Monday, September 27, 2010

Do some agents give up if a manuscript doesn't sell in the first round of submissions?

"Do most agents stay with a book until it finds a home, no matter how low the advances might be? I honestly don't care about the advance. I just want to get published. But I've heard some agents bow out if the book doesn't sell to someone in the first round of submissions. Is this true?

--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

This is another good question, and one which demands a thorough response.

To begin with, one cannot offer a blanket answer on behalf of every agent in the industry: some agents will indeed give up after a few submissions, while others will work tirelessly for months or even years. It is very much agent specific, and manuscript specific.

It is also genre specific: certain genres allow for a higher number of submissions. For example, if your work is narrative non-fiction, there may be 30 or 40 (or more) potential editor submissions, while if your work is commercial fiction, that number may shrink to the vicinity of 20. There tend to be more imprints setup to acquire non-fiction than fiction (particularly commercial fiction). But if your work is prescriptive non-fiction (such as popular psychology), there may be fewer potential imprints than for narrative non-fiction, and thus fewer potential submissions. If your work will be a trade paperback original, that, too, can limit the number of potential submissions, as fewer imprints publish trade paperback originals as do hardcovers and paperbacks. If your work is destined to be a mass market original, that will limit potential submissions even further. If your work is academic, that, too, will limit the playing field.

Thus a well-intentioned and hard-working agent may simply be unable to submit beyond a certain number of editors and may exhaust a submission quickly, depending on the genre. There are only a finite number of publishers, and if they all reject your work, then the agent cannot create options where there are none. So lack of success is not always the agent’s fault: if the agent has exhausted all submissions methodically, he has still done his job well (assuming, of course, he has chosen the most appropriate editors within each publisher).

That said, the converse may be true: an agent might give up after only submitting your work to 5 or 10 editors, when he could have submitted to 40. Such an agent’s motivation may be financial: it may be that he chooses his “A List,” the 5 or 10 publishers he thinks might pay the biggest advance, and when they all pass, he assumes that the B or C Lists won’t pay as much, and thus gives up. Or it may be that the agent is just easily discouraged, and that when 10 trusted colleagues tell him a book won’t sell, he believes them and sees no point in trying further. Or it could be that the first 10 rejections all tell him of a directly competing project of which he was unaware, and as a result he decides submitting further would be a waste of time. It may be that the agent is not as knowledgeable of the industry as he should be, and only knows 10 publishers, or only has contacts in those houses. Or it may be that the agent becomes unhappy with the author during the first round of submissions (if, for example, the author is pestering him) and uses the first round of rejections as an excuse to end the relationship. Or the agent may simply be lazy.

No matter what the reason or motivation, there is no excuse for an agent to give up and not exhaust a submission, submitting to every last possible player. If an agent commits to a manuscript, then he should see it through, should stay with it whether it’s been rejected by 5 editors or by 45. He should stay with it whether it takes a week or a year, whether it sells for an advance of one million dollars or one thousand.

The majority of legitimate agents will indeed exhaust a submission. Sometimes a termination of a submission is initiated by an author: an agent may work in good faith for months while the author, impatient, may fire the agent. As a rule of thumb, most proposals on submission (if submitted thoroughly by a legitimate agent) will sell within a matter of 4 months. But there are always exceptions. I’ve sold one book in a submission that lasted two hours, and I’ve sold another after a submission that lasted 14 years.

Unfortunately, once you sign with an agent, you cannot control his methodology. What you can control is who you decide to sign with. As I’ve said many times, you must spend months researching potential agents before deciding who to approach and sign with. If you choose a legitimate agent who represents great authors and who has a track record of recent sales to major houses, then you will have little to worry about. If you choose an agent who you know little about, or whose record is not as reliable, then you may have more cause for concern; in that case, make sure (as I’ve discussed before) that you have an out clause in your agency agreement, so that you can fire him if you are unsatisfied.

But even if you fire a bad agent, once he has already submitted your manuscript, it will be tarnished in the eyes of most new agents, who will likely not want to take it on. So while it’s good that you’ll at least be able to get free of the old agent, the damage (for that manuscript) is already done. You will likely have to give your new agent a new work and/or wait a few years until the editors who’ve rejected your first work have left the industry. So, again, choose carefully. Spending more time upfront on research will save you from worrying throughout the process.

Tuesday, September 7, 2010

Is my agent (even if fired) entitled to commission my option book?

Hi Noah,

Great blog. I have a question unrelated to this post - after firing an agent, can she use the options clause in your publishing contract between you and your publisher to claim a commission on future works?

Thank you.


This is a sophisticated question, and one which is rarely addressed.

For those of you who may not know, a standard publishing agreement contains an “option clause,” which gives your publisher the first and exclusive right to acquire the next book you write. The standard publishing agreement also contains an “agency clause” (for authors represented by agents) which assures your agent that he will receive his commission. The issue at hand is not the option clause itself: it would be quite unusual for an option clause to contain any language referencing the agent. The real issue is the agency clause: it is quite common for an agency clause to reference the author’s option book. This language usually states that if the publisher buys the author’s next book (the option book), then the agent will be entitled to commission that, too.

From the agent’s perspective, the agent is the one that introduced the author to the publisher, and thus if the author continues the relationship with that publisher for a subsequent book, the agent should be entitled to commission that, too. This is relatively standard, and in many scenarios, this is justified: an agent can work for years to finally land an author a deal, and in some cases, once the author is all setup, the author will fire the agent in order to not have to pay him a commission on future works. Alternately, the author may fire the agent in order to switch to another agent. In such a scenario, the original agent may feel burned, and feel entitled to commission at least one more book between the author and the publisher. This language exists to enforce that.

But there are a number of reasons an author-agent relationship can fall apart during the months or years it takes to complete a book, and it’s not always due to greed or a lack of loyalty on the author’s part. In some cases, the author may be working in good faith with the agent, while the agent may, along the way, become unresponsive or unsupportive. Thus the author may very well feel entitled to fire the agent, and may feel that the agent should not be entitled to a commission on an option book.

In most cases, this is not an issue, since authors who are setup with a publisher are usually happy, especially if they continue this relationship for subsequent books, and they’ll usually be grateful and want to continue have their agent represent them. And in most cases, agents, for their part, will continue to work hard, and continue to be eager to represent the author.

But if things do fall apart, and if it does become an issue, then legally, if the agency clause contains this language, then the agent does have a legal basis to receive that commission. In order to ensure he receives this commission, an agent may sue the author and/or publisher. It can get very messy. This is why a few publishers, who don’t want to get caught up in spats between authors and agents, will refuse to allow this language in agency clauses. Most publishers do, though, and it remains fairly standard.

Keep in mind that this language is fairly limited: it only entitles your agent to a commission if you sell your next book to the same publisher, and it only entitles them to commission that next option book (not subsequent books). Thus there are ways around it. For example, if your publisher rejects your next book and you sell it to a different publisher, then the agent cannot claim a commission. Or if your publisher rejects your option book, but then you write a different book and sell it to that same publisher, your agent cannot claim a commission on that either, since technically, it’s not your option book (even though you remain with the same publisher).

Finally, keep in mind that you may also have signed a separate agency agreement directly with your agent, and that, too, may contain pertinent language. You need to check both to make sure you are completely free and clear. (Also read my post, “Can I fire my agent mid-submission?”)