Wednesday, September 19, 2018

How long do they have their claws in me?

I parted ways with my agent a couple of years ago. I later found out some of the places they had claimed they had submitted the manuscript to never received it and a few editors asked me to resubmit the MS. One of the publishers is now quite excited by it. If an offer comes through, and the publisher wants me to work with an agent, then I will probably approach new agents to see if they are interested. But what happens with my previous agent? The agreement I signed says I will have to contact them to negotiate a commission to any publisher they submitted the work to, and they told me as much themselves. However, there's a few points...
1. The publisher who is now interested has a new editorial director, to whom I submitted the manuscript exclusively, the previous editor having left the company. I have no idea if my former agent sent the manuscript to that previous editor, though others in the same submission claimed they never received it. So technically my former agent may not have submitted to this company, though I won't be able to prove that.

2. I think there's usually a cap of 6 months to 12 months on this commissions maximum. My agreement indicates no such cap and seems to imply it's indefinite. It's been over 12 months.

3. The manuscript has been heavily rewritten and retitled since being submitted.

4. I am based in the UK, my former agent is in NYC, so not sure how that would work legally. I think the agreement is under NY law, whatever that means.

So, based on all of this, my question is, will I have to pay my former agent a commission or not? And if so, how big a percentage? Someone suggested I contact the agent and see if they will waive the commission, but I don't see them doing that. Someone else said to take the offer, say nothing, and wait to see what happens, but I'm not sure what I would do if this agent came looking for a commission. Any advice here would be appreciated. It's not that I'd be against paying a commission of some sorts but given a lot of the shoddy work and ethics this agent engaged in, I don't think they're entitled to one. But I'm not sure where I stand on that and have been weary to open any contact with the agent, as I feel intimidated.

Contract law varies by state, so absent language in your author agency agreement that says how long they have their claws into you, state law will govern.

Whether the editorial director changed, or the manuscript changed is not material here. The former agent submitted the work to the publishing company.

However, the agent will have to offer proof of that so you should hang on to the emails that said the publisher didn't receive it.

You would do well to buy an hour of time from a publishing attorney to ask for New York law on how long your former agent can claim commission on something.

What you need to remember is it will have to be MORE profitable for the agency to take you to court than not. If this book goes in a big sale, you're much more likely to hear from ExAgent than if it goes in a small sale. And it if does well, or godhelpus, gets made into a movie, well, stock up on carrion, cause the vultures will soon be upon you.

Ignoring this is not the best choice. Getting this sorted out before there's money involved is ideal.

Getting some advice and clarification from someone who has read your agency agreement and is familiar with New York state contract law is a better choice.

Takeaway for other writers:
make sure your author agency agrement specifies how long the agency can claim commission if you part ways and the book gets sold by someone else.


french sojourn said...

Interesting series of events. Initially it struck me as one of those...if two trains are leaving two different stations one travelling at 25 mph, the other.... but after a quick re-reid it made sense, interesting problem to have. OP good luck with the m/s and keep us posted.

LinnetQ said...

I'd definitely want a lawyer to look things over, especially before you might need to try to bring another agent into the mix. Contract law is not a beast to wrestle on an amateur basis.

That said, congratulations, OP, on the interest! That's got to be heartening, after your agent troubles.

E.M. Goldsmith said...

I get the make sure everything is spelled out when walking away. My real concern here is this thing where agent claimed to have submitted to publishers but had not actually done that.

It brings back a recollection of the "bad agent" from a few months ago that was fabricating submissions, rejections, and offers. She had tons of clients and had been doing this for some time. Still, no idea why. I can't imagine this happening too often. But still? How does a writer know their work has actually been submitted to the publishers? Is there anyway to tell? What is the policy of a proper agent when communicating the submission process with the writer? I hope that "sparing" the writer's feelings is not part of it.

Mary said...

I would like to know this also.

K. White said...

I agree. Janet's thoughts on E.M. Goldsmith's questions would be an interesting future blog post.

Ashes said...

Is there a checklist of all the things we are suppose to check for in an author agency agreement? Because the list seems to be getting fairly long and it seems important.

Colin Smith said...

While time with a NY legal expert might be expensive, in this situation I have to agree with Janet. Okay, in most situations I have to agree with Janet simply because I like my arms. But I digress... It's much better to get this settled now before you become a hot-shot best selling author than have to deal with a mess later. Not to say Ex-Agent still won't sue if you make it big, but at least if you have a contract attorney tell you you're on solid legal ground, you'll be able to enter the courtroom with confidence. Or have the case dismissed. However that works. :)

All the best to you Opie. And CONGRATULATIONS on the success you're having with your work!! :)

Colin Smith said...

Ashes: There's an article on Author/Agency agreements in the Treasure Chest. There might also be some links to archive articles on the topic in the Gems page.

The Treasure Chest is there for a reason, folks... :)

MA Hudson said...

Whoa, this is headache material! I too would love to know the answer to EM's question. What a minefield.
I definitely agree with getting all this sorted out before signing with a publisher/new agent. You don't want to be harbouring a sickening dread in the pit of your stomach while celebrating your awesome new publishing deal!