Duhaime's Law Dictionary


Literary Agent Definition:

A person who represents the author of a book for which publication is sought, represents that author with prospective publishers.

Related Terms: Agent

The literary agent acts as the business representative of the prospective author in regards to a manuscript and the representation of that manuscript to publishers suited to the work.

As Sambuchino suggests in his 2013 book:

"A writer's job is to write. A literary agent's job is to find publishers for her clients books....

""Any large publishing houses will only look at manuscripts from literary agents."

The legal concept of a literary agent is not something that exists in the wild of law or, as lawyers would phrase that, in the body of the common law. Nor is it generally provided in statutes, aka the real fancy Roman law phrase lex scripta.

Literary agentSince, as its name suggests, the legal creature known as a literary agent acts within that part of the body of law known as agency, and so it is entirely contractual in nature. In other words, the duties and responsibilities of a literary agent are whatever his or her contract with the author establishes.

The literary agent in in a fiduciary role towards the author, another distinct legal phrase but which implies that as far as the subject matter of the contract goes, the agent would always put the interests of the author before the personal or business interests of the literary agent.

Generally speaking, however, in the law of intellectual property, a literary agent is a discrete agent and in essence stands between the author of the book (usually just a manuscript, not yet published), and the several prospective publishers of the written work. He or she, the literary agent, is engaged by the author to market the manuscript to prospective publishers including at, but not necessary limited to, direct submissions to prospective publishers or the presentation of the manuscript at book fairs and, if a publishing contract ensues, to handle related business transactions respecting the author's story.

In his 1995 book on publishing law, Jonathan Kirsch wrote of the literary agent as a deal-maker:

"The highest calling of the literary agent is the ability to generate a market for the author's work and to find a buyer who will pay the highest price....

"A (literary) agent may suggest a project to an offer, assist the author in finding a collaborator, alert the author to a publisher in search of a writer for particular project. Often a literary agent will shape and sharpen the book proposal to make it more marketable and the rare agent may be able to guide the author through a rewrite or a polish of a manuscript."

As Kirsch suggests, it is neither the role nor should be the responsibility of the literary agent to polish or even read a manuscript.

"... aan author should not expect editorial services from their (literary) agent."1

This can create some friction as a prospective author reasonably wonder how his or her manuscript can be enthusiastically marketed by an individual who has not read the manuscript. This is generally overcome by the author providing the literary agent with a synopsis.

Some of the common elements of a contract which establishes the parameters of a literary agent include exclusivity, a set term and the right to bargain around the publishing rights of the manuscript is a book and other related rights such as movie or electronic publication. The literary agent is either paid in the form of a commission based on sales (eg. 10-15%) or on an hourly rate basis is what a lawyer.

The use of a literary agent is optional. It is reported that in the United States, 80% of published manuscripts are submitted by literary agents. But in Canada, the percentage is only 20%

REFERENCES:

  • Kirsch, Jonathan, Kirsch's Handbook of Publishing Law (Los Angeles: Acrobat Books, 1995), pages 42-43.
  • Sambuchino, Chuck, 2013 Guide to Literary Agents (2012, Blue Ash, Ohio, Writer's Digest Books)
  • Writers Guild of Canada, Author and Literary Agent (2013), 11-page booklet.Also NOTE 1.

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