commission for the duration of the publishing contracts it secures.

On the other hand, the clause offers scant shelter to the agency that materially fails to perform its duties–no competent court would rule that a client is obligated to pay a commission to such an agency.

The apparent objective of the clause, to secure compensation for the exploitation of the work after it goes out of print, seems pointless. Once the work goes out of print and the publishing contract ends, the residual economic value of the work is usually small. The opportunities for an agent to realize a meaningful commission on the work are even smaller.

The Related Requirements

The agent’s continued right to this faint hope of compensation carries an obligation and a risk. The agency must continue to competently discharge its fiduciary obligations to represent its client’s interest in the work. The agency cannot sit idle: it must actively seek a new publisher for the work and report on its efforts in this regard. It must also diligently respond to any licensing and permission requests for the work.

A level-headed cost-benefit analysis of the clause, purely from the agent’s perspective, weighs heavily in favor of dropping it.

The best approach is for agents simply to drop the clause.

Copyright 2004 Authors Guild, Inc.

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