Literary agency contract for idiots – that’s how I’m describing the contract below. One of my 1-on-1 coaching clients was recently offered this contract from a supposedly legitimate literary agency.
No, she didn’t sign it.
That’s because she’s not stupid (and, even if she was, I wouldn’t have let her sign this literary agency contract). That’s one of the many advantages of having me in your corner as a consultant.
Now, I’m not going to reveal the name of the agent that created this literary agency contract, so he can’t attack me. And, for the sake of space, I’m not going to print the entire literary agency contract. However, I am going to reveal all of the “stupid clauses” that only the most desperate author would agree to.
* * *
Literary Agency Contract – Important
The reason I’m writing this article is to prevent you from signing a literary agency contract for idiots. Not because I think you’re stupid, but because you’re probably not a lawyer. And, even if you are, some of the things you’re going to see below are subtle.
Now, before I share all the idiot clauses in this particular literary agency contract, I should explain why a literary agency would want to take advantage of an author.
It’s sad and simple.
Publishing is a business, no different than any other. There are ethical book agents who want to be fair and create win-win situations. Then there are predator agents only interested in their bottom-line.
Sharks…
I know, you’re supposed to be able to trust your agent. After all, a popular synonym for literary agent is “author representative.” The word representative means someone standing, or acting for, another and his or her best interests.
Okay, enough introductory banter.
Here are the clauses…
* * *
Literary Agency Contract – Idiot Clause #1
Any product that results from negotiations, promotions or representations conducted by the Agent or anyone else during this period of this Agreement, shall be included within the definition of the Work.
So… what if, after the book is published, the author independently creates and produces a related workbook, t-shirt, card deck, board game, etc.? If you were that author, would you want to give 15% of all your income from that to your agent?
I don’t think so…
* * *
Literary Agency Contract – Idiot Clause #2
As used herein, the Work shall include any and all derivatives resulting from or about the basic concept of the Work.
Yikes.
This literary agent contract clause says you’re obligated to give your agent 15% of absolutely anything related to your book. That could include appearance fees, workshop fees, speaking fees, etc. Even if you’re the one responsible for making it all happen.
The word “derivative” would also include any sequels to your book. Or, what if you decided to write a new book series, using one of the minor characters from your first book as a new lead character?
Oops, derivative.
Time to whip out your checkbook…
* * *
Literary Agency Contract – Idiot Clause #3
In general, the Work as used herein, shall be broadly construed to encompass all economic benefits, however described, which result from or because of the Work.
Wow.
Could this literary agent contract clause be any broader? They even use the word “broadly.” So let’s say that a TV show producer reads your book and contacts you directly to offer you a spot as a host on TV that has nothing to do with your book.
You’ll be paying your book agent for that, too.
* * *
Literary Agency Contract – Idiot Clause #4
The Agent is hereby assigned Fifteen Percent (15%) of all economic benefit which the Author receives from the Work, including advances, royalties, licensing fees, percentage payments, contingent payments, acquisition fees, product endorsements, syndications, residuals or any other monetary and/or economic benefit whatsoever.
Talking about product endorsements in a literary agent contract?
Seriously?
So if you’re asked to be a spokesperson for xyz company, and you get paid, you’re expected to give your literary agent a piece of that action also?
Ridiculous…
* * *
Literary Agency Contract – Idiot Clause #5
Any entity owing Author any economic benefit as described herein shall make the payment assigned Agent directly to Agent and the contract shall so provide.
Are you starting to see that this might not be the best literary agent contract for you?
Not only are you expected to give 15% of your speaking fees, etc., to your agent… you’re also now expected to ask the organization paying you to make the check out to your agent, then wait for them to pay you.
That’s absurd.
If your literary agency also runs a speakers’ bureau and you’re interested in them representing you as a speaker (and getting you gigs), sign a separate agreement for that.
It doesn’t belong in your literary agency contract.
* * *
Literary Agency Contract – Idiot Clause #6
The Agent shall be responsible for the Agent’s own costs in connection therewith, including, but not limited to, travel, entertainment, telephone, and other similar out-of-pocket charges. However, once a contract is signed, the purchaser of the Work or the Author shall be liable for all of Agent’s travel and other expenses in connection therewith.
That’s rich… for your agent.
Sure, you’re going to agree to reimburse your literary agent for any travel and entertainment expenses that they see fit.
Idiot clause extraordinaire.
Don’t approve this clause in your literary agency contract.
* * *
Literary Agency Contract – Idiot Clause #7
The Author will be liable for payment of all attorney fees incurred for negotiating all contracts with any entity involving the Work and the Author, should an attorney be required.
Scratching my head…
Um, I always thought that one of the main reasons you hire a literary agency is because they have the knowledge and experience to negotiate your publishing contract for you.
If your book agent needs to hire an attorney to figure out your contract(s), they probably aren’t qualified to be an agent.
And you shouldn’t be signing their literary agency contract.
* * *
Literary Agency Contract – Idiot Clause #8
The Author agrees that without the prior written consent of the Agent, the Author will not prepare, write, publish or collaborate in the preparation, writing, printing or publishing, or allow his name to be used in connection with any Work on the same general subject as the Work that will compete with and interfere with the sales of the Work.
Common clause, but…
It doesn’t belong in an author/agent agreement. This clause belongs in the contract you’ll be signing with your publisher.
* * *
Literary Agency Contract – Idiot Clause #9
For a period of two (2) years from the date of this Agreement, Author agrees to be represented exclusively by the Agent regarding the Work (“Exclusivity Period”).
One year or less is standard.
If your book agent wants to represent you for more than a year, he or she needs to earn it… by making a real effort to try and sell your book during year one. If your literary agent does that, you might want to sign a new literary agency contract for a second year.
But it should be your choice.
* * *
Literary Agency Contract – Idiot Clause #10
In no event shall the Author or Collaborator communicate directly with the Publisher or other third party purchasing the Work. Instead, except with the Agent’s express written permission, all communication, including transmittal of drafts of the Work, shall be transmitted through the Agent to the Publisher or third party purchaser of the Work.
This literary agent is a control freak.
Really…
You’re expected not to have any communication with your editor or anyone else at the publishing house… without mommy or daddy agent saying it’s okay or looking over your shoulder?
Get a grip.
* * *
Literary Agency Contract – Idiot Clause #11
The Author agrees and understands that the Author, rather than the Agent or Publisher, shall be responsible for the publicity and marketing of the book.
Okay…
You probably know that authors share the responsibility of promoting books. But this clause just makes the literary agent look like an idiot. Plus, it makes me feel like the agent doesn’t want to be held responsible, in any way, for whether the book is successful after a deal is done.
This clause has no business in a literary agency contract.
* * *
Literary Agency Contract – Conclusion
Would YOU sign a contract that had all of those clauses in it? Have you ever been offered one? What do you think about literary agencies that have these types of contracts?
Tell me in the comment section below…
Not all literary agents are idiots, so don’t lose hope. Don’t be naïve, either. Although most literary agents are reputable and trustworthy, some of them aren’t. Publishing is a business and you can’t blindly commit to the first literary agent that offers you representation. If you do, it can cost you hundreds of thousands of dollars, or more.
Like this article?
Leave a comment below… AND click on the following link to learn about the clauses that SHOULD be in your literary agent contract.
For more information on choosing the best literary agent, click here to read my free 15-part Guide to Finding a Literary Agent. Click here to read my free 8-part Guide to Hiring a Literary Agent. Then click here to learn about 3 different ways that you can get 1-on-1 help from me (free to fee) as your Book Marketing Coach. You can ask me questions on my blog, schedule an introductory consulting call with me, or join one of my longer-term coaching programs.
– Mark
* * *
Mark Malatesta
Your “Undercover” Agent
* * *
* * *
MARK MALATESTA is a former literary agent turned author coach. Mark now helps authors of all genres (fiction, nonfiction, and children's books) get top literary agents, publishers, and book deals through his company 
MARK MALATESTA is a former literary agent turned author coach. Mark now helps authors of all genres (fiction, nonfiction, and children's books) get top literary agents, publishers, and book deals through his company 
Hi Mark,
As you say there are some sharks out swimming with the goldfish. Your article shows that although we don’t often read the small print, we should. The contract offered seems nothing more than a big rip-off with the client liable for all sorts of extra costs and conditions detrimental for the author. Thankfully she was wise enough not to sign. For sure I would not have done so.
Thank you Colin, always good to read the fine print!
Have a great week,
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Hi Mark, Thanks for being a true reality anchor for my creative author’s mind. Leading to the clauses you prove a kinship with writers. Listing the outrageous snares separately gives pause for thought. Soooo grateful to know you can help extensively.
Thank you Evelyn and have a good night. 🙂
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
WOW….Thank you, i was NOT a where of All those Clauses!! I know now exactly what to look for. Your blessing!!!
Thank you Mark,
and have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Hey Mark,
Thank you for this article.
One of the things I appreciate about getting to hang out with you is while I’ll never be able to afford you, you still share freebies like this. I have learned more from this blog than most people forget, so thank you.
Blessings,
MacKenzie Raye
Thank you MacKenzie, I very much appreciate you taking the time to say that. And of course I hope you let me know if you get an agent and/or publisher.
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
This is why I have only self-published so far. Why in the @*!$ would I pay a percentage for even the sales of just the book, much less all semi-related income, if I am the only one doing the publicity and marketing??? I will just print the $#@! thing too if that all they are offering to do. It is so much work to market and promote a book. I want full profit. Period.
Hi Cristine, here’s to publishing the right way. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Mark, Keith here. After about 5 months of unbelievable hardships both personal and business I am ready to give my “work” the same enthusiasm that we started out with.
I have appreciated your “keeping in touch, but not over-powering my decisions to handle real life first. I had to handle matters before my “work” happens. You are the consummate professional and friend. Thank you.
Idiot contract, hope to have a couple for you to guide me through soon. Thanks again, Keith
Hi Keith, I’ve been backed up on online comments. Make sure if/when something big happens you contact me privately so it doesn’t take me so long to reply, since we’re working together. 😉
Glad you’re still in the game and, as long as you keep taking it one step at a time and moving forward, you’ll be just fine. As you know, I’d love to see you get a contract!
Keep on keeping me in the loop.
And have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
NO I wouln’t sign it. Your article doesn’t cover overseas issues. Can you talk about that? The contract I have and haven’t signed wants 15% us and 30% overseas.
Hi Sandi, glad to hear it. Regarding international and other subsidiary percentages, those vary. Most agents require only 20% for most overseas deals. The higher percentage is because they often enlist the help of a sub- or co-agent and they split the higher commission. Each agent makes 5% less than the normal 15%, and you pay an extra 5%. Mark
So do you have a sample form agreement to use as a guide. | Literary Agency Contract
Hi Jim, I don’t think so… but I did find this article that is the next best thing: https://literary-agents.com/hiring-a-literary-agent/literary-agent-contract/. Hope it helps. Mark | Literary Agency Contract
Hi Mark
Great enlightening article. At least, we have a reference point when we get a literary contract so we know whether it’s an idiot contract or a genuine one. I’ll keep this article in my folder just in case. | Literary Agency Contract
Hi Saw Lian, are you close to sending out your memoir yet? How much longer, do you think? I’m looking forward to celebrating your success with you. By the way, I just saw this comment that you posted a long time ago… not sure how I missed it but I did. Anyway, have a great weekend and see you soon. Mark | Literary Agency Contract
Yikes! I have no idea what all is supposed to be in a “good” agency contract. I feel like a babe in the woods. Now I have to worry about scrambling away from all the wolves out there who want to sink their teeth into my…tasty prose.
Thank goodness I know an undercover agent who’s looking out for me!
Can’t wait to see what should be in my first contract. Looking for the story now… | Literary Agency Contract
Hi Jalynn, nice talking with you today and thanks for stopping by my blog! Yes… don’t sign anything with anyone until you talk with me. 🙂 I know you won’t. Happy writing and have a great rest of the week. Mark | Literary Agency Contract
Now that I’ve read the post… I agree with you, and no, I wouldn’t have signed the contract. LOL
When I do get an agent, I’ll be very picky. I’ve heard a lot of good and a lot of bad about them. You have to be very picky and you should understand each clause of a contract before you sign it. | Literary Agency Contract
Hi Becca, I didn’t think so. And I’m glad you’re picky. All agents are definitely NOT created equal. Mark | Literary Agency Contract
I saw I won the gift card… I hope I’m not too late. I’m going to read all this now. :p | Literary Agency Contract
Not too late Ms. Becca. The gift card, and all my gratitude, will be sent to you shortly. Thanks for being a part of my online community and frequently posting! 🙂 Mark | Literary Agency Contract
Thanks for the gift card! I’ve ordered a book that I’ve wanted for a long time and it will arrive two days before my bday! So, I guess I should say: Thanks for the bday present! 😉 LOL | Literary Agency Contract
Well it was definitely meant to be then. Happy Birthday! Mark | Literary Agency Contract
my apologies. I didn’t read all of it. I get ass kicked by photographers because I read all fine script and if I think something is unfair, I don’t sign–it doesn’t matter how much bluster there is about me earning gobs of money or becoming rich overnight, etc because that’s all hot air. What matters is what is in the fine print on a contract.
1. and 2. would have been automatic walkaways for me. Their almost mirror images in fact because they talk about derivative work. to be cont \ Literary Agency Contract
hi pogo, people who use language like that in this literary agency contract make me crazy. the good people in this world (I’m including myself in that group) just want to do the right thing and expect/hope everyone else to do the same in return. but it’s not always that way. it’s a sad thing when you need an agent to protect you from your agent. Mark | Literary Agency Contract
agreed. lots of folks hate thinking for self. see word “agent” and don’t think “double”. they’ve never heard of professional ethics and never consider ©. They read/ hear $$$$, sign dotted line w/o thinking they’re paying $$$$ double agent. I quit reviewing books because writers sent me hate mail, making ridiculous demands for publicity. It cost me 200-300USD / month to do reviews for people who did very little for themselves & then demanded 40-60hrs wk/circulating badly written work. can’t | Literary Agency Contract
the microstock licens allows buyer to slice, dice, amputate, blur, regurgitate the image and the buyer can then sell the regurgitated image for astronomical prices. Photog gets nothing. the photog pays 2500 USD for his lens and gets rewarded with 20cents image under license.
2. is clearly stated. photog/author loses big. Signs away his copyright basically. Ok orignal copyright keeps, but often the derivatives far outvalue, outmarket the original book/thing. Think of Disney products.cont. | Literary Agency Contract
See, publishing isn’t the only industry with dirty tricks and shady sharks. That’s ridiculous. Mark | Literary Agency Contract
photography is only sub-industry of publishing in reality, but most photographers have little comprehension of publishing industry– seriously so. They have very little comprehension that when traditional publishing crashes, so do the photo agencies dependent on the outlets. Very few photographers have any comprehension of basic copyright– they’re happy to go shoot illegally in museums and ell the images of prohibited shots, but if somebody nicks a low-res image off their site, they scream. | Literary Agency Contract
pt2. public usually takes support of the poacher. Case in point: Obama poster. very cheap editorial photo was nicked from AP and then repainted as Hope by Shepard Fairey, Fairey earned big. AP lost big, but the photographer lost biggest because he has to pay for his lenses, travel, etc. maybe buying the license off AP editorial would have cost Fairey 50USD. He stole it instead. Public outrage that Fairey got hit with copyright violation. photography painted evil and greedy for protecting © | Literary Agency Contract
Interesting case study, thank you for sharing this. Mark | Literary Agency Contract
incidentally this char count limit sux. Nobody with much thought answer this questions very intelligently. so maybe the character limit is just to control responses and shut folks like me up.
think #3 is one of the ways Maria Callas financially destroyed herself as she made an original contract with husband as her exclusive agent and trying to recover the unwarranted fees to him after the contract / marriage broken cost her heavily.
11. is normal sharksters in vanitypubs. Marketing is $$$$$ | Literary Agency Contract
i know you weren’t trying to be funny, but your comment about the character count for comments made me laugh out loud. It does the same thing to me… makes me nuts… but it helps me say more with less letters. It helps other people do the same, and keeps them from taking my pages hostage with mindless meanderings or shameless self-promotion. Well, at least it helps. Beware the vanity pubs. 🙂 Mark | Literary Agency Contract
Thanks for this. It’s always helpful to get familiar with what to expect in contracts. (I’m familiar with a different kind, from my real estate experience.)
I do have a question. What about “rights” — like film rights? Is it possible for an author to retain such rights? Is it highly unusual? Someone once advised me to make sure I keep those rights. I’d like to be more familiar with this area of typical author-agent negotiation. Also foreign rights. | Literary Agency Contract
Hi Ellen, I can only imagine what you’ve seen with real estate contracts. It’s not unusual for an author to ask her agent to hold on to film rights and not include them in a book deal. But it’s not very common for an author to prevent the agent from controlling the film rights… because most authors wouldn’t know what to with them. I’m guessing you mean not giving those rights to the publisher? Mark | Literary Agency Contract
Scary! I’ve seen a couple of these before but not all of them. When you are just starting out you are eager to please, you are a prime target for highway robbery.
Thanks for this informative look at this contract. | Literary Agency Contract
Easy to miss some of them. Best to read a contract like this when you’re not sleepy. Thanks for posting. 🙂 Mark | Literary Agency Contract
Brazen and shameless! | Literary Agency Contract
I know, right??? 🙂 Mark | Literary Agency Contract
Wow! I’ll admit, I probably would have been fooled by the first five conditions. But the sixth condition and beyond were the real kickers for me. I got a “Billy Joel” vibe from the whole thing, if you get my meaning. I think “control freak” is an understatement! Thank you for showing us some of those red flags. | Literary Agency Contract
I love pulling back the curtain and shining the like on unseemly creatures, like the agent who came up with this contract. It’s hard enough as an author, getting books written and finding agents willing to represent you. The last thing that you should have to worry about is protecting yourself from the person who is supposed to be protecting YOU. Thanks for posting. 🙂 Mark | Literary Agency Contract
Interesting read. Definitely sneakiness all around. I turned down an agent due to similar shenanigans. Regarding clause #9 is it best to have it say 1 year or no time limit, “til infinity and beyond” 🙂 with a 30 day clause to notify to get out? Thanks! | Literary Agency Contract
Agents prefer one year with automatic renewal unless you put something in writing after the first year. Authors prefer one year (or less) with no renewal unless something is put in writing before the end of the year. And yes, some kind of 30 day rule usually applies. Mark | Literary Agency Contract
Oh, gosh. What a horror of an agent! Thank you for sharing, and breaking down the segments, Mark. A real eye-opener, indeed! | Literary Agency Contract
Hi Glynis, happy to share. When I was an agent, I wouldn’t have imagined a book agent offering a literary agency contract like this. Now I’m seeing how careful authors need to be, since I see every single literary agency contract that is offered to my 1-on-1 coaching clients. Thanks for posting, and especially for being the first! 🙂 Mark | Literary Agency Contract
Wow! Now that’s a scary contract! Glad to know that you are in my corner.
Kitty | Literary Agency Contract
Hi Kitty! Great to see you… although your comment went to spam. I had to rescue it. Yes, I am in your corner. Email me an update on everything when you get a moment. You probably already know this, but I met with D. and S. this week. It was an unusual situation with the two of them wanting to participate so it seemed appropriate. I think they got a lot of out our time together and I’m waiting to see if we’re going to do more. Thanks for making the connection. 🙂 Mark | Literary Agency Contract