I’ve recently gotten a number of reports about a literary agent with a major agency who is offering representation with a “handshake” deal: representation based on a verbal commitment, rather than a binding author-agent agreement or contract.
There are a number of reasons why authors should be wary of such offers.
1. A handshake is not today’s professional standard.
Decades ago, so-called handshake deals were common in the agenting business. You and your agent agreed that the agent would represent your work to publishers; once your work sold, the agent’s right to receive commissions and to act on your behalf was formalized in the agency clause of your book contract. Before publisher consolidation created the mega-houses, before the digital revolution and the array of new rights and markets it has spawned, before authors’ backlists became valuable, most authors, agents, and publishers deemed this to be enough.
But the present-day publishing landscape is far, far more diverse and complicated than it was then. There are more rights, more avenues to sell and re-sell them, and–at least potentially–much more money. In this increasingly complex environment, a simple, informal handshake and an agency clause are no longer regarded as sufficient. While there may still be some long-time agents who work on a handshake basis, author-agent contracts have become the professional norm.
2. A handshake doesn’t protect you.
Oral contracts do carry weight–if they can be proven. For authors, though, the concern isn’t so much proving the relationship exists as it is setting out the terms of it.
As noted above, publishing is far more complicated than it used to be. As a result, so is agenting. Myriad issues need to be addressed when agreeing to representation–from commissions and payments, to expense reimbursement, to termination provisions, to what happens after termination or if the agent goes out of business.
It is very much in your interest–and also in the agent’s–to clearly and precisely lay all of this out at the outset of the relationship. Otherwise, you not only lack a clear understanding of what the agent can and will do for you, you have severely diminished recourse to demand accountability or to take action if the relationship goes bad.
3. A handshake may be a warning sign.
And not just of a lack of professional knowledge or practice. Putting it bluntly: a handshake deal makes it easier for an agent to get rid of you.
Maybe the agent doesn’t want to bother with clients whose work doesn’t sell in the first submission round. Maybe the agent isn’t all that enthusiastic about you and is hedging their bets in case there are no offers (and if there are offers, is this really the agent you want representing you?). Maybe the agent has one publisher in mind and is up for a quickie sub but not a longer-term commitment. Maybe the agent only offers contracts after a manuscript finds a home, so they can disavow the authors they aren’t able to sell and look like they’re batting a thousand. (Be especially concerned if the agent works at an agency where contracts are the norm–as is the case with the agent I mentioned in the first paragraph of this post.)
Over the years, I’ve gotten complaints from authors who’ve experienced all these things as part of a handshake deal. As these authors know, it’s incredibly hard to walk away from an offer, even if the offer isn’t a good one. But if the offer is a handshake deal, you just might want to make that very tough decision.
First, thank you Victoria. I value your good opinion of me!
Ten years ago some very reputable agents did not offer written author/agency agreements. I'm not sure if they've changed now. My intent then was to make sure that a writer did not write off an agency solely because they didn't have a written agency agreement.
These days, with the layers of complexity of deals, a written agreement is essential. In other words, do as Victoria advises.
Anonymous 1/06,
I seriously respect Janet, who is an accomplished agent and a very smart person. But even ten years ago, I think I would have disputed her assessment of handshake agreements–for two reasons. First, even ten years ago the digital revolution-driven changes that have so greatly expanded and complicated markets and rights were well in train. Second, even then contracts were the prevailing norm, and the lack of one (in addition to the risks I enumerate in my post) suggested an agent operating according to older professional practice and thus, possibly, not well in touch with current markets.
I don't think agents are necessarily less trustworthy/more greedy/whatever than they've ever been; there've always been disloyal or unscrupulous or mercenary agents (though actual agent scams are much, much rarer than they used to be). However, even though an agent's core duty–to represent clients' rights to buyers–hasn't really changed, agents' jobs are harder now, and more complex, and more global, and more agents engage in adjunct activities such as self-publishing assistance or editorial consultation. This, along with the sweeping changes in the publishing industry, means that there's vastly more now for authors and agents to consider and keep track of in the relationship, making it more important than ever for both parties to codify in a written agreement exactly what the relationship entails.
In an old post on her blog, Janet Reid (a very respectable agent) has said handshake deals aren't so bad, and don't let them deter you from going with an agent. That post is ten years old.
How has the "array of new rights and markets" changed this?
I get that there's more to negotiate but are you saying that agents are less trustworthy or greedier now that there are more markets and are apt to screw an author over?
How have the burgeoning markets and digital rights changed the author/agent relationship?
The simplified version … Don't do it! 🙂
For an idea of the kinds of things that should be in an author-agent contract, check out SFWA Model Author-Agent Agreement at http://www.sfwa.org/member-links/committees/contracts-committee/model-agent-author-agreement/