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An Author’s Guide to Agency Agreements

June 12, 2025

This article was printed in the Fall 2017/Winter 2018 issue of The Authors Guild Bulletin and revised in June 2025.

Agreements between authors and agents can be tricky things. Sometimes there’s a written contract setting out the terms of the relationship, sometimes there isn’t. And even when there is a contract, the language it uses can seem alien to non-lawyers. But, since this is one of the most crucial professional relationships in an author’s life, it’s vital that you understand it clearly. To help you navigate the mysteries of the agency agreement, we’ve compiled a guide of key points for you to keep in mind.

I. Literary Agent Representation: The Relationship

Before addressing the major issues to be considered in an author-agent contract, let’s explore what authors need to know about the relationship between author and agent.

The Agent Owes a “Fiduciary Duty” to the Author

A literary agent or agency has a “fiduciary” relationship with its author clients; this means that your agent has a legal obligation to you (and to each of their other clients) to always put your interests above its own and avoid any conflict of interest with its other clients. It also means that you are placing a greater level of trust in your agent than you do in other commercial dealings, such as your relationship with your publisher. Most agents take this role very seriously and will be your principal trusted advisor on matters relating to the literary properties they represent.  If you find that your agent is not acting in your interests, you may want to seek another agent (as well as note down any ways in which the agent has not met its fiduciary obligations to you, in case you want to pursue legal remedies in the future).

Agency Agreement vs. Agency Clause — Pros and Cons

A number of literary agencies do not provide their clients with written agency agreements, but instead rely solely upon the agency clauses that will be inserted into the publishing and motion picture agreements. It’s best, though, to have a written agency agreement in place to prevent any misunderstandings as to the terms of the arrangement, and to clearly define each party’s rights and obligations throughout the entire relationship, including the point of termination.

Recommendations

If the agency does not provide the author with a written agency agreement, it is best to ask for one to make sure all of the material terms are understood and agreed upon. If the agency does not provide a contract and insists on relying on an agency clause, then before retaining the agency, the author should ask to review and approve the clause used by that agency in the contracts it negotiates. It is best to do this by e-mail so that you have a written record and to acknowledge that you agree to the terms, so that there is a legally binding agreement.

The Agency Clause

An agency clause (such as is often added to publishing and other licensing agreements) may also set out the terms of the relationship between the author and the agent. Such clauses usually:

  1. Provide that all sums payable to the author shall be paid to and in the name of the agency.
  2. Stipulate the percentage commission that the agency is entitled to deduct from amounts payable to the author (these are generally standard and non-negotiable — see below); and
  3. Provide that the agency is entitled to act on the author’s behalf in all matters arising out of the publishing or other applicable agreement.

Many agency clauses (and agreements) state that there is “an agency coupled with an interest”. This phrase should ideally be deleted, since if the agency relationship is truly an “agency coupled with an interest”, the relationship would then be irrevocable. In fact, almost every agency clause is revocable by the author, and courts and legal commentators agree that such language is legally ineffective since merely stating that it is “an agency coupled with an interest” doesn’t actually create the requisite unbreakable relationship unless the agent actually has an interest in the author’s work apart from the mere right to receive commissions (which again, rarely if ever happens).

Recommendations

Authors should carefully review the agency clause, as well as any agent representation agreement(s), to confirm that the scope of the agency clause or agreement does not exceed the rights the author intends to grant to the agent. If an agency clause is to be used instead of a representation agreement, the author should (i) review a sample clause provided by the agency and get a representation in writing (e-mail is fine) that the sample provided is the one that will be used in future agreements, and (ii) confirm agreement to the agency clause in writing (again, e-mail works) to create a binding agreement.

Beware of Reading Fees

The Association of American Literary Agents (the leading trade association for literary agents), includes in its Canon of Ethics a prohibition against members charging fees to potential or existing clients to read and evaluate their writings. If an agent charges “reading fees,” the author should seriously consider finding an agent who does not, since such fees are not customarily charged by leading literary agents.

II. Agency Agreements: Principal Provisions

Now that you have, we hope, a clearer understanding of how the agency relationship works, let’s move on to the contracts themselves. Here are some major points to consider when you’re asked to sign an agreement with a literary agent or agency:

What Works Are Covered

An agent may wish to represent only a client’s new work, all of the client’s work, or just every work the client writes during a stated period of time. (To be clear, the agent’s rights to represent the work are usually granted in perpetuity, or until the relationship is terminated under the terms of the contract or by the mutual agreement of the agent and the author.)

Recommendations

The agreement should ideally only cover  one work (except where multi-book deals are involved) and that work should be defined as specifically as possible — at least by its subject matter and, if possible, by its tentative title. With each new book, they must separately agree to represent the new work. An agent who does a great job representing one book might not be the right agent for the next, or even want to represent your next book, for instance, if it is in a completely different genre (e..g., nonfiction vs. fiction) from the agent’s specialty .

Rights Granted During the Term of the Agreement

An agency agreement gives an agent the right to sell the work to a publisher for a specific number of months, or even years. Normally, the agent is appointed the author’s exclusive worldwide agent to sell, license or otherwise negotiate the transfer of rights in the work covered by the agreement, for the term set out in the agreement; this means that the agent alone is entitled to act on the author’s behalf in negotiating the exploitation of the work(s) covered by the agreement. The agent should also have the right to appoint sub-agents to handle the transfer rights that the primary agent may not be equipped to handle — such as outside the U.S. and Canada or in foreign languages, as well as other non-print publishing rights, such as motion picture, television and theatrical rights.

Recommendations

  1. Termination: As a general matter, an author should have the right to terminate the agency agreement at any time, although some agencies will insist on a limited number of months to shop a work, such as 6-12 months, before they will allow an author to terminate. Even if the agent agrees to such a right to terminate, however, the agency is normally entitled to receive commissions on deals the agency procured prior to the author’s termination of the relationship as well as certain deals that may be pending at the time of termination.  This may even include works that were merely submitted prior to the termination date that have not yet been evaluated by the publisher to whom the work was submitted.  Accordingly, the agency agreement will often stipulate that the agency will also be entitled to receive commissions if, within 90 days (or sometimes up to 180 days) after termination, the author enters into a publishing agreement with a house with which the agency submitted the author’s work or otherwise commenced negotiations on a potential deal.  One thing to keep in mind is that you, the author, may wish to hire a new agent immediately after termination. So, in some cases, an author could end up being liable to pay the original agent and new agent commissions if they are not careful about the contracts they have signed with each party.  At the least, this is something you would want to address in the agreement with the new agency as it is best to avoid paying a double commission.In any event, the agency agreement should give the author the right to demand a list of places where the agency has submitted the author’s manuscript upon termination; this is especially so if an agency insists on receiving commissions for a limited period of time from deals that were negotiated but not concluded during the agency term.
  2. The scope of representation stated above (including the right to appoint sub-agents to transfer rights outside the U.S. and Canada in the English language, in foreign languages and other non-print publishing rights such as motion picture, television and theatrical rights) is usually acceptable in the industry, except in the rare occasion where the author has a pre-existing relationship with a motion picture agent.
  3. The agreement should require that the agency keep the author regularly advised as to all negotiations on the author’s behalf.
  4. The agency should be expressly prohibited from signing any deal, memo, publishing agreement or subsidiary rights agreement on the author’s behalf. The client author is the only party who should sign such agreements granting rights to the author’s work. When an agent signs a deal on behalf of the author, misunderstandings can occur and rights can be granted without the author’s knowledge or approval. It is a recipe for the agency relationship to go sour.
  5. The agency agreement should not allow the agency to represent unplaced rights after termination.  In recent years, many agencies have been seeking what is known as “interminable agency,” which means that if the agency places any rights in a given work, such as print rights, the agency would automatically have the right to place all other rights protected by copyright in the given work for the life of copyright.  Again, this should NEVER be the case.  Normally, when an author terminates an agency agreement, all unplaced rights remain with the author so that he or she can take them to another agent or can choose to exploit them himself or herself.  It is best to limit an agency’s right to post-termination commissions so that the agency is only entitled to receive commissions from contracts executed during the term of the relationship and rights on submission/placed within 6 months of the date of termination IF the agency was in negotiations at the time of termination and they are concluded within 6 months of the termination date. Again, it is best to stipulate that the agency would be required to provide a list of entities with whom they are in active negotiations with at the time of termination.

Agent Commissions

The following rates are considered to be standard in the industry:

  1. Commissions on domestic book publishing and performance rights (motion picture, television and live stage rights) agreements are generally 15 percent of the gross amounts payable to the author.
  2. Commissions on foreign rights agreements where a sub-agent is used are generally 20 percent of the gross amounts payable to the author on foreign rights deals (although some agents charge a higher commission on sales in certain foreign countries where the amounts received are generally very small for the efforts involved). These commissions are generally standard and non-negotiable, although it is best to seek to ensure that if a sub-agent is not used, the agency’s commission will remain 15%.

Payments to The Author by The Agent

Most agency agreements provide that all advances and royalties payable to the author under any publishing or other agreement for exploitation of rights in the author’s applicable work will be paid to and in the name of the agency, which will deduct its commissions (and any expenses covered elsewhere in the agency agreement) and then remit the balance to the author.

Recommendations

  1. The agency should be required to remit monies due to the author within ten days (or within a mutually agreed upon fixed period of time) after receipt by the agent.
  2. The agency should be required to hold all monies received on behalf of the author in the agency’s client trust account rather than in the agency’s general account. (This is the practice of most reputable agents in any event.)
  3. If the agreement (or agency clause) provides that the agency’s commissions are payable “as an agency coupled with an interest,” this phrase should, ideally be deleted (for the reasons set forth above).
  4. The agency should provide the author with copies of all fully executed license agreements and royalty statements it receives for the work.
  5. The agency should agree to give the author a semi-annual or annual accounting of monies it received on the author’s behalf.
  6. The agreement should expressly provide that if the author terminates the agency agreement after the agency has made a sale, then (a) the agency will not negotiate any future amendments or new agreements regarding the work; and (b) the agency’s share of commissions will be paid directly to the agency by the publisher, with the balance paid directly to the author or the author’s designee.
  7. The agency should not be entitled to receive commissions on sales of rights in the work made after termination of the agency agreement by the author — unless the agency was responsible for procuring the offer  or the sale had been substantially negotiated by the agency prior to termination of the agency agreement. Some contracts presume that any deal made within a certain number of months after termination were attributable to the agent and that the agency is thus entitled to a commission, but try to negotiate for a clause that only allows the agent to receive commissions on post-termination deals that are attributable to them.

Expenses

The agreement may expressly allow the agency to deduct from money owed to the author expenses such as those for postage, messengers, bank charges, photocopying a manuscript and sending copies of a manuscript to foreign publishers and /or sub-agents.  If the agency insists on keeping that clause, you should try to insert a cap (in total) on the amount of expenses the agency can incur on your behalf before it would be required to ask for your permission to incur further expenses. Likewise, you might inquire into whether you can undertake tasks that could save you money, such as providing photocopies of your manuscript or proposal.

Warranties, Representations and Indemnities

Occasionally, agency agreements contain warranties, representations and indemnities from the author to the agency similar to those found in publishing agreements.

The author should seek to delete these provisions from the agreement. Although the author will have to assume such obligations in any book publishing agreement to protect the publisher against claims or lawsuits regarding the contents of the author’s literary work, the author’s agent is not exposed to those risks and therefore does not need such protections.

Assignability

The agreement may provide that it is assignable by the agency.Because an agency agreement is a fiduciary one, the agreement should prohibit assignment by the agency of the agency agreement to another agency. Note that most agreements are with the agency and not the agent, so if your agent moves to another agency, the agency usually has the right to keep you with the agency and to assign you to another agent. If that is a real concern for you, it is best to raise the issue when negotiating the agreement.

Some agreements may also include a clause merely allowing the agency to assign its rights to receive commissions. There is usually no reason to object to the agency’s ability to do so.