Q. What does “coupled with an interest” mean? The phrase is used in the agency section of my contract.
A. This phrase is a confusing one, and I’m willing to wager that most agents who have it in their agency clause understand neither its meaning nor its purpose and included it only because someone suggested that they “should” have it.
The typical purpose of the phrase is to assure that the agent’s appointment will be irrevocable. Under the law governing relationships between agents and the people appointing them, an agent’s appointment will be irrevocable — and continue after the death or insanity of the person who appointed the agent — only when the agent has a legal interest (as part-owner, for example) in the “subject matter” for which the agent was appointed. Saying in a contract that the agent’s appointment is “coupled with an interest” is intended to be an acknowledgement by both parties to the contract that the agent has that requisite legal interest.
Unfortunately, the phrase’s use in publishing contracts is not only confusing but also generally ineffective to accomplish the intended purpose. There are two reasons for this.
One, the concept that an agent’s appointment can never be revoked is contrary to a basic provision of the law of agency. Second, the interest that the agent must possess in the “subject matter” – which, in a publishing contract, is the manuscript — has to be something other than the right to receive part of the proceeds derived from exercising its authority as the agent (i.e., something other than its commission). Thus the phrase cannot be validly used in the typical author-agent relationship since, absent special circumstances (e.g., if the author and agent were co-authors), the agent lacks the requisite legal interest in the author’s manuscript.
The effect intended by use of the phrase can be better achieved by deleting any reference to “coupled with an interest” and using the word “irrevocable” in the right places in the agency clause. Although your agent’s right to receive its commission for monies paid under the contract is properly characterized as irrevocable, nothing else in the section should be characterized that way except for your agent’s right to receive its share of each check from the publisher, its right to receive royalty statements and the percentage designated as its commission. If “irrevocable” or “irrevocably” is used to modify any other right or grant in this section, delete the word. Among the matters that should not be irrevocable are the appointment of your agent, the agent’s right to receive a single check for the full amount and (if included in the section) the agent’s right to bind you or act on your behalf.
(Originally published in the Spring 2007 issue of the Authors Guild Bulletin. © Mark L. Levine)
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