Q. My agent hasn’t sold my novel, hasn’t made specific submissions I have requested, and has otherwise failed to represent me adequately. I have completed a second novel and wish to get a new agent, but my current agency agreement has a term of one year, with five months left. Can I terminate the agreement right now?
A. Whether you can terminate any agreement before its term depends on the specific provisions of the contract with regard to termination, if any, and also which state law applies (usually stated in the agreement). This is important because each state has slightly different standards regarding what is a “breach” of contract that entitles a party to terminate an agreement.
In general, however, a breach is a failure to perform as promised, and after a breach occurs, the injured party can seek money damages, terminate the agreement, or both. BUT – the breach must involve more than just an incidental part of the required performance: it must be a material failure. For example, if you hire a roofer who satisfactorily repairs a leak but leaves construction debris on your lawn, the failure to clean up would not be considered a material breach (unless you specifically made cleaning-up a part of the contract). If, however, the roof still leaks, that clearly would be a material breach and you would be justified in refusing to pay, or suing for a refund of your payment.
In your situation, your agent’s failure to sell your book in a seven-month period would be a material breach only if he or she failed to make any submissions (or only very minimal submissions) because often a book is never sold despite the best efforts of an agent. Your agent’s failure to submit to specific publishers also would not be considered a material breach unless these specific submissions were part of your agency agreement. And “failure to adequately represent you” would require evidence of specific conduct required in the agreement, or lack thereof.
But even if your agent’s conduct clearly constitutes a material breach and you send a termination letter, it might be a Pyrrhic victory. Typically any new agent will not be willing to risk working for you while there is a dispute with your former agent. You might be better off using the remaining time in the agreement to find a new agent, with the understanding that their representation would begin when your current agency agreement expires.
An even better solution is to just ask your agent to release you from the agreement. Most agents will do so rather than keep an unhappy client (who, by the way, has made no money for the agent). Just keep in mind that some agency agreements have a clause requiring you to pay a commission on royalties from publishing agreements made during a period of time after termination (usually six months), if the purchasing publisher had originally been solicited by your agent. If so, you should get a list of all such publishers from your agent upon termination.
© 2011 Daniel Steven