Negotiating a Publishing Contract without an Agent: Literary Attorneys and Contract Consultants

Agent Jacqui Lipton explains the comparison between working with an agent in reviewing contracts/negotiating deals and working with a literary attorney or contract consultant.

When authors think about working with literary agents, they usually have a set of goals in mind, including: access to publishers that don’t regularly accept unagented submissions; market guidance; editorial assistance; and, expertise in contract negotiations. It’s the last of these goals that I’m going to talk about in this column. 

Working with an agent in reviewing contracts/negotiating deals and working with a literary attorney or contract consultant

I’m going to focus here on the comparison between working with an agent in reviewing contracts/negotiating deals and working with a literary attorney or contract consultant, a useful alternative for those who have not yet secured representation or who prefer to work unagented.In full disclosure, I have worked as both a literary agent and contract consultant/attorney, but most of my contract work is on the agenting side these days. There are plenty of experts out there who can provide help with publishing contracts outside of literary agencies. Many authors work with both agents and publishing attorneys over the course of their careers because what agents typically do doesn’t cover some of the things literary attorneys do and vice versa: for example, many literary agents are not experts in estate planning for authors.

And here’s a brief note on terminology—not all publishing contract consultants and experts are attorneys. This is not a big deal. You don’t have to be a lawyer be to understand publishing contracts. Many contract consultants have years of experience working inhouse at a publishing company or other media entity.

So if you’re interested in working with an expert who isn’t an agent, look for someone with experience in reviewing and negotiating publishing contracts, whether they are an attorney or not.

It’s also important to state upfront that there’s no “one size fits all” model of agenting, consulting, or lawyering. Many agents, attorneys, and others will have a comparatively broader or narrower scope of expertise, so it’s always important to interview with whoever you are thinking of working with before engaging their services. You should review payment structure (e.g. commissions versus fees, basis of fee calculations etc.) and the scope of work to be done to make sure you understand exactly what the person is and is not offering to do for you: for example, are they going to consult with you on the contract and leave it to you to negotiate or are they going to negotiate on your behalf?

Working with an agent and working with an attorney or consultant

Generally speaking, a key difference between working with an agent and working with an attorney or consultant on publishing contracts is that an agent is more likely to be focused on your trajectory as an author, on the scope and breadth and future of your career. The agent may be able to be more sensitive to contract concerns involving options and non-compete clauses: contractual issues that involve the relationship of your books to each other because the agent is working with you across multiple projects. As a result, the agent may be able to be more strategic about negotiating contract clauses that may impact your other work. Of course, attorneys and consultants will ask you about these issues when reviewing a contract—or at least they should. But an agent automatically have a comprehensive view of your career: what you’ve done in the past and what you’re likely to do in the future. The agent will also likely have a stronger sense of the market for your future planned works that may provide some benefits in reviewing and negotiating a contract.

Engaging an experienced contract consultant or attorney is a good option where you don’t have an agent. An expert in the area can help you avoid pitfalls that maybe more difficult to fix after you sign the contract.

Also, in terms of understanding the market, many agents will have a better sense than an attorney or consultant about the commercial aspects of the contract: the reasonableness of the monetary terms being offered against the rights being licensed. 

An attorney or consultant may be more focused on the legal aspects of the contract than on the commercial issues, depending on the nature of their practice and how well versed they are in market norms with respect to deal terms. Again, this is not a hard and fast rule. Many attorneys (and consultants) maintain practices that focus on negotiating publishing contracts and will be just as well versed in deal terms as agents. It’s always important to ask whoever you may be working with what their experience level is and exactly what they will be focusing their review on when you hand them the shiny new contract you have just received from the publisher.

Many agents, for example, are not all that well versed in the nuts and bolts of contractual legalities, and many—probably most—agencies either have lawyers on staff or external lawyers they consult with about new or unusual contract terms, and/or when dealing with a new publisher for the first time. When an agent seeks an attorney’s advice on your contract, you don’t pay for that separately. All the work the agent does for you should be covered by the commission they take from your deals; they shouldn’t be charging anything extra for consulting a lawyer themselves to simply review or negotiate your publishing contract.

Commissions

Speaking of commission, you obviously pay your agent by way of commissions on deals they broker for you. If they don’t make deals, they don’t get paid. If they make a deal, their commission is their payment. However, attorneys and consultants typically don’t take a percentage of a deal. Generally, they work on a flat fee basis or an hourly rate. If they offer to work on an hourly rate, they should typically give you an idea upfront of how long the work is likely to take so you can get a sense of the total amount you’re likely to pay.

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Note that the amount of hours worked will vary depending on what you ask the attorney or consultant to do for you. A simple contract review for a standard publishing contract shouldn’t take more than an hour or two. But if you ask the attorney or consultant to negotiate the deal too, that will take longer. Attorney and consultant fees vary widely and there are also some avenues available where you can obtain free (pro bono) legal help: for example, through the Volunteer Lawyers for the Arts organizations in most major cities and, if you’re a member of an organization like the Authors Guild, legal advice is available as part of the membership.

The Bottom Line

While literary agents and publishing attorneys/consultants obviously do things outside reviewing contracts and negotiating deals, hopefully this blog post gives you a sense of the key differences in the contract review context. Engaging an experienced contract consultant or attorney is a good option where you don’t have an agent. An expert in the area can help you avoid pitfalls that maybe more difficult to fix after you sign the contract. An ounce of prevention can truly be worth a pound of cure here.

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