Our last column analyzed provisions customarily included in agreements between performing artists and managers. Several of the same concepts also apply to agreements between authors and literary representatives. Although literary representatives do not seek employment for their author clients, they frequently are referred to as agents, as we will here.

The Agency Clause

Not all literary agents enter into separate written agreements with authors. Instead, agents often wait for preparation of the publishing agreement. It will contain a provision (the agency clause) specifying at a minimum that the agent (or agency) is empowered to act on behalf of the author in all matters arising out of the agreement, to receive all payments due under the agreement, and to deduct its commission before sending the balance to the author. Although agents are not parties to publishing agreements, publishers ordinarily do not object to the practice of inserting an agency clause in the agreement.

Often these relatively short clauses entitle the agent to a commission on more than the mere publishing rights being conveyed by the agreement in which they appear. For example, the agency clause may attach to matters arising out of the author's “work” instead of just to the publishing agreement. Accordingly, if the publishing agreement reserves audiovisual rights for the author, the effect may be to entitle the agent to a commission from the disposition of audiovisual rights. The argument made by the agent for this entitlement is that in representing the publishing rights, the agent was an important factor (albeit an indirect one) in achieving revenue from ancillary uses like TV and film following the book's publication. The author, however, should be made aware of this outcome.

Separate Agreements

An agency-author agreement made at the outset of an author-agent relationship rather than when the publishing agreement is being executed can cover a range of important details that don't fit in a single agency clause. For example, it may start by describing the works covered by it, which might be one or more particularly designated works or, alternatively, all works written by the author during the term of the agent-author agreement. In that instance, issues may arise in determining what “written by” embraces—for example, when a work is started but not completed during the term.

An author-agent agreement ordinarily will designate the agent as the author's exclusive representative during the term of the agreement. Then, even if the author is able to place the work with a publisher without the services of that agent, or another representative hired by the author finds or completes the deal, the agent will be entitled to a commission if a publishing agreement is entered into during the term.