The Interminable Agency Clause
from The SFWA Bulletin #163, Fall 2004
The Interminable Agency Clause: Don't Let It Happen to You
The clause, generally known as the "interminable agency" clause although some agents use "agency coupled with an interest" instead, grants the agency the "exclusive, irrevocable right to represent the works subject to the agreement for the entire term of those works' copyright."
It appears that the William Morris Agency pioneered the use of this clause, especially when signing new authors of romance novels. The clause has spread to the contracts of other equally reputable agencies and has been reported by members of several writers organizations. It is a particularly hypocritical addition to a contract, as no agent would ever allow a publisher to add to a contract an interminable right for a work that had been allowed to fall out of print.
The Guild identified four particular problems that might befall authors or their heirs:
2) The clause can greatly complicate the task of an author's literary executor.
3) Your agency is unlikely to be around for the term of your copyright, which is now lifetime plus 70 years.
4) The clause may conflict with other agreements signed with the agency.
Although most reputable agents will drop, or suitably modify, the interminable rights clause when asked to do so, authors should not need to encounter this clause in the first place. The Guild has now added the following to its Model Contract commentary:
The complete text of the Advisory can be found online at: http://www.authorsguild.org/news/burdens_agency_outweigh.htm
That's the good news. The bad news, as gleaned out of Olivia Hall's yearly summary from the October 2004 RWR, is the science fiction/fantasy category is a mere 6% of the total popular fiction market, down a full half percentage point from the previous year.
Overall sales of hardcover, trade and mass-market paperback popular fiction rose 1.6% to 662,696,000 books in 2003. Romance had 33.8% of the pot; mystery, spy, and suspense combined for 25.6%; general fiction was 24.9%; and other, which includes religious, occult, historical, western, male adventure, adult, and movie tie-ins, fell to 9.7%. Paranormal romances were up sharply to 120 titles in 2003, by the way.
For the first time, IPSOS came up with a number for audio/digital sales, an additional 11,124,000 units across all categories.
Kirkus Sells Reviews
Can You Copyright Christmas?
Brian Webster's agent shopped his Christmas-themed script to Fox in June 1994. Fox released the substantially similar movie, Jingle All the Way, in 1996, after approving a script by Randy Kornfield in July 1994. However, Kornfield had already registered a treatment with the Writers Guild in January of that year.
The court found against infringement by Fox, on two grounds. It noted that the majority of stated similarities already existed in the treatment, which could not have been written based on Kornfield's script. The rest of the similarities, Faraldo wrote, were "derived from unprotectable ideas – such as incidents, characters or settings that are standard in the treatment of a given topic." You can't have a Christmas movie without Christmas clichés. When plaintiffs cannot prove access to the original work, ruled the court, they must demonstrate not substantial similarities but striking ones.
Amazon Power Play?
Small and independent publishers have angrily denounced the contract, using terms like strong-armed, heavy-handed, and even blackmail. An Amazon spokesperson had no comment.
In the September 2004 RWR Stephanie Bond reported that he has now expanded the service from bookstore kiosks to a behind-the-counter system. Publishers Weekly reported that the system allows "booksellers to search for books by title, author, ISBN or reviewer as well as by media—radio, newspaper or television—that have mentioned the title or the author." Another reason for all the publicity you can garner.
Electronic Ink Books Appear in Japan
The Electronic Paper Display is reflective and can be easily read in bright sunlight or dimly lit environments while being able to be seen at virtually any angle - just like paper. Its black and white ink-on-paper look, combined with a resolution in excess of most portable devices at approximately 170 pixels per inch (PPI), gives an appearance similar to that of the most widely read material on the planet - newspaper. Because the display uses power only when an image is changed, a user can read more than 10,000 pages before the four AAA Alkaline batteries need to be replaced. The unique technology also results in a compact and lightweight form factor allowing it to be ideal for highly portable applications.
No sooner than Sony announced its product than Matsushita's Sharp claimed that it will have a paper-thin (i.e., under 1mm) reader in shops by 2007. Online reports also mention a forthcoming color “LCD paper” that doesn’t need a light source, apparently by upping the amount of light the paper reflects.
A good article on the subject by Karen Lowry Miller in Newsweek International is available at: http://msnbc.msn.com/id/4880556/
No credit, because everybody jumped on this.
Too Good Not to Be Shared
"This is the explanation of the high prices that prevail in the literary business….
"It is a game in which the odds today are rather on the side of the player. Twelve years ago… a book was quite as apt to show a loss as a profit, and several of the larger firms were on the edge of insolvency. The situation has changed since then; even the 'average novel' – if such a thing exists – is a mildly profitable venture, and consequently publishers have discovered that they can double their profits merely by issuing twice as many volumes. And so the number of dull books, of useless books, of books that are a drain on the business as a whole, has dangerously increased….
"Let us remember, moreover, that chain stores have not abolished the corner grocery. Mail-order houses, although they deal directly with the manufacturer, have not destroyed the independent jobber. Booksellers and publishers are in no danger of extinction; they may ever find that their business is increasing, but probably they will be forced to revise their methods still further to meet the new competition. They may, for example, cease to gamble on the sort of books that 'really aren't so bad, and the author may do better next time.' They may prune the dead wood from their list of titles, and confine themselves to the books that are really worth publishing. And possibly, after they have done away with their useless risks – possibly they may even decide to reduce the price of prices."
Malcolm Cowley, "The Literary Business," July 3, 1929
Organization, Publication, Address, Web Address
Authors Guild, Bulletin, 31 E. 32nd St. 7th Floor, New York, NY 10016, www.authorsguild.org/
Romance Writers of America, Romance Writers’ Report, 16000 Stuebner Airline Dr., Suite 140, Spring, TX 77379, www.rwanational.org
Novelists, Inc., NINK, P.O. Box 1166, Mission KS 66222-0166, www.ninc.com/
Back to the top of the review