Ask Author Law

The role of agent and attorney

December 30, 2014

Tags: Author Law, Foreign Rights, Writing, Sallie Randolph, Copyright, Publishing, Books, Contracts, Agent, Literary Agent, IP Law, Intellectual Property, International Publishing

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: In a rapidly changing industry agents indicate one of their values is negotiating international or business relationships. Isn’t this a service an IP attorney could handle for an author?

A: The role of an agent and an attorney depends entirely on the individual relationship with the client. Both agents and attorneys are generally capable of negotiating contracts and “doing deals” on behalf of their clients, but the specific services they offer depend on how they choose to structure their literary agency or law practice.

In general (but not always) an agent markets a work on behalf of her clients and also negotiates the terms of a deal when the work is licensed to a publisher. Most lawyers, myself included, do not market the work of their clients to publishers, but they do negotiate publishing contracts. Agents are usually compensated through a commission (the going rate is 15% -- sometimes higher on foreign and film licenses) on everything the author earns from a particular work. Lawyers usually charge a flat fee or hourly rate, although some may charge on a percentage basis.

The most important difference between a lawyer and agent is that the lawyer-client relationship is completely confidential and legally privileged. A lawyer’s first obligation is to act in the best interest of the client -- even if that means acting against her own best interest. An agent may have many clients working with the same publisher and might be less inclined to advocate vigorously for an individual client if that means antagonizing the publisher.

A useful analogy might be to compare a literary agent with a real estate broker. You need a broker to sell a property, but you also need a lawyer to review the legal aspects of the transaction and make sure your interests are fully protected.

A writer with substantial international sales would benefit by using both an agent and an attorney.