The Business Rusch: Advocates, Addendums, and Sneaks, oh my!
Kristine Kathryn Rusch
Sometimes I’m really slow on the uptake. I mean face-palm, well-duh slow. Sometimes it takes a knock to the head to make me put all the pieces together into one big gigantic lump.
The knock on the head came earlier in the week, as I read various documents sent to me for my business, and documents sent by other writers asking for advice. Dean Wesley Smith and I often look at contracts, agreements, and other legal documents for writers—not to give them legal advice because we can’t. We’re not lawyers, for one thing. But we have seen about 10,000 publishing contracts and other documents in our 25 years together, and we know how publishing works. So we will tell writers what they have in general, and what kind of help to hire (if need be). We are the first to admit if something is beyond us, and we often recommend the services of an intellectual properties attorney.
We used to recommend agents, but we slowly stopped doing that. Some of it was simple: we didn’t want to endorse any one we weren’t intimately familiar with. But it became more complex than that. Some of our agenting friends had left the business. Others had moved to companies that had rather unseemly business practices, and still others had morphed their agenting business into something unrecognizable.
Rather than walk through the thicket of ethics, friendships, business partnerships, and individual monetary policy, we just stopped recommending any particular agent. Over time, we stopped recommending agents at all.
During that same period of time, we saw a lot of publishing contracts that were…dicey…at best. We figured that because the contracts were for newer writers, the contract itself was a lower level of contract.
Let me explain.
When I worked for a textbook publishing company in the early 1980s, I was shocked to discover that the company had wall-sized file drawer filled with contracts. The contracts were marked 1-500 (or whatever the upper number was). When a deal got completed, the editor would tell me—the lowly secretary—to pull a contract by number and fill in the blanks with the writer’s information.
Because I was efficient, young and annoying, I usually finished my work before all the other secretaries. Because I was learning the business, I spent the rest of my time reading. After I had read every book we were going to publish that season, I started reading contracts.
And I got my biggest education ever.
Because those contracts were all for the same kind of book. The only difference was the level of clout that the writer had. The more established writers got contracts in the middle numbers (100-300). The bestselling writers or the ones whom the company really, really, really wanted, got the higher level contracts (301-450). I didn’t know anyone who got contract 500. But I knew a lot of writers who got contracts 20-99.
Only one writer got contract #1. And that contract was its own particular version of hell. The only reason I knew about it was because this poor woman had signed the contract with the company ten years before I started there. She was writing an education textbook. (Let’s not dwell on the irony here.) Every time new information came out, or the education department in the publishing house changed editors, or someone else published a similar book, this poor woman had to revise her unpublished manuscript.
In ten years, she had revised it ten times. For the smallest advance the company gave—which was, I believe, $1,000, paid ten years before. The newly revised manuscript came in just before the editor who hired me left the company. His replacement took one look at this cobbled together thing, no longer readable (if it ever was), and asked, quite sensibly, “Why are we spending company time on this? It’s unpublishable.”
He drafted a letter which I typed, rejecting the manuscript. Then, per terms of this woman’s contract, he asked for the advance back.
Me, naïve little writer that I was, I argued that she shouldn’t have to repay her advance. And to be perfectly fair, I think the man who hired me would have ignored that contract clause. His replacement was a 20-something salesman who had no editorial experience at all, and who needed to make his bones with the company.
He took one look at me, and laughed. “It’s in her contract,” he said. “If we reject the final manuscript, she has to repay the advance.”
“But she rewrote it ten times,” I said.
He shrugged, told me it was none of my business, and sent the letter. I quit a few weeks later—not, I should say, in a huff because of this woman’s treatment. I understood contracts, even then. But because I was bored. I’d run out of contracts to read.
I tell you this story partly to show how important contracts are, and partly because things have always been like this in publishing, but mostly to explain why Dean and I thought the contract terms crossing our desks had more to do with the age, experience, and clout of the writers who were asking for our help than with changes in the industry.
At the same time, publishing was going through other changes. Conglomerates bought out many of the independent large publishers, merging and merging and merging. The publishers became part of a multi-media environment, and they were only a branch of some conglomerate somewhere that had fingers in much larger pies.
At some time in this period, editors lost their ability to buy books. When I came into the business, an editor could buy a book if the advance was beneath a certain amount of money—say, $50,000. Over that, and the editor had to consult with the publisher. Over mid-six figures, and both the editor and publisher would have to consult with the head of sales.
By the turn of the century, that changed as well. Editors had to consult with an executive editor and the sales department before presenting a book to the publisher for possible purchase. And even then, the publisher and the head of sales had to agree that the book was worth the miniscule advance the editor was going to pay for the book.
I was noticing a few other things at the time, but not putting them together because my own career had hit a crisis point. My agent and I would negotiate a contract. Then we’d get the contract, and we’d have to remind the publisher that we had changed certain terms. The terms would get changed back.
Or we’d negotiate a contract, then sell a second book six months later on the same terms. Only when the contract arrived, it would be a completely different document. While the terms we had explicitly discussed would be the same as the ones we negotiated, the other terms, from the warranties to the deep discounts, would be extremely different.
Ever since I worked for that textbook publishing company, I read contracts with a ruler in hand, going over the contract line by line. And if the contract had to be compared to a previous contract, I’d have the contracts side by side as I went over them.
(One of the many agents I fired in this time period was stunned to hear I did that. Apparently this agent hadn’t thought of that technique and was happy and surprised that I was so smart. Naw. I was pretty dumb to hire a person who didn’t understand each word in the contract and how contracts worked.)
As I went over those contracts, I’d find the slightest changes, sometimes just one or two words. But those words would add up to things that benefited the publisher immensely and often negated other things in my contract.
After I had switched agents, I forced one publishing company to redo a contract completely. We had made our deal “on the same terms as the previous contract” and yet when the contract arrived 75% of it was different. Why? I had left an agency that also represented this publishing house’s largest bestseller, and moved to an agency whose largest bestseller was with a different publisher.
My new agent told me not to fight it; they had a different boilerplate with the publisher. But the publisher’s representative, my editor, had agreed to the same terms, and had done so in an e-mail, which constituted “in writing.” So I stuck to my guns, and the contract was revised in my favor except for one thing.
The publisher insisted on inserting the fact that the changes to the terms were not a precedent for my new agency. In other words, the changes I got could benefit no other writer. Just me.
A few years later, an agent friend of mine with a really big agency told me in confidence that the days of influential agencies was over. “We can’t get our own boilerplate any more,” he said, “except for our biggest sellers.”
What that meant is this: in the 1990s and probably before (but I wasn’t working with New York houses before, so I’m not sure), an agency would negotiate general contract terms with a publisher, and those terms would remain consistent for all of the agency’s writers, not just its bestsellers. Sure, the bestsellers got more money and escalators and other perks. But the things that were in every contract, from the discounts to the warranties to basket-accounting practices, would be the same even for the lowliest of writers.
But, apparently, no longer.
By the way, that agent, whom I had known for 20 years at that point, was answering a question for me. I was thinking of getting a new agent (yet again) and I asked him what his super-famous really big agency could do for me that a smaller agent couldn’t. Maybe because he’d had a few drinks, maybe because he is a very savvy man who has a finger on the pulse of publishing’s future, maybe because we were friends, he told me that he couldn’t do as much for his writers as he could have ten years before.
Clout counted for less and less in this business, he said. And since his business was all about clout, he was quite morose about it.
Then he told me stories about canceled contracts and misfired deals, stories like the ones I just told you, only these had happened to big name writers—writers with more clout than I ever had, more clout than that poor textbook writer could ever hope to have had. And the agent said he could do nothing about it.
Now, honestly, I’m not that shocked that publishers take advantage of writers. Writers and publishers enter into a business relationship, and business relationships can be adversarial. Personalities factor in, but so do the structure of companies. The smaller the company, the more likely it is to be on less solid ground financially, but the more likely it is to be a friendly place to work with.
Writers have always (usually?) been unarmed as they went into these business relationships with publishers. The writers would hire advocates to take care of them, to handle the adversarial part. Early on in my career, I hired an agent not just because I believed the agent knew more about publishing and publishing contracts than I did (and at the time, he did), but also to stand up for me when the time came, to fight for my needs and wants, to be my advocate.
Slowly, over time, agents stopped advocating for writers, and instead, started advocating for their agencies. Again, I noted the change, but believed it was only a few agencies, working on the Hollywood model. In fact, the agencies that pioneered this behavior came from Hollywood, and then branched into publishing as a side business.
I knew that many agents had forgotten who they worked for when the agent started refusing to mail books that “weren’t good enough” and refused to do things in their clients’ best interest because it “might hurt our other clients.” I always felt those were firing offenses, but a lot of writers put up with those things and more. And, it seemed, the behavior got worse, which I blamed mostly on the cutbacks in publishing. Those cutbacks forced a lot of laid-off editors into agenting, and editors didn’t know business nor did they know how to keep their hands off a perfectly fine manuscript.
But I was wrong.
I hadn’t realized until a few months ago that the adversarial relationship that sometimes existed between writer and publisher had moved into the agent/author relationship.
My first glimmer came when I looked at a former student’s agency agreement. Honestly, when the student contacted me to look over a contract clause, I thought the clause was in a publishing contract—at least that’s how it read in the e-mail. Then I saw the entire agreement and realized who had issued it.
The agreement called for the agent to have the right to represent the writer’s work in all forms for the duration of the copyright of the work, even if the relationship between the agent and the writer was terminated. I blinked, damn near swallowed my tongue, and told the writer not to sign the agreement. Even though the agency was a reputable one, this clause was horrible.
Too late, though. The writer had signed the agreement a year before I looked at it, and something had happened between writer and agent to call that clause into question.
For the life of me, I couldn’t get that silly writer to understand that she was now trying to close the barn door after the horses had been turned into dog meat and eaten.
I made a mental note: avoid that agency. Tell writers not to sign the agency agreement, and if the agency didn’t like it, then the writers should not be repped by the agency. That simple.
I thought it a blip.
Until another student sent me an agreement from an agency that used to represent me. And there it was: that horrible clause. Again. When I had been with that agency, I hadn’t signed any agreement at all. One didn’t exist.
Then—blink, blink—a “negotiated” agreement with a Hollywood producer, negotiated by a writer friend’s agent. Fortunately, the writer asked Dean and me to look over this agreement the moment it arrived.
This agreement—I kid you not—gave the producer all rights in that particular story for $1. In perpetuity and in the entire universe. The worst contract I had ever seen.
I actually compared the agent’s address with the producer’s address, thinking they were the same person. They were not. But if I had to bet on it, I would wager that the “agent” was in some kind of collusion with that producer. I know of at least one agent who, fortunately, is no longer in business, who would sell books to Hollywood for his writers, get them a nice fat purchase price, and get an even fatter producing fee (plus points) for himself. He made a percentage off his writer, and then a six-to-seven-figure fee over and above it as producer. And everyone said he was reputable. Yeah, right.
Agency agreements have become as draconian as publishing contracts—maybe even more so. Because one agency agreement I saw stated that the agency could negotiate for the writer, that the writer could not reasonably refuse the terms negotiated, nor could the writer easily terminate the agreement. Worse, that agreement, in a very sneaky manner, gave the agent the power of attorney over any contract negotiated for that writer.
I just about fell out of my chair.
What happened to the agent being a writer’s advocate? What happened to hiring a consultant to negotiate for the writer?
If a writer’s relationship with a publisher is adversarial, and the person the writer hires has decided to take it upon himself to put his company ahead of the writer’s business, then who speaks for the writer?
Next weekend, Dean is teaching a course called “How To Be Your Own Literary Agent.” We’ve been outlining the course at lunches, figuring out what writers needed.
Dean made me laugh out loud in the middle of one of our planning lunches when he put it succinctly.
He said, “What do writers need? They need to grow a pair.”
He’s exactly right.
In this new digital age, content is king. There are a million venues for selling things, but all those venues need something to sell. The people who provide the content are the ones who, theoretically, should be in charge of this world.
Only too often, content providers are “artists” — be they musicians, photographers, or writers. And “artists” were raised to be mathematically challenged, not to bother their pretty little heads about business, to trust someone else to take care of them.
And for a while, someone else did. Agents might have skimmed a bit off the top, but they knew their jobs as advocates for their writers. My first two agents contacted me, selling their services to me, telling me how they could help my business which—they were clear—was my business, and they would simply help me make more money at it.
Three years ago, when I was talking to my agent friend, several other agents approached me, all of them telling me how, with their help, I could be a better writer so I could get better contracts.
So…I should take lessons from someone who never wrote anything, was afraid to market half my stuff, because they “knew” better? Seriously? Better than a multiaward winning, bestselling writer, with more than 90 novels to her name? I actually laughed at one of those agents and asked those questions. The agent looked surly and said, “You’re not doing that well.” Which pissed me off. I said, “You don’t have any clients who are doing any better.”
And I walked away.
I would have loved to have seen that agent’s agency agreement. I bet it tried to hang onto a piece of every literary property the agent sold. Because I know for a fact that agent isn’t an author’s advocate. I’m not sure there are many advocates left.
As Dean and I worked on this class, I told Dean we had mistitled it. It should be called “The Writer’s Self Defense Class.” We might actually use that title next year. Because everyone wants a piece of the content provider without paying the provider a dime—or, at least, not paying the provider more than a single dollar.
The real slap on the head came for me as I was negotiating two of my own contracts this past month. In one case, the other party was giving me everything I asked for, which was so unusual, I couldn’t believe it. In another, the other party wanted to change terms of an existing contract, and was trying sneaky methods of doing so.
I was comfortable with the sneak. I expected it. I was geared up for it. The nice one made me nervous. I kept wondering when the other shoe would drop.
I wondered how I had become so cynical, and I realized it had come from all the sideways stuff. The advocates who no longer advocate, the royalty statements controversy that we’ve been dealing with in previous weeks, the changes in negotiated contracts. (I’ve had to send back two different contracts at the signature stage because the other party had snuck in changes after the negotiations were (theoretically) done.)
I’ve been doing the contractual stuff now for thirty years. Not well, in the early years, but better than most writers do now. I’m defended. Hell, I’m a fortified castle on a remote island. Most writers, on the other hand, haven’t got a clue about what faces them across a negotiating table. And those writers may have “advocates” sitting beside them who are stealing money from the writers’ pockets before the negotiation even begins.
It terrifies me. It really does. It’s one of the reasons I write these columns. But it’s one thing for me to tell writers to learn business; it’s another for them to actually do it.
I’m afraid if they don’t, however, they’re going to be screwed sideways, upside down, and backwards. Because they are such innocents they often don’t realize that the “advocates” they’ve hired are bigger dangers than the companies they’re defending against.
And given a lot of publishing practices these days, that’s saying something.
Dean often says that he’s not anti-agent or anti-publisher, he’s anti-stupid writer. But the tricks that these “advocates” and publishers are pulling are things that would trip up intelligent writers as well. One of the contracts I read recently was subtle in its nastiness. You had to understand things that I had no idea even existed when I was reading those textbook contracts all those years ago.
The business is changing as we have discussed in these posts for some time now. And as the business changes, publishers and agents are running scared. They’re not sure where they will fit in. So they’re trying to reserve as big a piece of the content pie as they possibly can for themselves—at the expense of the content creators. The writers.
One other thing: In the past three weeks, I have gotten—unbidden—two contract addendums from two of my publishers. Both of these addendums wanted to change the e-publishing rights clauses in my contract. Both of these addendums were awful for me as a writer. One even gave the publisher the right to condense, change, alter, or add to my existing work.
I refused to sign both. I later talked to several of my friends who had gotten similar addendums. My friends’ advocates, to a person, had recommended taking the deal. I have no idea why. It harmed the writer terribly.
One of those publishers actually told me I shouldn’t refuse because other writers are doing it. I wanted to sound like every parent on the planet: Just because the other kids jump off a cliff doesn’t mean I have to.
But apparently a lot of writers are—with the help of people they’re paying to advise them.
And I find that astounding.
“The Business Rusch: Advocates, Addendums, and Sneaks, oh my!” copyright 2011 by Kristine Kathryn Rusch.