Self-Publishing and Author-Agent Agreements: The Need for Change

Posted by Victoria Strauss for Writer Beware

Earlier this week, I ran across a blog post by best-selling author Claire Cook  about the process by which she decided to become a hybrid author, ditching her high-powered agency in the process. It's an interesting story--but what really caught my eye was this:
And then one day on the phone my agent informed me that in order to continue to be represented by this mighty agency, I would have to turn over 15% of the proceeds of my about-to-be self-published book to said agency. Not only that, but I would have to publish it exclusively through Amazon, because the agency had a system in place with Amazon where I could check a box and their 15% would go straight to them, no muss, no fuss.
I've warned in the past about interminable agency clauses in author-agent agreements (language through which an agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates for your book, but for the life of the book's copyright). One of the many concerns raised by such language is what happens if you want to self-publish backlist books that the agency originally sold for you. With an interminable agency clause, might your agency feel entitled to a share of your self-publishing income?

I don't know if Cook's agency agreement included interminable agency language. Even if it did, the agency's commission claim wasn't being made on her backlist books, but on an original novel that the agency had never submitted or sold to a traditional publisher. This is a completely different issue. Simply because Cook was the agency's client, the agency felt it had a claim on her original writing even though it had no hand in placing it--and, moreover, that it had the right to require her to use its own self-publishing channel, rather than a platform or platforms of her choice.

Contract language often lags behind technological innovation. For instance, years after the advent of digital publishing, many publishing contracts still don't include adequate rights reversion language (I've written here about why that's a problem).

The same is true for author-agent agreements, many--if not most--of which don't address self-publishing at all. Right now, I'm sure that most self-publishing questions are dealt with amicably one-on-one between author and agent. But with more and more writers choosing to become hybrid authors, and more and more agencies branching out into publishing and self-publishing-related activities, those kinds of informal resolutions aren't enough. For the protection of both author and agent, author-agent agreements need to explicitly address what happens (or doesn't happen) when clients self-publish, either on their own or through the agency. 

To date, I've seen one author-agent agreement that does this. I'm sure there are more out there, though I'm guessing they're the exception. They need to become the norm, and sooner rather than later.

In the meantime, authors would be wise to discuss self-publishing with their prospective agents, including:

- What happens if I decide to self-publish my backlist? (If you're a debut novelist, this possiblity may seem an awfully long way off, but you are hopefully signing on with your agent for the long haul, and at some point your books are going to go "out of print.")

- If the agency has its own self-publishing system or publishing venture, will I be required to use it?

- What's your position on hybrid authors? Will it be a problem if I want to self-publish original work? What, if any, claims will you make on such work?

- Will you market subsidiary rights for my original self-published books? (Responses on this will vary; some agencies may not be willing to rep subrights for books they didn't sell.)

Be sure to get, or confirm, the responses in writing.

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