Do I need a literary agent? A contract lawyer? NOW? How do I find one?

August 22, 2016 5:07 AM

I sent my novel manuscript to a reputable small press and, to my delight, got an offer! But then I received the proposed contract, and it has a number of provisions that are making me unwilling to sign it as is. What should I do? How do I do it?

It seems like I have four options right now:

1) Find an agent. I've read that approaching agents with an offer in hand makes you much more likely to find one quickly. But how do I find one? How can I know it's a good agent who will look out for my interests?

I've been told you're supposed to find agents who handle authors similar to yourself, but I'm not having much luck yet looking at book acknowledgements or googling "literary agent" "[other author's name]". Should I literally just start googling "literary agent" "[my niche genre]" and sending out queries?

And wouldn't an agent want to read the book before they agree to take me on, and won't that take a while?

2) Hire a contract lawyer with experience in publishing contracts. There are apparently ones who will do this for a flat fee. Is it worth the money if the flat fee would eat up most of the advance? Will that flat fee include negotiating on my behalf? How do I know the lawyer is a good one?

3) Join an organization like the Author's Guild. They offer contract review as part of their services, which sounds like it means they will look over your contract and tell you what to ask for in terms of changes. This sounds like it could be useful, but would still leave me in the position of negotiating on my own behalf, and I have no experience doing that and feel like I would be negotiating from a position of relative powerlessness.

4) Simply try to negotiate myself. After a lot of internet research, I think I'm actually reasonably aware of what the pitfalls in the contract are, but as I said I have no experience as a negotiator and am feeling powerless here. However, a friend of mine who is a published author who has had bad experience with agents has recommended this route, saying if I present my reasonable concerns and they respond unfavorably, I have an answer in terms of whether I want to work with them.

I'm not sure which of these options is the best one, or the best way to go about pursuing whatever is the best one. The whole experience is making me extremely anxious and upset. I am feeling a perhaps illusory time pressure to find a solution immediately lest the offer somehow go away, rendering all this moot.

And what do I say to the publishers if they contact me while I'm trying to figure all this out or seeking representation and ask what's up?

posted by kyrademon to Writing & Language (10 answers total)

An agent and the guild are both good associations to have but at the point of negotiating an actual contract they will both direct you to a lawyer.
posted by sammyo at 5:57 AM on August 22, 2016

First things first -- it should be fine to contact the publisher and tell them that you are considering finding an agent and you would like a few weeks to get back to them. Don't keep them in the dark and don't rush your response -- they are just people and they are people who want your manuscript. You're on the same team here. If they need a response faster for some reason (their pub schedule or whatever), they'll let you know and you can decide if it's reasonable.

I work in kids' books, so maybe it's different, but it's not my experience that an agent will point you to a lawyer -- they will either have the experience to negotiate the contract themselves or they will have an in-house contracts person that they will consult with.

I would recommend an agent, since you don't want to negotiate the contract yourself. Yes, google "literary agent" and your genre, and then start googling all of the agents you find. Check them out on the "Preditors and Editors" website and make sure they're reputable. Query them, including the fact that you have an offer in hand in the subject of your email or in the first line of your response. If any of them seem interested, google "questions to ask literary agents" and set up a phone conversation where you can ask them your questions and make sure you're comfortable working with them.

You can do it!! Good luck, and congratulations on your offer!
posted by cider at 6:11 AM on August 22, 2016 [3 favorites]

My recommendation for finding an agent is to get a copy of Literary Marketplace (if you're lucky you'll be able to find one at a local library; if you can't, Writer's Market or Novel and Short Story Writer's Market are also fine), and check out the web sites of any promising-seeming agent for more up-to-date information. Look for an agent who has recent sales in your genre to larger publishers. (Also look up the #mswl - manuscript wish list - hashtag on Twitter, but watch out because there are certainly very new, not-yet-established agents who use that tag.) Yes, look up their info on Preditors and Editors -- and check if they have an AAR membership, which has certain ethical guidelines that go with it.

If the agent takes email queries (and most do), I don't think it would be out of line to send them an email saying "Hello, I have an offer from a publisher, this is what the book's about, is this a project you might be interested in and is this something you'd be able to take on relatively quickly?" - you might even want to put something like "Query - Book Title - Offer from publisher" in the subject line.

I don't know anything about trying to negotiate a contract without an agent, but I think it's smart to start looking for an agent now whether or not you can do it fast enough for them to negotiate this contract.
posted by Jeanne at 7:13 AM on August 22, 2016 [3 favorites]

Go to twitter and immediately follow @SusanSpann, an attorney who works in publishing. Read back months' worth of her #publaw tweets. Bottom line: don't sign anything without consulting a lawyer experienced in publishing.

(I'm a book editor.)
posted by BlahLaLa at 7:39 AM on August 22, 2016 [3 favorites]

I used to work for a literary agency and we would occasionally get queries like this (people who had received an offer or who had an editor who was interested). I would always move those requests to the top of the pile to look at. Lead with this information in your query letter and it will help. Anyone who doesn't respond to you in a timely manner probably isn't the right fit for you. Agencies have very fast turnover with items they are interested in. Everyone in publishing is used to reading manuscripts on tight deadlines!

Another tactic would be to ask the editor if they have trusted agents they work with. The agent I worked for had many relationships with editors at many different houses, so that wouldn't be an unusual request I think. Editors often prefer to work with represented authors because agents are fluent in the negotiating language.

An agent will offer a more personal relationship in your growth as a writer, so I recommend that route over a lawyer. They can help with things covering the gamut of foreign subsidiary rights to cover art preferences. Good luck and congrats!
posted by LKWorking at 8:45 AM on August 22, 2016 [1 favorite]

Get an agent. An offer in hand should drastically improve your odds of getting a good one. There are a lot of practical issues to deal with beyond the contract itself (e.g., marketing), and you need someone with experience to guide you through. A good agent can also tell you whether the contractual provisions you find objectionable are overreach on the part of the press or are actually fairly standard provisions that you'll need a lot of leverage to get changed.

If your novel is YA and/or SF/F, memail me and I can give you the contact information of a small but reputable agency.
posted by praemunire at 8:53 AM on August 22, 2016 [2 favorites]

I work in this area of publishing.

If you get an agent now, they will take 15% of everything you earn and they haven't even done the hard part (landing you with a publisher.) Get an agent for your next book, but I don't think you need one for this book as you already have a deal.

Lawyers are expensive and many of them tend to waste everyone's time for billable hours and because they aren't familiar with publishing norms, barring a very few specific attorneys who specialize in book contracts and book contracts only. Be wary of any lawyer who can't name VERY RECENT book contracts they've negotiated, with more than one trade publisher.

There are contracts consultants who are cheaper than lawyers and whose experience in book publishing contracts will exceed the experience of an attorney who works on contracts generally-- they know they industry, they know the publishers, they know the contract forms, they know what's reasonable to ask and what no publisher will agree to. That's who I would use. The Author's Guild can recommend some. I can't (conflict of interest) but Memail me if you have a name and I can thumbs-up or thumbs-down it.

If you are CERTAIN you understand the terms of the deal (what rights you have, your obligations, your restrictions, what the publisher can do with your work, how you earn money, your legal liability) and you only have a few requests, it's okay to ask the publisher for accommodation directly. Reputable publishers are willing to entertain requests and have a library of contract language they are willing to give upon request. I have to say that although I can't disagree with advice to know what you are signing, book contracts are standard forms and unlike say a record deal, they're not sneaky in terms of making you agree to nonstandard things-- just make sure you understand what the standard things are.
posted by kapers at 8:54 AM on August 22, 2016 [1 favorite]

An agency has its own position to protect, which is not the same as yours. You can't count on them to negotiate a contract in your favor. There is probably an author in your genre/community who can recommend a lawyer who has recent experience negotiating book contracts and will do so for a reasonable flat fee, which is better than handing an agency 15% of this book forever for doing nothing. Learning about book contracts and knowing what you don't like in this one before consulting with a lawyer will make that consultation go more smoothly.

Do not sign a book contract that a lawyer hasn't reviewed. I bet there are things in that contract that you haven't even noticed that are not in your best interest. Good luck and congrats!
posted by Scram at 9:24 AM on August 22, 2016 [1 favorite]

Counterpoint: It's not entirely correct that an agent will do nothing if they didn't sell the book itself. They could, for example, negotiate foreign sales, help gain better ebook terms for the future, give you clout that you could use to get a better cover, force the publisher to do more in terms of marketing. Agenting is only partially about getting the deal.

(Source: I published a book with a big five [four? what are we on now?] publisher a few years ago, am not currently agented but am sure glad I was.)
posted by mynameisluka at 11:47 AM on August 22, 2016 [2 favorites]

If you get an agent now, they will take 15% of everything you earn and they haven't even done the hard part (landing you with a publisher.) Get an agent for your next book, but I don't think you need one for this book as you already have a deal.

A good agent will more than recoup that 15%.
posted by pharm at 3:07 PM on August 22, 2016 [4 favorites]