An “interminable agency clause” (sometimes called an “interminable rights clause” or a “perpetual agency clause”) is language inserted into an author-agency agreement whereby the agency claims the right to remain the agency of record not just for the duration of any contracts it negotiates, but for the life of copyright. In other words, once the agency sells your book, it has the right to represent that book for as long as the book is in copyright (currently your life plus 70 years).
Why is this a problem? Suppose you decide to move to a new agency, as often happens. If your old agency’s agreement included an interminable agency clause, you might not be able to bring with you any of the rights your old agency sold for you, even if the contracts covering those rights had long expired. Those rights, which can sometimes be profitably re-sold (especially if you score a success with a new work) are one of the things that can make you attractive to a new agent. Also, why would you want to leave your rights sitting with an agency with which you no longer see eye to eye?
Or suppose your old agency doesn’t have a problem with you taking your rights elsewhere, but because of an interminable agency clause claims the right to collect commissions on any future sales of work it originally sold for you–even if it has nothing to do with those sales. Why should an agency be paid for a sale it didn’t make? Obviously an agency’s right to commissions should extend over the life of any contract it brokers, but once the contract ends, the benefit of the agency’s work to you also ends, and so should its right to commissions.
Many professional writers’ groups warn against interminable agency clauses, including the Authors Guild, SFWA, RWA, SCBWI, and Novelists Inc.. According to the Authors Guild, “the minimal prospective benefit the clause provides is far outweighed by the inconvenience it causes authors and their estates and by the responsibilities that accompany the clause.” In addition to the concerns identified above, the Authors Guild points out that your agency is unlikely to be around for the life of copyright, that changes in personnel and ownership may have an impact on skill and reputability, and that interminable representation can greatly complicate not just the task of literary executors, but also of the agency, which would need to track and enforce interminable rights.
This isn’t a new issue. The Authors Guild warning was issued in 2004. But the problem isn’t going away. Just today, in fact, an author-agency agreement with interminable agency language came across my desk–the eighth I’ve seen in the past year. Clearly, authors need to be on their guard. Trouble is, the language can be subtle enough that it’s easy to overlook or misunderstand. Several of the authors who sent me contracts were aware of the warnings against interminable agency language, but still failed to spot it.
Below are some examples of the different ways in which agencies frame interminable agency clauses, with the dangerous phrases bolded. All are taken from agency contracts in my possession.
** “The Agency and its right to receive commissions hereunder shall be co-extensive with the life of the copyright of the Work and any renewals thereof.”
** “At time of termination of Agreement, all Work(s) sold by Agent shall remain with Agent and Agent shall remain Agent of Record in perpetuity unless otherwise agreed to by both Parties.”
** “In the event that any Rights are sold, licensed, or otherwise disposed of by [agency], Licensor agrees that [agency] shall be irrevocably designated the agent for those Rights to the Work for perpetuity.”
** “The Agency is entitled to the above-mentioned percentages as specified…for the legal life of the Work on agreements pertaining to the Work.”
** “Author grants to agents/representatives and assigns the sole and exclusive right of selling in book form the above work in the United States of America and its Dependencies and anywhere in the world during the full terms of copyright and any renewals thereof.”
** “It is understood that if rights to the Work have been sold during the term of this Agreement, Agent’s interest in the Work is irrevocable…In recognition thereof, and in such case, Author hereby acknowledges and agrees that, regardless of when made or by whom, any and all contracts or agreements…regarding the Work are covered by the terms of this agreement; [and] agrees to arrange for all such contracts and agreements, regardless of when made or by whom, to name Agent as Author’s agent of record.”
What should you do if you encounter this kind of language? Here’s what the Authors Guild recommends:
The best approach is for agents to simply drop the clause. Agents who are determined to retain a contractual right to represent an out-of-print work could adopt a clause such as the one that follows:
“On termination of this [publishing] Agreement, Agent will continue to have the right to represent the Work and collect a commission for the placement of the Work provided that (1) Agent places the Work within 6 months of the termination of this Agreement and (2) Agent sought a reversion of rights on Author’s behalf within 6 months of the time the Work was out of print as defined in this Agreement.”