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Author sues agent for 'favouring her own interests', whilst agent counter-sues for breach of contract

13 February 2017

In a very visible case, highly successful Australian author Kate Morton has accused the agent who kick-started her career of favouring her own interests. Morton is seeking a refund of up to $2.8 million paid to her agent in commission. Her well-respected agent Selwa Anthony is suing her former client for breach of contract relating to books on which she was entitled to receive her 15% commission.

Morton has been a highly successful author, who has published five bestsellers and earned more than $17.3 million since she brought out her first book in 2005. She has sold over 10 million books in 42 countries and in 34 languages.

In a cross-claim, Morton says Anthony breached her fiduciary duty and duty of care by failing to secure the "most advantageous offers reasonably available in the circumstances" when she signed up with Australian publisher Allen & Unwin.

Morton's debut novel, The House at Riverton, was a Sunday Times #1 bestseller in Britain and a New York Times bestseller in 2008. It was named General Fiction Book of the Year at the 2007 Australian Book Industry Awards. The agent accepted an $8,000 advance for this book.

The court proceedings continue but it may be tricky for Kate Morton's legal team to prove that $8,000 was not a good advance for a first book by an unknown author. Presumably the author would have agreed the deal at the time, as she would have been the signatory of the contract with Allen & Unwin.

The other aspect of this is that agents are generally entitled, by the terms of the agency clause in the author's publishing contract, to receive the income from the book and to retain 15% - or whatever agent's percentage has been agreed - in perpetuity.

This is a standard clause and prevents the author moving her backlist to another agent unless the agent has agreed to release it. Although the clause may seem to limit the author's ability to control his or her backlist, it also protects the agent who has done the work of finding a publisher for the author and negotiating the contract, as well as looking after the author's interests and making sure the royalties come through.

The Sidney Morning Herald story