Friday, July 17, 2009

Saying Goodbye...

have you ever done an essay on how to dump an agency and how an author should go about doing that before moving on to another agency?

I don't know if I've actually blogged on this subject specifically, though I've advised potential clients on it.

Leaving an agent is actually fairly easy. Simply look at your written representation agreement and follow whatever termination and notice clauses are contained within it. If there are none, or you have no written representation agreement, then you could simply send a letter via Certified Mail, with a copy sent First Class Mail also, in case the agent doesn't claim the Certified letter at the Post Office, to the agent, terminating the relationship.

Here's a sample letter, along with the necessary disclaimer:

The following suggested letter regarding termination of representation is provided without any warranties or representations. Neither The Zack Company, nor any employee thereof, is engaged in the rendering of legal services or opinions. If you have any concerns regarding the legal nature of this language, you are urged to seek competent legal counsel. In no way does The Zack Company assume any responsibility for the use of this letter by any individual or corporation in any way.

{Your Name Here}

{Your Address Here}

{Your Telephone Number Here}


{Name of Agent}

{Name of Agency}

{Address of Agency}

RE: Agreement dated {Date} between {Name of Agency or Agent} and {Your Name or Your Corporate Entity's Name}

Dear {Name of Agent}:

This letter shall serve as official notice of my termination of the Representation Agreement referenced above. Said Agreement is hereby terminated, effective {immediately/30 days/some other period detailed in the Agreement}. You are hereby directed to cease and desist in any activities in which you may be engaged on my behalf, including but not limited to, the marketing of rights to any of my Work(s) anywhere in the World. You should, effective immediately, no longer hold yourself out as my literary representative or agent with regard to any properties in which I am involved and you should make no further submissions or contacts with editors or publishers regarding those Work(s). Any unsold rights in and to my Work(s) shall henceforth be handled {by myself/my new Literary Representative}.

Notwithstanding the foregoing, I understand and agree that you are the "agent of record" on the following Contracts with Publishers and that you shall be entitled to receive Commissions on such Contracts, as per the "Agency Clause" which appears in those Contracts, provided that you continue to fulfill your fiduciary duties with regard to such Contracts, including but not limited to the administration of any advances, royalties or other income generated by such Contracts.

{List of Contracts}

In order to effectuate the proper transfer of information regarding my Contracts, please forward a list of any and all outstanding submissions on which you intend to claim Commission within ten (10) business days of your receipt of this letter. If I do not receive such information within that time, I will conclude that there are no such outstanding submissions.

I appreciate that you have been a passionate advocate for my Work(s) in the past and I expect that we shall continue to have a professional and amicable business relationship with regard to any Contracts on which you are the "agent of record." Please do not hesitate to contact me with any questions or problems.


You may wish to "cc" your attorney, if you have one.

Now, it is worth noting that simply terminating representation might not terminate your obligation to pay a commission on other sales. Some agency agreements state that an agent keeps representing the subsidiary rights to works that were sold during the term of the agreement (the works, not the subsidiary rights). Thus, you could have sold a novel in the US, then terminated representation, but the agent could still be your agent on foreign rights or TV & film rights to that book, even though you terminated representation. The Zack Company does not operate this way, but some agencies do.

My understanding is that you cannot be forced to allow an agent to represent you if you don't want that agent to represent you. However, you may still be legally obligated to pay the agent the commission on any deal you do. For example, if your agency agreement says that you will allow the agent to continue representing and earning commissions on rights to works sold during the term of the agreement, after termination of the agreement, but you don't want that agent licensing rights or representing you, you might be able to stop him or her from actually doing the selling, but if you get a new agent and he or she does a deal for, say, the film rights to a book sold to a publisher by the original agent, you might find that original agent comes knocking and looking for his commission on the deal, even though he didn't do the deal. Because, you see, you may have obligated yourself to pay commission, even though the agent is no longer your agent.

Thus, read your representation agreement carefully and consult an attorney if you feel the need, because things are not always as cut and dried as you think.



HemlockMan said...

Sounds straight up.

The last time I fired an agent it was a bit more straightforward and brief than that. Not rude, really, but terse.

And it seemed to have done the job just fine. Of course there were no outstanding contracts in the way in those days.

Andrew Zack said...

"The last time"? How many agents have you fired? Truth is, I lose very, very few clients and generally about half that I have have eventually come back to me, if I would have them.

HemlockMan said...

Only one, so far. She went into total radio silence and I had no recourse.

Weirdly, I had an agent who suddenly took ill and died. But that's not the same.

Anonymous said...

I'm curious about contracts that have an expiration date (say, one year) but stipulate you must both agree in writing if you wish to terminate before that date. Any thoughts on how one would approach that scenario? And what constitutes "agreement"-in your nonlegal personal opinion, of course.

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