A contract clause that grants literary agencies the right to exclusively represent a work for the life of its copyright is attracting new attention in publishing circles, as some authors and organizations worry that it could become an industry standard. The contract provision, known as an "interminable rights clause," means that even if the original publishing agreement has ended, the book has gone out of print or the author's agent leaves the agency, the agency continues to be the agent of record for the work. The practice contrasts with that of some other agencies, which give up their claim on a work once the publishing agreement the agent negotiated ends.
"That was a deal buster for me. There was no way I was going to sign away all of those future rights," said romance and suspense author Tina Wainscott, who recently left her agent, Mel Berger at the William Morris Agency, who had represented her on four books over the course of four years. Organizations including the Authors Guild, the Romance Writers Association and Novelists Inc. are calling for agencies to stop using interminable rights clauses and are warning their members to be aware of what they may be giving up if they sign such clauses.
"Our position is that this clause does not make sense. It is certainly not in the author's best interest to sign it," said Kay Murray, general counsel for the Authors Guild. Authors' advocates said the clause could force authors to pay a commission to an agency they've left and leave their work to languish at an agency that may have little interest in selling rights to it. Also, with copyrights lasting for the life of the author plus 70 years, the clause could complicate matters for the writer's heirs long after his or her death.
Agents are split on the issue. Wayne Tabak, co-chief operating officer of the New York office of William Morris, said there is nothing new or unusual about the provision. "It's very, very, very customary in the business for the agency clauses to work that way," he said. But a number of leading literary agents said they never use interminable rights clauses. "We represent the books and we sell them for the life of the license or as long as the book is in print and then, if an author decides to go to another agency, they can take the unsold rights with them if they choose to," said Robert Gottlieb, chairman of Trident Media.
There is no single industry standard considered acceptable or ethical by agents, said Gail Hochman, president of the Association of Authors Representatives. "The AAR does not have a position on it and probably will not take a position. The reason for that is we do not and cannot legally get involved in contractual agreements between agents and clients," Hochman said. She said conversations about the clause have popped up among members in recent months. "The discussion always ends in about three seconds, as in any group of agents, you're going to see a wide variety of practices," she said.
The current focus on the issue was sparked earlier this year, when Wainscott noticed the clause in her contract. She contacted the RWA, which sent out an alert to its members. That raised concern among other writers, who began checking their own contracts for the clause. Among them was romance writer Susan Kearney, who had been represented by Berger for the past six years. "I was very upset. Here was an agent I liked; that's rare. I felt he did a great job for me. But I had to leave."
Berger declined to be interviewed for this story. But Tabak said the interminable rights clause had been in place at William Morris for about five years. Before that, the agency's clause claimed the right to represent a work for the life of any publishing agreements plus one year. Tabak characterized the current controversy as a couple of romance writers making a fuss over a technicality. "I think they're ascribing a significance to something that transcends the importance it warrants," he said.
But authors said they consider the issue extremely serious, and they're concerned about what may happen in the future. "If the authors that are established accept it, it becomes the industry norm," Kearney said.
William Morris is not the only agency demanding such rights, according to an e-mail the Authors Guild sent to its members: "The interminable agency clause is used by several agencies, many of them quite competent and deservingly well regarded. We believe that most haven't given the clause much real thought and use it out of habit or because they borrowed language from another agency's form."
At Writer's House, Amy Berkower said her agency does not use such a clause, but she can see the logic behind it. "I think what a lot of people forget is we are not paid for our time; some books take five minutes to sell, some books take five years to sell, so we have to protect our investment," she said. She added that in some cases, agents do much more than sell a book: "They were the midwives who helped give life to the book." Nevertheless, she said, her agency does not use an interminable rights clause. "I think it can breed ill will that isn't worth it," she said.