Finally, after almost giving up, a literary agent has expressed an interest in representing you and your book.

She has sent you a contract, perhaps in the form of a letter. You read it over and notice a few things in it you don’t like, as well as some terms you don’t understand.

Can you change the things that you don’t like?

How can you get an explanation of what you don’t understand?

Agency agreements: What you should know

As an attorney who has helped writers work through contract issues, I’ve seen many agent agreements and I’ve developed a sense of how to guide writers through the process.

Here’s what you need to know before signing a contract with an agent.

1. Consider the terms carefully

Proposed contracts with agents are just that — proposed. They are not set in stone. They can be changed; terms can be negotiated.

When an agent sends you a contract, it is written to benefit the agent. Until it is signed, the agent is not looking out for your best interest. She’s looking out for her own best interest.

Once the contract is signed, the agent will be working for you to obtain the most beneficial terms possible from the publisher. Until then, you must look out for yourself.

You may hesitate to question the contract terms you are being offered when you’ve worked so hard just to get the offer. It’s understandable to worry about losing the representation offer entirely if you ask about or request changes to the agreement. All the same, your questions should be answered to your satisfaction before you sign the contract.

By signing, you are beginning a relationship that could last a long time. In some cases, the relationship lasts for the life of the copyright of the work — and that can be up to 70 years after you have died.

If the agent balks at answering your questions or fails to respond respectfully to your request for changes, she may not be the best person to work with you. (Note: I’m not saying the agent must agree to the changes you request, only that the contract negotiation process must be respectful.)

2. Ask your potential agent these questions

Make sure that this agent is the right one for you by asking questions, like these suggested by the Association of Authors’ Representatives, a membership organization for agents.

Ask to speak with her other clients. Has she represented writers like you? (Debut, previously self-published, multi-genre, etc.) Why did the agent select you? What is it about your work that looks promising?

Hopefully, you did your research before you sent out query letters and you know that this agent has experience in your genre.

Do not assume the agent works in your genre. It may be that she is looking to broaden her book of business. If that’s the case, you need to decide whether you want to be her test case.

On one hand, being represented by a new agent (or an agent new to a genre) may give you the benefit of her unbridled enthusiasm. On the other hand, she may not have the contacts needed to land a publishing deal.

You need to understand the role the tagent will play in your career.

• What help will she provide in developing your book?
• How will the agent work with (monitor) the publisher?
• Will she play a role in the editing of the book? What about cover design?
• Will the agent be involved in the marketing your book after it is published?

Once you understand what the agent is going to do for you, you can scrutinize the contract to see if the agent’s promises are in it.

3. Understand these contract provisions

Here are a few provisions you’re likely to see in your contract, plus what they mean for you.

The “Work”

The “Work” being represented is the first definition in the contract. Agents require that they be appointed as sole and exclusive representatives of the Work. If the contract is for representation of one book only, clarify that you are under no obligation to submit any further work to the agent and are free to use another agent or no agent for your next book.

The definition of the Work clarifies the scope of the contract. The agency agreement should be clear on your freedom to create derivatives of the Work that are not subject to the agent’s representation. A derivative is a piece that is based on or derived from the Work that is the subject of the contract.

This clarity is particularly important for a non-fiction writer. If your book is about your life’s passion or expertise, you do not want to be locked into a contract that requires you to pay the agent a percentage of everything you do, write or say about that passion from that point forward.

Tip: If the definition of the Work is vague, ask to have it tightened up to reflect your understanding that your entire body of work that exists now and in the future is not part of the deal. If the relationship is a good one, the scope of the contract can be broadened later.

“Subsidiary rights”

The goal of having an agent is to secure a publishing contract to produce a printed volume in the English language. But there is a host of other rights encompassed in the representation agreement and ultimately in any publishing contract.

Often the subsidiary rights, the right to produce the same material in different formats, are not defined. It is to the agent’s benefit to keep the term vague.

Subsidiary rights can include foreign publication rights, first and second serial, motion picture, television, radio, audio, dramatic performance, abridgments and all other rights broken down by geographic territory. The key is to understand which rights you are giving to the agent for representation.

Tip: List exactly which subsidiary rights are included in the representation agreement to eliminate any ambiguity in the contract.

Remember that you have control over your own rights and you can divide them between different agents, especially if an agent specializes in a particular type of transaction and not others.

Tip: Keep the subsidiary rights to the minimum generally required by a publishing contract: audio, foreign, first and second serial. Again, if things are going well or a publishing contract calls for it, you can always broaden the contract with the agent.

“Best efforts”

“Best efforts” means that the agent is going to work hard on your behalf to secure a publishing deal. But without detailing the specifics, the best efforts clause is toothless. The contract should outline what the agent is going to do:

• Review the author’s work
• Provide editorial guidance
• Develop a strategy for publication
• Be an advisor on the publishing industry
• Market the work and the rights to appropriate publishers
• Monitor the royalties

Tip: Include an accountability clause in the contract. This requires the agent to report regularly and to document the efforts made on your behalf.

The termination provision

If the agency relationship is no longer working out, you will want to end it. Agent contracts can last from 30 days to the life of the work’s copyright.

However, an agent needs to be given enough time to sell the book. The gears of publishing turn slowly, even in the digital age.

An author must be able to terminate the agency agreement if the agent fails to use her best efforts, or if the agent secures a print publication deal and then chooses to “sit on” or not actively seek exploitation of the remaining rights in the contract.

If an agent fails to use her best efforts to secure a deal or sell the subsidiary rights, you will have a difficult (if not impossible) time finding another agent to help you exploit those rights unless you can end the contract with the first agent.

Tip: If you sign a long-term representation agreement, ask for a provision that allows termination if the work hasn’t sold after a certain period of time — a year, for example.

4. Know the importance of the agent relationship

Agents have relationships with publishers that you do not have. You are paying them a percentage of your sales because of who they know.

You are also paying them to negotiate with the publisher on your behalf. Should a deal arise, there will be critical terms to work out between you and the publisher. Agents have knowledge and experience that you may lack.

Knowing what to expect (and what not to expect) in the relationship between you and your agent and understanding the contract that defines that relationship will help ensure a successful business partnership.

Are you looking for a literary agent? What questions do you have about what should be in your contract?

While Kathryn is a lawyer, this post does not constitute legal advice. For specific advice, please see a legal professional.

This is an updated version of a story that was previously published. We update our posts as often as possible to ensure they’re useful for our readers.

Photo via Amnaj Khetsamtip/ Shutterstock 

You have weighed the pros and cons, made a plan, and are ready to turn your side hustle into your full-time job. You have a couple of regular clients on board, with a few more waiting in the wings. You’ve cleaned out that weird little nook in the corner of your house and put in a nice desk and some office trappings so you don’t have to write with your laptop on your knees.

You’ve given notice to your employer, EasyPub, updated your website, and given yourself a pump-up talk. You’re ready to dive into life as a full-time freelancer!

Before you do, make sure you’ve planned ahead to get your legal ducks in a row — you don’t want the contract you signed with your employer to come back to bite you.

If you know your obligations, you’ll be able to prepare to launch your freelance business while staying on the right side of the law. Here are the things you need to consider before you leave your day job.

1. Your contractual obligations to your existing employer

If you signed a contract at any time while you were working for the company, you need to check to see if you agreed to these specific provisions. Some companies put these provisions in their employees handbooks, so you’ll need to look at that, too.

Non-compete clause

A non-compete agreement prevents you from working in competition with your employer and must be limited in time (generally not more than two years) and geographic scope. Non-competes are enforceable in most, but not all states.

If you have signed a non-compete, you must read it carefully to determine what you can and cannot do to make a living after you leave the company. For example, a non-compete might say that if you’re a copywriter for a marketing company in Chicago, you can’t work for any competitive company within a 25-mile radius for two years.

Non-solicitation of customers agreement

A non-solicitation of customers agreement is designed to prevent former employees from poaching the company’s customers for a limited period of time, usually a year. This is different from a non-compete and is becoming more common.

If your job involved close interaction with customers, they have a relationship with you. The company doesn’t want to lose the customers when they lose you as an employee.

As with the non-compete provision, non-solicitation provisions are enforceable in most states, but not all. You will not be able to work with the company’s customers after you leave your job if you signed an agreement with a non-solicitation provision in it. This provision could impact your projected income, if you were planning on continuing to write copy for Acme Corp. as a freelancer.

Non-solicitation of employees clause

If you’re leaving your job to start your own company and are planning to hire your own employees, you need to be aware of this provision. Many companies want to protect their workers from being taken by departing employees for a certain period of time, usually a year.

Again, the company is trying to protect its relationships with contract language and the contract, if reasonable, is enforceable in most states.

2. Your fiduciary obligations to your existing employer

A fiduciary obligation is the duty to act in another person’s best interest and not in your own. It means you have to put that other person first — and in this case it’s your employer. When you’re making plans to leave your job, keep these two points in mind.

Best efforts

While you are still with EasyPub, you have the obligation to use your best efforts at your job — even while you’re planning to leave it. Don’t get distracted by the excitement of going out on your own and forget to give your all to your current employer before you leave.

Duty of loyalty

If you’re a high-level or skilled employee with the company, you owe a duty of loyalty while still employed. When you’re planning to leave your job, you may not take any action that competes with the company (like convincing a prospective customer to hold an assignment until you’re on your own), even if you haven’t signed a non-compete agreement.

You always want to leave a job on good terms. Building and keeping good relationships with former employers will be useful as you develop your career and perhaps build your own company.

[bctt tweet=”Leaving your job? Don’t take any action that competes with the company, says @KathrynGoldman”]

3. Ownership of intellectual property and confidential information

While working for EasyPub, you had access to the company’s information. Some of the information had to do with customers, some of it related to EasyPub’s business and some of it you created yourself.

You have obligations to protect EasyPub’s confidential information and to respect its intellectual property even after you leave the company.

Intellectual property

Work you created while you were employed by EasyPub belongs to the company unless you have a written agreement that says otherwise.

When you are making your plans to leave EasyPub, you should not create any work on the company’s time, or using the company’s equipment, materials or other resources.

To be sure that what you create during this planning stage is yours and not the company’s, you should not use your company-issued laptop or other tools for your side hustle. Don’t use your company email address to do business for your new gig. Keep everything completely separate to protect yourself and your new business.

Confidential information

Most companies have provisions in their handbooks that require employees to return all company property, including all information in the employee’s possession, to prevent any disclosure of that information.

To comply, search your computer, email (including sent and deleted email), any cloud storage services, phone, iPad, and anywhere and everywhere else you might have stored files or data owned by the company.

Leaving a day job to go out on your own is an exciting time. Reduce the risk and calm your nerves by being thoughtful about how you do it.

Kathryn is a lawyer, but she’s not your lawyer, so this article isn’t technically legal advice. For legal counsel specific to your situation, please speak with an attorney.

How did you protect yourself as you prepared to leave a day job?

It’s all coming together. The story flows, your beta readers love it, the editor has clarified your prose and the book cover is spectacular. You are thrilled to hit publish.

As if in a dream, sales begin to grow.

Then, the dream becomes a nightmare: someone else takes your story. At least they seem to have taken your story. Scene after scene appear in someone else’s work as though lifted from your own. It’s not exactly the same, but nearly.

Surely, they can’t do this, you think. This must be illegal, at least unethical. Amazon should be told, you think. The other author’s work should be taken down.

But Amazon won’t take down the work because there is no plagiarism. There is no infringement. Your work is not protected.

Confused? Here’s why your work may not be protected and what you can do to make sure it is.

There are only so many ways to depict common themes

Perhaps you’ve written a gritty coming-of-age story about a young man whose tumultuous upbringing exposes him to a life of crime and violence which he is able to overcome. It’s about life in a hardened inner-city neighborhood, complete with drug corners, intimidating dealers, crack houses, prostitutes and chases with the “five-oh.”

The fact is, any story about life in America’s decaying inner cities will have these scenes and characters. It’s nearly impossible to tell a story in that setting without those elements.

Standard depictions of common themes are in the public domain. Scenes which are expected in the treatment of any given topic are not protected by copyright law. They are considered scènes à faire, or scenes that must be done.

If someone else writes a book with a theme similar to yours, there are going to be characters and scenes that will be common to both. Your use of those common elements will not be protected by copyright law.

Develop complexity

If you want your work to be protected, do not write in clichés. Be uncommon. Use your voice to give your story a life of its own.

Focus on developing feel, character, plot, mood, pace, setting and the sequence of events in your story. These are the things that make your work unique and give it protection under the law — and in the eyes of your readers, who often respect originality and disdain copyists.

The prostitute with a heart of gold is a character found in so many stories that she has become trite. But if she is written thoughtfully, as a complex character with specific conflicting attributes, the prostitute is no longer a cliché. She will have added richness for your readers. The richness will provide greater protection under copyright law because you have wrapped a standard character in unique expression.

It is the expression you want to protect, not the idea of the prostitute with a heart of gold.

Engage the senses

Although a scene may be common, a fully expressed mood that permeates a reader’s senses while reading the scene is unique.  Marianne Richmond has a great post demonstrating how to add further depth to your writing with respect to the senses.

In our story of the inner-city youth overcoming the odds, reach beyond the standard sketch of the drug dealers on the corner. Provide an enhanced description of the smell of the unwashed junkie buying his hit, the sodden feel of the dollar bills, and the oppressive heat radiating off the concrete shimmering with broken vials.

Tell your story uniquely

An inevitable scene in a city-is-tough story is the fight scene when the protagonist either gets beaten into submission by the street lord or acquits himself in combat well enough to earn respect and some measure of peace. Think of The Karate Kid.

Dig into that fight scene in a way that makes it unlike others to develop a scene with unique description and pace.

Avoiding clichés in your writing will help you produce a better, stronger and more engaging book. Then, if someone does copy your work, you will have a greater claim of protection and Amazon may remove the offender’s book and perhaps even ban that writer from KDP — potentially faster justice than a lawsuit.

How have you kept your work protected from copycats?