Ask the Agent: "If I already have an offer, do I need an agent?"

Someone wrote me to say, “I was just offered a contract on my novel. Since I don’t have an agent, should I seek one at this point? Would it be better to have the agent simply review the contract for a fee?”

There’s quite a debate about this issue. I know several agents who would say, “If you already have an offer — call me!” I mean, they’d be happy to get 15% for a deal they’ve done no work on. But I have some doubts about the value in that type of situation. Let’s say you got a contract offer featuring a $10,000 advance. If the agent steps in, he or she takes $1500. Is the value of their work worth that? You can ask a contract service to review your contract for around $500. (But be careful… there are good and bad authors, good and bad agents, and good and bad contract review services. Make sure to ask questions, so you get someone who knows what they’re doing and has done it before.) A contract service won’t negotiate for you or improve the deal — they simply evaluate and report back to you. So if you have a bunch to negotiate this may not be your best choice.

You can also talk with an intellectual property rights attorney, but be cautious — they’re generally paid by the increment, usually by the six-minute increment for every phone call, email, conversation, or reading you ask them to do. It can add up fast. A good attorney can certainly help, and should be able to strengthen the contract. But in my experience you want to be careful who you’re working with — I’ve had too many situations where the goal of the attorney seemed to be nothing more than to keep the clock moving (though expect some attorney to come onto the comments to claim that never happens). The longer it takes them, the more they are paid. I know of several authors who ended up paying more to have a top-flight entertainment lawyer review the contract than they were paid in advance dollars. Yikes. Generally speaking, your family lawyer won’t have enough experience to really help you with a publishing contract — the guy doing grandma’s estate or your last real estate closing probably doesn’t know much about current publishing contracts.

As for getting an agent, I would say that you want to make sure the agent actually does something to earn the commission. He didn’t help craft the idea, didn’t help you polish the proposal, didn’t shop it to editors, so ask what exactly he’s going to do in order to bring value. Review the contract? Negotiate better wording and royalties? Assist with marketing? Shop your dramatic and foreign rights? Handle potentially sticky situations? Help with long-term career advice? Assist with other services, such as helping you self-publish your backlist? I’ve often had authors come to me with offers in hand, and I’ve frequently told them to pay for a contract evaluation, since it’s less money. I have sometimes agreed to take on an author, but usually for a reduced commission. And I would encourage you to think long term — Is there someone you want to work with? Is there an agent you like and trust, who can help you with your career, and not just this book deal? A good agent may be willing to take less in order to work with you. My advice: I don’t think it’s fair for me to take the full commission on a book I didn’t sell, but not every agent out there agrees with me, so talk with others and solicit some opinions. Congratulations on getting the book deal, by the way.

By the way, on a related note, someone asked, “Should I worry about a literary agent who turned me down, but suggested I work with his editorial service?

Absolutely you should worry. Here’s how this commonly works — you send a manuscript to an agent, who says, “I really like this, but it’s not ready. However, we have an editorial service here who can help you. For just $500, they’ll get this proposal ready for us to represent…” The agent sends you to his editor co-worker, then pockets half of that “editorial fee,” so he or she is making money off the author. That’s a total violation of ethics for literary agents (and I’d argue the reason we’re seeing some agents do this is because we’ve had a group of people jump into agenting who don’t really know what they’re doing). The Association of Author Representatives has a clear canon of ethics printed on their opening web page which precludes an agent from doing this very thing. It’s ripe with potential for abuse, since it’s too easy for a slimy agent to say to every author, “Hey, this has potential — let our editor work on this for a fee!” It turns authors into marks. Look, I have a bunch of freelance editor friends, and I will frequently say to writers, “This needs considerable editing. I can send you the names of some editors I trust, but what you work out with them is between you and the editor.” I don’t get a fee for recommending anyone, so I’ll send them three to six names of editors who are probably a fit for their type of manuscript. But we’re not an editorial service, and we don’t charge for that type of work. My advice: If an agent tries to cross-sell you some other literary service that charges you a fee, stand up and walk away. You can find a better agent.

And, since I”m on a roll, one other question: “I signed with an agent, but wasn’t happy. I fired that agent, and moved on to another. But now my first agent is claiming that anything I ever talked with her about is her responsibility! She claims that if I ever get a publishing deal for the projects she represented, she is to be paid the agent’s commission. Is that legal?”

This is another one I can’t fathom. I understand getting paid if I’ve done the legwork. Let’s say that I’ve worked with an author to develop a project, showed it to publishers, and started to get some interest. If the author hears about the interest, fires me, then approaches the same publishers to try and get the deal and save themselves the 15% commission, I should still get paid. I state in my agency agreement that if I’m working with a publisher on your behalf, I’ll still get paid even if you fire me and do a deal with one of those publishers I was just selling your work to. But I’ve seen the situation you’re describing a few times lately — an agent claiming that if you EVER sell the book they represented, they’ll still get paid. I’m not a lawyer, so I cannot give legal advice, but I would think this would be awfully tough to have stand up in court. My advice: read any agreement carefully before you sign it. If the agent has a clause that’s incredibly restrictive like this, ask to have it altered.