Monday, August 14, 2006

The Handshake Agreement

It wasn't too long ago that all agents used a simple handshake agreement with authors rather than the signed contract. After all, it was a "gentleman's business." At BookEnds, most of my clients have a written agreement; there are a few, however, usually those who come to us for what is expected to be one book only, who operate with a handshake agreement. These authors still have an agency clause in their publisher's contract, and until I hear otherwise it is assumed that we are working together on future projects. No matter what type of agreement I have with an author (written or handshake), I treat all my clients equally, contacting them with ideas I might have, or with information from a publisher, arguing contract points, and keeping an eye on royalty statements to ensure everyone is getting a fair deal. In fact, many of these handshake agreements have evolved greatly over time, with authors going on to write a number of different books (one author, I believe, has 11 to her name, and another close to 20).

While some agents still use the handshake agreement, I suspect there are two reasons that more and more are making signed contracts a mandatory part of business. The first is the growth of agents and agencies. With more agencies starting up every day, there's more competition and therefore a greater need (from an agent's perspective) for a written agreement.

The second is one that I can personally vouch for, since it happened to me just last week, when this handshake agreement came back to bite me in the ass (excuse the language, but I'm still burned up about it). Through an author's newsletter I found out that she had signed a second agreement with the same publisher I had sold her to, effectively cutting me out of the deal (and by the way, she didn't use another agent).

There are so many reasons I'm upset about this. One is obvious, the loss of potential income, but the others aren't as clear to an outsider and, frankly, probably upset me far more than the loss of income. After all, 15 percent isn't really that much given what authors get paid these days.

The first (although not the most upsetting) is that I'm not sure the author realizes that there's an obvious reason the publisher contacted her directly rather than going to me (okay, it is possible they didn't do any research and “forgot” I was the agent), but in my mind the reason is that they can get a bargain. I know what publishers are paying and have paid for certain types of projects, which makes negotiating the advance and royalties easier for me and tougher for the publisher. I also know all about those little extras in a contract that aren't fair to the author (and aren't that little). I wonder how she negotiated those? And don't even tell me she used the first contract I represented as a boilerplate. While I know it's perfectly legal, it certainly doesn't ring as ethical.

The second and most upsetting issue is really this author's dishonesty. When I approached her about the situation, her reaction made me realize that she really hoped she could do this without my finding out and save herself the 15 percent commission. Sigh. You know, I don't want to work with someone who doesn't want to work with me. Owning my own business gives me the freedom to work on projects I love with people I like, but I just do not get the whole concept of sneaking around. If she had told me, up front, that she no longer wished to work together and, possibly, even mentioned this deal, I'm sure I would have let her go. My job isn't to make someone else's life difficult, it's to make it easier.

There is some recourse to this—not much, but some. Obviously I won't be working with this author anymore and am currently in search of another writer with her expertise. There are other, similar projects headed my way all the time, and I like to have someone on board who can handle them.

My last thought on this matter concerns something I read recently about selling your home. It said that people who decide to sell their own home rather than go through a realtor usually undercut themselves 15 percent (when a realtor would only cost them 5–6 percent). It makes me wonder how much more an author pays when negotiating her own deal.

—Jessica

9 comments:

Christine Keach said...

That's a horrible way for the author to act! So unprofessional, but it really sounds like you're better off without her!

jolinn said...
This comment has been removed by a blog administrator.
jolinn said...

(sorry, that was me doing the typo-thing) I agree that a contract is good for all parties. I'd want everything laid out (in hopefully plain english) too. :)

Bella Andre said...

That sucks. Sorry to hear it.

I've heard the same thing about selling one's own home. Many business transactions (okay, most) need an expert. Publishing is certainly one of them.

Hopefully you'll find another author soon to fill this one's shoes.

Okay, off to write something sexy about a "bad boy" ;-) while baby sleeps...
;-) Bella

L. Faye Hughes said...

How is something like that even possible? Didn't her last contract have language regarding her option clause?

I'm thinking it did and you're just too nice to press the point. :)

Faye

Kathleen I. Paterka said...

While the author/agent relationship HAS to involve a professional business arrangement (come on, we're talking $$$ here), one would hope a person would take the high road and bring into merit personal consideration of the other person's feelings.

I work daily with attorneys who practice contract law, but when it comes to the "big bad world" of publishing, I'd much rather have a "pro" (i.e., literary agent) on my side negotiating that contract for me (first sale, as well as subsequent!). Agents are the real pros who know what they're doing. And they earn every bit of that 15%.

And I'd like to have an agent that could be a "friend", as well.

You don't stab friends in the back.

-Kathleen Paterka

Bernita said...

My reaction is much like the immigrant with an uncertain command of English, who, - when cut off in traffic - stuck his head out the window and screamed "Foul name! Foul Name!"

Kate Douglas said...

Oh my...my first thought was, I hope this wasn't someone I sent to Jessica! Honor is so important in this business--or it should be. I remember a discussion about agents and someone said their agent made the difference between earning 100% of nothing or 85% of something. IMHO, Jessica is worth much more, especially when she lets me rant! I can't tell you how many times she's saved me from shooting myself in the foot. An agent is so much better than a therapist...

123 123 said...

Great story you got here. It would be great to read something more about that theme.
BTW look at the design I've made myself Overnight escorts