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Chip MacGregor

February 13, 2017

Ask the Agent: Do I need an agent if I already have a book offer?

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Someone wrote to say, “I’ve been offered a contract on my novel. Since I don’t have an agent, should I seek one at this point? And if the agent accepts, should he or she still receive 15% of the deal, even if they didn’t market my book or secure the deal for me? Would it be better to have the agent simply review the contract for a fee?”

There’s quite a debate about this issue. I suppose many agents would say, “Sure — call me!” They’d be happy to get 15% for a deal they’ve done no work on. But my advice would be to think long term. Is there an agent you like and trust — someone you want to work with in the long term? If so, call him or her. Talk about the situation. Explain that you’ve already got a deal. The agent may be willing to take less in order to work with you. They may review the contract for a fee. They may have some insight into your situation. But don’t sign with someone just because you think you need an agent and someone is willing to say yes. If, for example, you’ve got a $10,000 advance coming, make sure it’s worth the $1500 to have the agent assist with this contract. Sure, it may be worth it — if you’ve got a complex situation, or a novel that is going to be made into a movie, or a potential bestseller… those probably call for a good agent to get involved.

That said, it doesn’t really seem fair to me to take the full comission for a book I didn’t sell, though not everyone in the industry agrees with me. You can always talk with a contract-review specialist, who will review your contract for a flat fee (usually somewhere in the $500-to-$1000 range). You can also talk with an intellectual property rights attorney, but be careful — they’re generally paid by the six-minute increment, and their goal is often to keep the clock moving. The longer it takes them, the more they are paid, so don’t agree to this without some sort of ceiling on the cost. And make sure you’re talking with a lawyer who knows publishing contracts, not someone who is used to doing real estate contracts or Grandma’s will. (I know of at least one author who paid more to have a top-flight entertainment lawyer review the contract than they were paid in advance dollars.) Generally speaking, your family lawyer won’t have enough experience to really help you with a publishing contract. Again, I’ve noticed a pattern among some agents to claim they can help you if you already have an offer on the table. That may be true, but check them out… you may not need an agent on this deal, but perhaps could use some help on the next one. Still, congratulations on getting the book deal, by the way.

Another writer asked, “Should I worry about a literary agent who turned me down, but suggested I work with his editorial service?”

Absolutely you should worry. Here’s how this commonly works — you send a manuscript to an agent, who says, “I really like this, but it’s not ready. However, we have an editorial service here who can help you. For just $1500, they’ll get this proposal ready for us to represent…” The agent sends you to his editor friend, then pockets half of that “editorial fee,” so he or she is making money off the author. That’s a total violation of ethics for literary agents (and I’d argue the reason we’re seeing some agents do this is because we’ve had a group of people jump into agenting who don’t really know what they’re doing). The Association of Author Representatives has a clear canon of ethics printed on their web page which precludes an agent from doing this very thing. It’s ripe with potential for abuse. It’s why I keep a list of editors I trust close at hand, to recommend to writers who need help, but I don’t have any editors on staff, don’t try and sell authors editorial services, and don’t get any sort of kickback if I do recommend someone. My advice: If an agent tries to cross-sell you some other literary service that charges you a fee, stand up and walk away. You can find a better agent. The same thing goes for an agent who tries to sell you their marketing assistance. There are too many scam agents who are basically trying to sell editorial or marketing services for a fee, rather than trying to help you place your book.

And another author had this situation: “I signed with an agent, but wasn’t happy. I fired that agent, and moved on to another. But now my first agent is claiming that anything I ever talked with her about is her responsibility! She claims that if I ever get a publishing deal for the projects she represented, she is to be paid the agent’s commission. Is that legal?”

This is an issue I just can’t fathom. I understand getting paid if I’ve done the legwork — let’s say that I’ve worked with an author to develop a project, showed it to publishers, and started to get some interest. If the author hears about it, fires me, then approaches the same publishers to try and get the deal and save themselves the 15% commission, I should still get paid. I state in my agency agreement that if I’m working with a publisher on your behalf, I’ll still get paid even if you fire me and do a deal with them within a year.

But I’ve seen this a few times lately — an agent claiming that if you EVER sell the book they represented, they’ll still get paid. To me, that sounds like a scam. I’m not a lawyer, so I cannot give legal advice, but I would think this would be awfully tough to have stand up in court. My advice: read any agreement carefully before you sign it. If the agent has a clause that’s incredibly restrictive like this, ask to have it altered.

Okay, I’m just working through a bunch of the questions people have sent me. What have you always wanted to ask an agent?

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