In our last Legally Speaking column, Sara Rutenberg addressed the issue of Agency Clauses. Based on responses we have received from various agents, it is clear that the column did not accurately reflect the reality of the marketplace. Ken Norwick, the general counsel of AAR (Association of Artists’ Representatives) sent the following clarification which Sara concurs with:
Sara Rutenberg's column entitled "Agency Clauses" does not reflect the reality of contemporary author/agent relationships and thus provides unrealistic and probably counter-productive advice. Although each author and agent is free to establish the terms of their relationship, authors will be hard-pressed to find a reputable agent who would agree to the column's advice. The bedrock premise of most agency relationships today is that the agent's compensation derives from an ongoing commission on earnings from the author's work represented by the agent, which commission-interest lasts for the life of the work. (Many works take years to achieve significant earnings.) For that reason, the column's suggestion that the author should be able unilaterally to terminate that commission-interest — and/or that the interest should be made "revocable" by the author — would be considered a non-starter by most if not all agents. This does not mean that the author can't unilaterally change agents, but it does mean that the author cannot thereby deprive the original agent of the commissions to which she is entitled for the life of the work. Similarly, the column's suggestion that authors avoid "agency clauses" in their publishing agreements is also a non-starter. Such clauses are essential to enable the publisher to deal with the agent and also to set forth and effectuate the parties' agreement concerning commissions. We respectfully suggest that an author who encounters an agent who agrees to adopt the column's proposals should consider why the agent would do so, given the reality set forth above.
Ken Norwick, General Counsel, Association of Authors' Representatives (AAR)