Good Practice Guidelines for New Agenting Services
In recent years, the industry has diversified significantly. Whilst members continue to serve authors by selling rights in their work to third parties and to be paid by commission for such work, many literary agencies are now offering a wider range of services to clients than they used to and a broader framework of good practice is required.
These guidelines to which members of the AAA are required to adhere are not intended to amend or replace the terms of the Code of Practice, which remains paramount. Members are reminded that an agent has an overriding fiduciary duty to act in the best interests of their client at all times.
1. Members shall clearly set out in writing their terms of business with regard to all services offered to an author, for example in a client agreement or in an addendum to an existing client agreement. Where appropriate, members shall explain clearly what services they offer, for example what processes they undertake when assisting a client to self-publish.
2. If a member wishes to make a special commission arrangement (ie a higher commission than would be charged for a standard UK or international publishing deal) for any services then the client's prior written consent must be obtained. Any member considering such arrangement is strongly advised to consult the AAA committee in advance as to the propriety of such an arrangement.
3. In advance of assisting any client with self-publishing, members shall make it clear in writing to the client which costs shall be borne by the agency, the retailer and the client respectively.
4. When a member, in assisting an author to self-publish, agrees to terms with any retailer on the author's behalf, they should first draw the author's attention to the terms and conditions and emphasise any clauses of particular interest or relevance, for example any exclusivity requirements or pricing regulations. The member should ensure that the author understands the implications of what they are signing (and that such terms and conditions may be subject to change without notice) and what other options are available and should suggest that the client may wish to take third party advice from the Society of Authors or a lawyer.
5. When a member assists a client to self-publish, they may be required to agree to certain obligations, to make warranties and to grant certain rights to retailers or to distributors which would usually be made or granted by the author or publisher and not by his or her agent. If the member is required to make such agreements on his/her own or on the author's behalf, he/she shall first of all draw the author's attention to and explain the details of the proposed agreement and obtain the author's written permission to make it. If appropriate, the member shall transfer certain of such warranties and obligations (such as that the work is not libellous) to the author by written agreement.
6. When facilitating self-publishing, members should seek ways to add value by advising authors on all aspects of the publishing process including but not limited to editorial matters, briefing a jacket, writing metadata, devising publicity plans, strategizing on price, marketing, formats and advising authors on the full range of retail platforms available to them. Members who are facilitating self-publishing should send authors 'proofs' of their works for approval unless otherwise agreed in writing.
7. Members shall make no decisions on matters relating to self-publishing arrangements (for example decisions over the RRP, the possibility of involvement in ebook lending schemes, or subscription deals or print/ebook bundling) without first obtaining the author's approval. Members should provide the author with sufficient background information that the author is fully informed prior to giving any such approval.
8. Unless instructed otherwise by their clients members shall:-
i. offer clients regular access to sales figures in respect of self-published works being managed by the agency, either directly from the retailer or by copying statements to the author promptly (within 21 days).
ii. provide that monies should be paid to their agency by the retailer as frequently as possible.
iii. ensure that any such monies shall be passed to the author within 21 days of receipt by the agency as set out in the Code of Practice.
9. If a member facilitates publication of an author's book exclusively through one retailer, the author's permission to do so must always be sought first and the member shall endeavour to secure the best possible terms with the retailer on the author's behalf. Members may make provision in their client agreements that once such permission has been granted by the author, the agency may continue to earn commission (as set out in the client agreement) on sales of the book throughout the limited term of such an exclusive irrevocable agreement, even if the author should resign from the agency within such term.
10. If a member requires an author to commit to representation by the agency for a fixed period of time for any reason, which is not considered to be standard practice, the member should recommend that the author take independent advice from a lawyer or from the Society of Authors first before agreeing to such a suggestion.
11. When members assist authors to self-publish, they shall not act in any way which would prevent or deter an author from resigning from their agency on notice. The written terms for such arrangements should include reasonable provision for the author regaining control over all aspects of their self-publishing in the event of the author resigning from the agency, including provision, if the author asks for their work to be 'un-published' from a retail platform, for the member to serve notice to that effect without delay subject to any exclusivity period entered into with a third party with the author’s original consent. In the event of an author resigning from the agency the member shall return to the author all documents and property originally given to the member by the author and documents prepared by the member on the instruction of the author although the member is of course free to retain copies of contracts they negotiated.
12. Members may not receive payments from third party companies in recompense for introducing authors to those companies and recommending their services.
13. No member shall engage the services of a client for example as a writer-for-hire or a co-writer or co-owner of Intellectual Property or copyright, or licence rights from a client, without declaring to the client in writing any proprietary or profitable interest stemming from such an arrangement and should suggest that the client may wish to take third party legal advice prior to making any such formal agreement with the agency. If the member should have a profitable interest in a contract beyond normal commission arrangements as set out in the client agreement, then the member may not charge commission on the client's share of the earnings from such a contract.
14. The AAA’s Code of Practice stipulates that no reading fees should be charged to clients or prospective clients without the client's prior consent in writing. If any member offers paid editorial services, then the terms of such business should be clearly set out and distinguished from the member's services as a literary agent. If no guarantee of representation is offered to an author using a member agency’s editorial service or attending a writing course run by a member agency, then this should be made clear to the author at the point at which such services are offered.