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.
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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…
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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…
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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…
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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.
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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…
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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Mark Malatesta
Your “Undercover” Agent
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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 
Thanks, Mark. I feel wiser now.
🙂
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
No matter how excited I was to land a literary agent, red flags would go up in my head as I read this contract. I would not sign it. This is good food for thought for future reference if so happens I do have dealings with such a shady outfit.
Hi Patty,
Glad to hear it, and don’t worry… most agents and their contracts are fine. This was just to illustrate the point that not all of them are. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Thanks for this, Mark. While some are obviously off the wall, to the uninitiated, it helps to know what is and is not acceptable. Very cool.
🙂
And have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
I was given one such contract last year – the agent used to spend long hours at night writing me emails(with spelling mistakes), trying to drag me in. When I read the contract I experienced a real bad feeling about it, and there were spelling mistakes in that too – so I said ‘No thanks’. Even New Zealand’s Society of Authors said they did not have the agency on their books or know anything about them.
Hi Kerin, that’s not good… but don’t be too hard on publishing professionals when it comes to spelling mistakes. It’s often just a sign of us going a little too fast because we’re trying to help so many people. 🙂
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
I cannot believe what I read! And I’m so glad you clarified each clause, because, truthfully, not much of it made sense to me. Were all these clauses from the same contract?? So glad you put it out there for people like me. I’ll leave the contract reading to you, Mark!!
Hi Carolyn, I don’t remember at this point if those were all from one contract or a combination of things… since I wrote this quite some time ago. Regardless, they are things to avoid. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Some of these look familiar. Have definitely had offers from people who want this in their agreement. It’s a real laugh. My question is how can we narrow down the amount of exposure we get to these jokers? Seems like the bad ones are mixed in with the good ones most of the time. Leaves for a lot of sorting and wasted time.
Hi J.F., submitting to AAR agents will keep you safe from most things like that… for the most part. Beyond that, you have to pay attention to who’s good and who isn’t. I help my coaching clients figure that out. It’s time-consuming, but worth it. Getting a mediocre (or bad) agent is almost as bad as not getting one at all. So look to see who has a lot of sales to major publishers and/or bestsellers under their belt. That’s the easiest way to start sorting through everyone.
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
I hope I can use this information because I’m desperately searching for an agent to represent me and my novel. I would appreciate any more help or advice you coueld share with me.
Christopher P.Nichols
My novel is DALLASSARTS (DALLAS BLOOD) A theatre adventure romance-family saga, historical.
Hi Christopher,
The first thing you should do (if you haven’t already) is click here to access to all the valuable resources I have about getting an agent in my private, members-only area (no charge): http://thebestsellingauthor.com/membership/. Once you’ve entered your name and email address there, click on the link that says, “Audio Training Library”. Then you’ll see my main audio training (and text transcript), which reveals the 7 Insider Secrets You Need to Know to Get a Top Literary Agent, Publisher, and Book Deal.
If you want help with anything else, you can post a more specific question for me online here: http://thebestsellingauthor.com/ask/. And you can register for an introductory coaching call with me here: http://thebestsellingauthor.com/coaching/intro-call/.
Either way, I’m looking forward to learning more about you and your work.
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Sad thing is, there probably are several authors who are desperate enough to sign a contract like that.
Hi Nikki, that’s true… but the good news is that most agents (and their contracts) are decent. 😉
Have a good night!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Mark,
Most interesting… in much the same way a freshly washed and waxed car finds itself caught in the flight path of a flock of starlings who have just left the berry patch.
Thanks for the insight.
Geoff
Hi Geoff,
Okay, you got me too laugh out loud…
Thank you for that, and have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Wow! This contract was truly horrifying! Thanks for sharing.
🙂
And have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
We are writers that typically research the details of the project we are writing about. In difference to other vocations, we should be decently prepared to publish our work. It appears the publishing industry are addicted to causing foul in our attempt to complete our work. I have completed my first novel and enter the publishing arena with great caution. Thank you for demonstrating some of the road caution signs that will help me to avoid tragedy. One cannot be over prepared. Thank you.
Hi Tom, most agents and contracts are fair… this article was just a warning against being completely naive. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Whoa–never tho’t ahead to the contract~! Excellent to know the traps to watch for. Many thanks.
Hi Toni, it is putting the cart before the horse… but it’s never too early to learn about all aspects of the business. Thanks for your comment.
And have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
This is a very important issue. Thank you, Mark, for addressing it. Scams are so prevalent these days, and it’s so easy to get scammed without realizing it until it’s too late. It’s comforting to have the right people on your side.
Thank you Chris, and I’m glad the article was helpful. 🙂
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Wow, did this agent also want the author’s first male born child?
Hi Carl, I might have missed that part, but I don’t think it went quite that far. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Well put Mark! The literary agent/agency wants the author to become a money earning slave with hopes of being paid a few bread crumbs…Similar to a Pimp with his prostitutes
Hi Flash, it’s really not that bad… I simply showed the extreme to get everyone’s attention. But most agents, and their contracts, are (for the most part) fair and decent! 🙂
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Hello, Mark!
It does surprise me that any agent would stoop to this level. Thank you for the warning. Of course, I’m glad to have you in my corner! Why is it, by the way, that the agents use such ‘fancy’ language? It’s too easy to question such material. I look forward to your answer! the best, Esther
Hi Esther, sometimes it’s simply the agent not fully thinking through the implications of some of what they’re saying… or asking for. Regarding the fancy language, that’s probably more because of their lawyers, which often like to (consciously or subconsciously) intimidate through writing that’s too complex. Literary fiction authors often do the same thing!
Have a good night,
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Did this really happen? I have 25 books to sell! I absolutely don’t want to end up in this mess. I’ve been writing my a** off for nearly twenty years. What are the chances that I can actually see my works on real shelves? This seems hopeless. Is there any chance for a new writer to break in? Come on Mark, what’s the deal?
Don’t give up, Paul! Others break in very day, so why not you? But it’s neither an easy nor a fast process. Every successful writer will tell you they were rejected MANY times. I’ve been writing and publishing my work for almost 20 years and Mark seems on the up-and-up, the real deal. Keep at it!
Thanks Jon, and have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Hi Paul,
Yes, clauses like that do exist… but don’t despair… most literary agency contracts are fair. And don’t lose hope when it comes to getting an agent’s interest. No matter how many queries you’ve sent out so far, one can often get a drastically different response by tweaking or changing your pitch materials (query letter, book proposal, manuscript, etc.).
My favorite example of this is one of my coaching clients who’d pitched her favorite “dream” agent three times over the course of two years. Rejections every time. After I helped her rewrite her query letter, she approached the same agent a fourth time and he requested the full manuscript. So don’t get too discouraged. You might just be a few changes away from getting what you want.
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Before I would agree to sign anything, it will pass through you. Thanks, Mark
Hi Jerry, I certainly hope so. 🙂
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Thank you very much for that information. That is all good to know!
🙂
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
Hi Mark, this really was some very useful information. I actually am an attorney, but I would be so thrilled to be offered agent representation that I probably would agree to these terms. Thank you for pointing out the do’s and dont’s.
Thanks Meryl for sharing your background that you are an attorney. I truly recognize the world of specialization when I ask this question. Since the publishing world is so loaded with scams, is there a source for a good contract with an agent that we can compare. It would give us some idea of how the agent is twisting and deviating from the ideology. Professional help is expensive. If the contract offered compares favorably you are asking a professional for a less costly second opinion.
Hi Meryl, I love it… thank you for posting that.
And have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com