Sunday, April 18, 2010

“My agent is unwilling to sell world rights to my book. What should I do?”

"I think my book's topic resonates with people from other cultures. I know it does--several readers from other countries have contacted me. I used that fact to buttress my request in asking my agent to please try to sell foreign rights. (They never came up initially.) My agent doesn't seem to think it would sell well in other countries and won't try. My publisher says it's not their job. I'm disappointed and aggravated. Your thoughts, please?"

--question asked by Barbara DeMarco-Barrett on behalf of The American Society of Journalists and Authors. Barbara is host of “Writers on Writing,” a weekly radio show airing on KUCI-FM (88.9) in California

Whenever an agent negotiates a book deal with a publisher, a few major issues are negotiated immediately (usually, verbally), such as the advance, royalties, delivery schedule and payout, and major subsidiary rights, like translation and UK rights. (Dozens of smaller issues will also be negotiated later, during the contractual process.) Thus before the contract is even issued and the deal signed, your agent will know whether he or the publisher will be controlling the world rights to your book.

Publishers will often want to control world rights, because it is to their advantage to do so. If a publisher sells world rights, they will make a commission off of each sale and more importantly, any foreign income will be lumped into your royalty account and never paid to you unless you first earn back your royalties—thus giving a publisher security should your book not sell in the U.S. But agents will also want to control world rights on your behalf. It is a negotiation. In some cases, publishers will end up controlling them; in others, agents. For example, a publisher might offer a major six or seven figure advance, but insist that such a high advance is predicated on their controlling world rights. In other cases, the advance offer may be low, and the agent may insist that the publisher can only acquire the book for such a low advance if the agent can control world rights. In some cases, three publishers might offer matching or similar advances, but one of them may be willing to give up world rights, and that may be what makes the difference. In some cases, the world rights may be very valuable (for example, with a book about European history), while in other cases, world rights may be unlikely to sell at all (for example, a book about American history), and this will affect the publisher’s or agent’s fervor in fighting for them.

If an agent ends up controlling world rights, then it is the agent’s responsibility to shop them around the world. Most U.S. literary agents engage co-agents based in the major bookbuying countries of the world; once they sell a book for which they have retained world rights, they will contact all of their agents, let them know of the sale, and ask them if they would like to represent the book in their territory. If particular co-agents in particular countries don’t feel that the book would be successful in their country, then there is not much the primary agent can do; but the primary agent must at least query these co-agents and try.

In your case, you should ask your agent if he has done this. If he says no, and if he refuses to even query his co-agents, then you should ask him to write you a letter which formally reverts the foreign rights back to you and which absolves his agency of any commission for foreign sales. (Your publisher is correct in saying that it is not their job if your agent controls the rights.)

Once you have the rights back, there is not much you can do on your own; international co-agents will rarely want to do deal directly with authors on individual books, as they prefer to deal with established literary agents with whom they have dozens of deals. But if you ever switch literary agents down the road, then at least you will have the legal right to allow a new agent to shop the foreign rights to this book. Agents will rarely want to represent someone merely for the sake of representing foreign rights for a particular book, but if you write a second book, and a new agent wants to represent that in the U.S., then he might also want to represent the foreign rights to your previous book.

Perhaps most importantly, all of this points to the fact that your current agent is not doing his job if he will not at least ask his co-agents to represent your book overseas. If that is the case, consider switching agents for your next book. Keep in mind, though, that foreign rights are not always easy to sell (it varies greatly, depending on the genre), and it may be that your agent ran it by his co-agents and they rejected it. Don’t make assumptions until you’ve gathered all the facts.