The Young Dramatists Issue 1
What You Should Know About Representation
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At a certain point in a dramatist’s career, the question of representation arises, whether that be an agent or personal manager. An agent or manager can open doors for their clients, give business advice, and be a valuable ally and support system throughout an artist’s professional development. However, acquiring representation is no simple, straightforward task. This article addresses some of the issues that might arise when seeking out or considering representation.

Agents vs. Managers

The distinction between agents and managers is not always clear, but there are certain differences. Generally, agents secure opportunities for their clients, while managers address matters of professional development. In states like California and New York, agents must be licensed as an artists’ employment agency, while managers are not subject to this regulation.

Agents utilize their contacts to get a client’s plays read and produced. They negotiate contracts, explain the content to their clients, and monitor those contracts to ensure prompt payment. Some agents will also offer limited editorial assistance.

Managers offer career advice to their clients, both artistic and business related. They may also provide counsel on publicity and public relations.

An alternative to an agent or manager is an entertainment lawyer, who usually enters the scene once a deal is ready to be negotiated. Entertainment lawyers will either charge an hourly rate or a percentage of a client’s royalties, and the relationship can be terminated at any time. They rarely procure opportunities for their clients but rather negotiate and draft contracts. Be sure to work with an attorney who is familiar with entertainment law, in particular theatre contracts.

Finding Representation

The Dramatists Guild Online Resource Directory offers an extensive list of agencies. Some agents may charge a reading fee, although such fees are unfavorable, while others may not accept unsolicited submissions. In most cases, submission information can be found on an agency’s website.

Some Questions for the Prospective Representative

When considering different options for representation, it’s imperative that you ask questions that will help you assess whether you’ve found the right fit. Remember, an agent or manager works for you, so your relationship should be built on trust and open communication. Ask a prospective representative what markets your work might appeal to, then find out if your potential agent or manager has contacts and past experiences in those markets. You want to be represented by someone established and experienced, but you might want to avoid signing with someone who has so many clients that your work won’t get the energy and attention it deserves.

Other questions that you might want to ask

How long have you worked as an agent?

• How many people work at your agency?

• Are there agents in your company who specialize in movie and TV rights? Foreign rights?

• Does your agency have sub-agents overseas or elsewhere in the United States?

• Who else does your agency represent?

• What approach do you take regarding career guidance? Do you offer editorial input?

• How will I be informed of your activities on my behalf?

• Do you consult with your clients on all offers?

• What fees and commissions do you charge?

• Does your agency charge its clients for any specific expenses, e.g., photocopying, long-distance telephone calls?

• How and when does your agency process and disburse clients’ funds?

• In the event that you are suddenly unable to continue as my agent, are there provisions for continuing the operation of my account?

• What is your experience with negotiating contracts?

• Does your agency retain an attorney to review incoming contracts?

These questions should help you gauge the possible effectiveness of your representative and help you decide whether this person or agency the right fit for you.

Agency Agreements

Certain agents might want to rely on an agency clause in an executed production contract in order to dictate the terms of the author-representative relationship, rather than enter into a formal contract.

To best avoid possible conflict in the future, enter into a written contract that is fairly negotiated and clearly defined. This contract will govern in the event that an executed production contract is not yet in effect. Several different issues are raised by an agency agreement, some of which are addressed below.

Commissions and Expenses

An agency agreement should plainly stipulate the fees and commissions that are to be paid to your representative and the services that are to be provided in exchange for that payment. The standard commission rate for professional productions is 10% of any royalties, advances, and option payments, and up to 20% for amateur productions. Certain agencies may charge their clients for expenses incurred during representation. Such expenses should be clearly defined in your agency agreement, along with a clause requiring that any unusual or excessive expenses are subject to your prior written approval.

Many agreements will state that all payments from contracts will go through the agent, who will then forward the appropriate funds to their client after deducting their commission. While some prefer having their agent act as collector and bookkeeper, it is your personal decision whether you want your agent handling your financial matters. An agency agreement should provide a specified timeframe within which your agent must forward your funds to you after receipt from the producer. If your agent does receive payments on your behalf, you might find out if the agency retains separate bank accounts for clients’ payments and for agency funds. If your agent collects payments on your behalf, problems might arise in the event of bankruptcy or death. In either case, the recovery of funds might require legal intervention, and specifically regarding bankruptcy, other creditors might have earlier rights to funds before you do.

If your agreement is exclusive, your agent might be entitled to a commission from every contract you enter into during the life of your agreement, even if you are solely responsible for a contract. Remember, if your agent negotiates a contract on your behalf, they will receive a commission for the life of that contract, regardless of whether the agency agreement itself is terminated. Furthermore, an agent might insert a provision into an agency clause of a production contract to stipulate that they will continue to receive a commission on the entire life of the work, in all its uses from that point forward. If this is the case, you might find yourself paying commissions to two agents if your relationship with the first agent ends, unless the two agents agree to split one commission.

Scope: The scope of the relationship between you and your agent should be clearly defined in a contract. This includes specifying which works are covered, which rights in those works are covered, and the geographical area in which your agent has the right to represent you. Your agent might want the rights to all your work in all languages and all countries for a specific time period, while some agreements might only cover a specific list of rights to a particular work. If you elect to grant extensive rights to your agent, ensure that they have the resources to make the most of those rights. An agent must get their client’s prior consent before entering into a contract, and any contract requires your actual signature to be valid. Any agreement you enter into should require that your agent makes you aware of anything that is relevant to making important business decisions.

TerminationSince an agent is making a long-term investment in their client, they will likely want the exclusive right to represent you for a specific time period. One to two years is a typical length of time for an agency agreement to remain in effect, though shorter or longer terms are not unusual. The long-term nature of an agent-client relationship magnifies the significance of finding someone you trust and with whom you work well. If an agent inserts language into an agreement that allows them to terminate the agreement at any time, then you should have the same right. An agreement should also specify what happens in the event of the death or incapacity of either the agent or client.

For an in-depth analysis of a standard agency agreement, see “Anatomy of an Agency Agreement” by Leigh Birnbaum (The Dramatist, May/June 2017).

Good representation can be greatly beneficial, offering access to professional contacts and development opportunities, increasing visibility while shouldering some of the responsibilities of the business side of your profession. As always, contact the BA Help Desk for any questions regarding representation.