One question that’s come up a lot lately for me involves writers not being sure if they have a contract in place with an agent or publisher, particularly where the contract is not in writing.
Starting (*ahem*) with my usual disclaimer as always: Nothing written here is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney.
So on to contract basics …
The legal definition of a contract, at least under American law, is basically an agreement between two or more people where each provides “consideration” to the other. Consideration here doesn’t mean being nice to each other, although that’s always a plus in a business relationship. Consideration means that each person does something for the benefit of the other: for example, I’ll pay my agent a commission if she sells my book to a publisher. We both get something out of the arrangement. That something doesn’t have to be money, but in publishing, it usually is because we’re all about selling those books and stories!
Most of the publishing contracts we enter into as authors don’t have to be in writing to be valid and enforceable. American law does require certain contracts to be in writing, but typically contracts for things like licensing copyrights to publishers are not required to be written or signed to be valid.
However, it’s a good idea to have all your contracts in writing simply so everyone understands what the contract terms are, and so there are no ambiguities: for example, which rights are you licensing to a publisher (print, ebook, audiobook, foreign rights etc)? For how long? What happens if you want your rights back or if the publisher fails to publish the book or stops publishing the book after a period of time?
Most publishers will give you a written contract that you or your agent will negotiate with them for exactly these reasons.
However, contracts with agents are often more fluid. Some agents will offer you a contract for one project and then keep working with you after that without putting a new written contract in place. Some agents offer “handshake” arrangements in the first place and never put your agreement with them in writing. Legally, this is just fine although, again, you may prefer to have something in writing so you all know what the terms are. Then again, the terms of agent contracts, particularly with established agents, are all pretty standard and well understood and a handshake is usually fine.
If you started with a contract in place with your agent for one project, and then kept working with her subsequently without updating the contract, as a general rule of thumb, whatever terms you agreed to (in terms of her commission etc.) will likely remain in place unless you agree to change them. Typically, agent contracts can be ended with notice by either party to the other, although some agency contracts have fixed terms. If your agent sells one of your projects, and then you stop working with that agent, that agent will likely still get royalties from the project (s)he sold, but you will be free to work with a new agent on new projects.
Because you don’t know what’s going to happen down the road, it’s a good idea to get a few key points in writing upfront (even if it’s only via email) as that will give a good indication of what you believed the agreement to be. But the key point is that contracts don’t have to be in writing, and they don’t have to be in formal written documents signed by both parties, to be valid. So it’s important to know what you’re agreeing to and whether discussions and emails with your agent or publisher are intended to be part of your contract terms or not.