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contract clause restricting other submissions - urgent


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#1 zenpicker

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Posted 17 September 2014 - 08:55 AM

I'm about to sign with an agent and we've been discussing a timing issue I could use some guidance on.  Here's the scoop:

 

- I'm signing with her to represent a debut novel

 

- I have two short story collections I've been entering in various contests that result in publication for the winning entry, typically by a university or indie press like Penn or Sarabande.

 

- The collections have done pretty well in prior submissions - finalist and semifinalist in a couple desirable competitions - and all other things being equal I'd keep pursuing that route to publication, especially since commercial publishers almost never publish a collection as a debut book.

 

- The collections are currently out in four competitions, the last of which will announce about Feb 1.

 

Now the dilemma.  The agent's proposed clause would have me halt any further submissions for the duration of her contract (pretty much a year, depending on how various exit conditions play out), while allowing the currently in-flight submissions to come to conclusion.  Her rationale is that if she indeed finds a deal for my novel, the publisher's contract would likely require that book to be my next book in print.  Because a university or indie press would likely bring a book to print faster than a commercial press, it's entirely possible that a winning story collection would get printed first and would therefore violate that provision in the novel's contract.

 

I'm more than willing to specify that I'd withdraw story collections from competitions if she made a deal for the novel that includes an option on the stories - obviously - but the timing could well work in the opposite direction.

 

So, my questions:

 

- Is a first-in-print clause really standard in a publication contract?

 

- Is there a strategy that might try to negotiate that down to first-NOVEL-in-print, or would a publisher walk away?

 

- Is this kind of restriction typical in an agent contract?

 

- Given that a prizewinning story collection would enhance both her pitch for the novel and potentially the publisher's advertising for the novel, how would that be a bad thing?

 

I certainly don't want to lock up my two story collections for a year or more just because she's pitching the novel, but if she's right about that publication condition I do see her point.

 

Any thoughts or guidance?  The hope is to sign the contract in the next day or two and this is the last real gotcha I'm struggling with.  Any help would be so appreciated!

 


 

Edward Hamlin

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#2 AQCrew

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Posted 17 September 2014 - 09:07 AM

 

Now the dilemma.  The agent's proposed clause would have me halt any further submissions for the duration of her contract (pretty much a year, depending on how various exit conditions play out), while allowing the currently in-flight submissions to come to conclusion.  Her rationale is that if she indeed finds a deal for my novel, the publisher's contract would likely require that book to be my next book in print.  Because a university or indie press would likely bring a book to print faster than a commercial press, it's entirely possible that a winning story collection would get printed first and would therefore violate that provision in the novel's contract.

 

 

So... we would assume that the intent of this clause would be to ensure that you're not submitting to other editors behind the agent's back -- any editors -- not just editors at "major publications" for example.

 

The easy way to remedy all of your issues is to only have the contract represent one titles -- your novel.  Not all your titles.

 

There are a lot of agents who don't use writer-agent contracts because if they sell your work to a major publisher,the publishing contract with spell out the terms of the agent's commission and royalty payment structure.

 

there are a lot of agents who have contracts who expect to represent ALL of a clients work and even have open-ended terms which almost smack of "in perpetuity".

 

And then there are agents who only care about representing the work that you submitted to them and they think they can sell -- they actually don't want to be on the hook for anything else, nor do they mind if you continue submitting other work to the venues you are describing.  It really depends on the agent.  It really does.



#3 AQCrew

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Posted 17 September 2014 - 09:13 AM

So, my questions:

 

- Is there a strategy that might try to negotiate that down to first-NOVEL-in-print, or would a publisher walk away?

 

- Is this kind of restriction typical in an agent contract?

 

- Given that a prizewinning story collection would enhance both her pitch for the novel and potentially the publisher's advertising for the novel, how would that be a bad thing?

 

 

We're not sure that's actually true. about the prizewinning story collection enhancing her pitch for the novel and potentially advertising for the novel.

 

Publishers make their money on selling novels and they are more than willing to take a chance on an unknown talent with no sales history than a talent that has mediocre sales history -- even in the literary fiction arena.  In other words, we've heard the exact opposite -- editors bringing a novel into editorial committees, preparing to fight for an unknown writing's work based on the merit of the work.  The moment they have to go up against Sales & Marketing within the editorial committee who will inevitably bring out prior lackluster sales history of the relatively unknown, but previous published author, it's not a plus for the editor who is attempting to champion the work and get everyone to sign off on making an offer.

 

THAT is the whole reason why unknown writers get major publishing deals everyday and previously published authors never have it made.  



#4 zenpicker

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Posted 17 September 2014 - 09:16 AM

Thanks, AQCrew.  I did limit the contract to just the novel, but she's worried about the impact of an independent sale of one of the story collections on her ability to close a deal for the novel.  The contract already protects her from a sinister scenario in which I would submit the novel to someone else behind her back - which I surely wouldn't.

 

So the question, really, is whether she and I should be worried about this linkage thing.  I could just say no, but if she's indeed correct it seems a reasonable concern.  I just don't know if she is.


We're not sure that's actually true. about the prizewinning story collection enhancing her pitch for the novel and potentially advertising for the novel.

 

Publishers make their money on selling novels and they are more than willing to take a chance on an unknown talent with no sales history than a talent that has mediocre sales history -- even in the literary fiction arena.  in other words, we've heard the exact opposite -- editors sitting in editorial committees bring projects to the table want to fight for an unknown based on the merit of the work.  The second they have to go up against sales & marketing who brings out prior lackluster sales history of a relatively unknown, but previous published authors, it's not a plus for the editor to champion the work and get everyone to sign off on making an offer.

Excellent point!


 

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#5 AQCrew

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Posted 17 September 2014 - 09:25 AM

 

- Is there a strategy that might try to negotiate that down to first-NOVEL-in-print, or would a publisher walk away?

 

- Is this kind of restriction typical in an agent contract?

 

 

Publishing contracts are so long and so convoluted and so written in the favor of the publisher that you are seriously toast on every point unless you have a killer agent who knows every clause backwards and forwards and negotiates the hell out of it in your best interest (which is their best interest, too).  

 

For extremely experienced agents, they literally have their own "base negotiated" contract per publisher -- in other words, each publishers has their own boilerplate contract and a savvy agent already has spent time negotiating down all the clauses to make the terms more favorable to their clients because that's their job.  They do this a few times with the same publisher and they end up with their own boilerplate contract for that publisher.  They don't reinvent the wheel with every deal with every publisher because they've likely already made lots of deals with those same editors and that same publisher -- and basically everyone is on the same page minus the money and total number of books contracted.

 

So the bottom-line is... yes -- everything can and should be negotiated with a publisher, but really, you have to have a GREAT agent doing this for you --and we will tell you, friend, THAT is why having the right agent versus the wrong agent is so important in this industry.  And why everyone says having NO agent is better than having a bad one.



#6 zenpicker

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Posted 17 September 2014 - 09:41 AM

That's good (though sobering) advice.  The agent I'm looking at is pretty inexperienced, another concern.  Lots to consider here.


 

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#7 AQCrew

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Posted 17 September 2014 - 09:48 AM

Is she or he an inexperienced agent at a larger established agency (in which case, these agency often have their own dedicated "contracts person" to help manage all the contract issues and boilerplates and weird clauses that publishers are trying to insert all the time) or is she at a smaller boutique agency with possibly an experienced agent at the helm, or is she just inexperienced and new...?



#8 zenpicker

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Posted 17 September 2014 - 10:05 AM

She got her start doing foreign sales in a midsized agency and then struck out on her own.  She's also worked as an editor, but not for a major house.  Not much sales record to date, but a sterling reputation as a great editor, which seems right given the comments she's given me so far on the manuscript (she has more waiting - I haven't felt it fair to ask for them before signing).  I've had four or five experienced agents (including one I'd call a super-agent) request and pass on fulls, so I think the manuscript is mostly solid but could probably be tightened a bit.  I'm convinced she can help with that, and since no one else is offering rep it seemed worth a shot while I work on the next big thing.  Obviously not the ideal situation, I'm well aware.


 

Edward Hamlin

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#9 sharpegirl

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Posted 17 September 2014 - 11:02 AM

I'm about to sign with an agent and we've been discussing a timing issue I could use some guidance on.  Here's the scoop:

 

- I'm signing with her to represent a debut novel

 

- I have two short story collections I've been entering in various contests that result in publication for the winning entry, typically by a university or indie press like Penn or Sarabande.

 

- The collections have done pretty well in prior submissions - finalist and semifinalist in a couple desirable competitions - and all other things being equal I'd keep pursuing that route to publication, especially since commercial publishers almost never publish a collection as a debut book.

 

- The collections are currently out in four competitions, the last of which will announce about Feb 1.

 

Now the dilemma.  The agent's proposed clause would have me halt any further submissions for the duration of her contract (pretty much a year, depending on how various exit conditions play out), while allowing the currently in-flight submissions to come to conclusion.  Her rationale is that if she indeed finds a deal for my novel, the publisher's contract would likely require that book to be my next book in print.  Because a university or indie press would likely bring a book to print faster than a commercial press, it's entirely possible that a winning story collection would get printed first and would therefore violate that provision in the novel's contract.

 

I'm more than willing to specify that I'd withdraw story collections from competitions if she made a deal for the novel that includes an option on the stories - obviously - but the timing could well work in the opposite direction.

 

So, my questions:

 

- Is a first-in-print clause really standard in a publication contract? Depends on the contract and publisher. 

 

- Is there a strategy that might try to negotiate that down to first-NOVEL-in-print, or would a publisher walk away? Everything is negotiable, but this really depends on the publisher and the agent's ability to negotiate. 

 

- Is this kind of restriction typical in an agent contract? Each contract is different. I would make sure you read your agency agreement carefully and make sure there's a clearly outlined plan for what happens if you and the agent decide to part ways. 

 

- Given that a prizewinning story collection would enhance both her pitch for the novel and potentially the publisher's advertising for the novel, how would that be a bad thing? One thing to consider is that if a short story collection is published before a novel, it could take you out of qualification for certain awards that are for debut writers. Some of them have odd rules about what constitutes an author's first work/debut/first novel. I had my old editor call me from BEA to ask if I'd ever published anything before my novel, because a short story I wrote for an anthology when I was 16 dinged on some award submission's radar. 

 

Also, you might be in violation of a no-compete clause if the short story collection is published before the novel, depending on how strict that clause is in a potential contract. There's also the matter of author-branding and career vision. Some agents are much more strategic than others. I write in several genres, but my agent and I mutually agreed to focus on one to establish my brand before delving into other genres. It's a good idea to have an agent who fits you and shares your mutual vision of your career. 

 

 

I certainly don't want to lock up my two story collections for a year or more just because she's pitching the novel, but if she's right about that publication condition I do see her point. ‚ÄčIf you're signing with this agent, you're trusting her business savvy. Personally, if my agent wanted to focus on a novel (which is way more likely to sell than a short story collection), I would trust her. Publishing is such a slow business, it's good to get yourself out of the "I must publish everything as soon as it's ready" mentality, because it rarely works that way. But I don't know your history with this agent. She may think that the debut novel is so fabulous that it could translate into a bigger sale and audience for the short story collections in the future, if the novel takes off, for instance. She may want to focus on the novel because short story collections are so hard to publish and she wants to brand you as a novelist instead of a short story writer. You'll have to ask her :) 

 

Any thoughts or guidance?  The hope is to sign the contract in the next day or two and this is the last real gotcha I'm struggling with.  Any help would be so appreciated!

 

Good luck! And congrats! :D 



#10 AQCrew

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Posted 17 September 2014 - 11:22 AM

 I'm convinced she can help with that, and since no one else is offering rep it seemed worth a shot while I work on the next big thing.  Obviously not the ideal situation, I'm well aware.

 

You need to think long and hard about want you want and what you'd ultimately be happy with.... The literary fiction scene is an extremely tight market that is more about connections than arguably any other genre.

 

We assume that this agent has plans to submit your novel to editors at imprints at some of the large and mid-sized publishing houses -- but that is an assumption that you should confirm.  There are many prestigious independent houses like Algonquin that may not be able to offer large advances, but can still publish you extremely well.  BUT you still need a great agent with the right connections to pitch your work -- even to them.  Same with the smaller presses like Unbridled Books or Quirk Books.

 

You need to be clear with yourself on your expectations and your agent's ability to fulfill those expectations.  Confirm which publishing houses/imprint (you don't need editor names, just publishers) she plans to submit to in the first round and when...

 

Then, decide if this is acceptable to you.

 

Many writers of literary fiction dream of the six-figure deal with a major, well-known imprint within the industry.  But then, at the same time, with literary fiction -- it's often not about the money -- it's about getting published well and there are many smaller indie presses and university presses that attempt to publish books that mainstream NYC houses simply ignore.  And to get these deals, you can either network directly with the editors or you can rely on an agent who may or may not be able to get your submission read faster than you can.  It's a tough call.  And a lot of times, within the literary fiction scene, it does depend on who you know.



#11 sharpegirl

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Posted 17 September 2014 - 11:27 AM

You also might want to ask the agent to give you some of her client's emails, so you can ask them questions and get an idea of her agenting style :) I found that really helpful in deciding. 



#12 zenpicker

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Posted 17 September 2014 - 03:21 PM

Thanks for the good advice.  I may be suffering from query exhaustion...........


 

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