Say No to Interminable Agency Clauses
Copyright © 2004 Tonya M. Evans, Esquire. This article may not be copied or distributed without the consent of the author.
DISCLAIMER: The author is not engaged in rendering legal or other professional services as a result of the information contained in this article, and this article is not meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought.
Recently the Author's Guild warned authors to avoid the "interminable agency clause" in an article titled "Avoid Granting an Interminable Right to Represent Your Work" in a member email dated May 11th. This clause, which often appears in the agency paragraph in a publishing agreement (but not in the author-agent agreement in most cases), gives agents the exclusive right to receive royalties from works covered by the agreement for the entire term of copyright. At present, the term of copyright lasts for the life of the author plus 70 years.
The Author's Guild lists a number of valid reasons why this clause does not benefit either party. One of the most obvious and important from an author's perspective is that an agent's rights should run co-extensively and co-terminously with the publishing agreement and should terminate when a work goes out-of-print, when presumably the benefit of the agent's work also ends. Of course most authors do not begrudge an agent's right to a commission when it is earned through the agent's substantial efforts to place a work with a publishing house. But giving any further compensation to the agent without a new rights sale, license, or other exploitation of the author's work, is at best unfair and, in my opinion, bordering on unconscionable.
From an agent's perspective, there are so many ways an author can successfully challenge such a clause that the agent could easily spend more time embroiled in conflicts (and even litigation) with clients then he or she does making deals and finding new clients. Plus tracking and enforcing interminable rights for each client over many years seems an administrative burden and, quite frankly, an impossibility when it is unlikely the agency will even be in existence for the entire term of copyright (again, the author's life + 70 years!). Thus the pros seem to far outweigh the cons when you think about the small amount of compensation (if any) that may be earned and paid to an agent after a work goes out of print.
So I recommend that authors and agents make sure that the agency paragraph in publishing agreements no longer include the "interminable agency clause," also known as a right coupled with an interest.
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Tonya M. Evans is a Philadelphia-based literary and intellectual property lawyer and the co-author of Literary Law Guide for Authors: Copyright, Trademark, and Contracts in Plain Language