Kristine Kathryn Rusch » Business Rusch, featured, free nonfiction, On Writing » The Business Rusch: Advocates, Addendums, and Sneaks, oh my!
The Business Rusch: Advocates, Addendums, and Sneaks, oh my!
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.
Filed under: Business Rusch, featured, free nonfiction, On Writing · Tags: advocates, Agents, Business Rusch, contracts, e-rights, Hollywood rights, Publishers, publishing, writing
150 Responses to "The Business Rusch: Advocates, Addendums, and Sneaks, oh my!"
Thanks, Chris & Ramon.
Great post, Kris. I recently read a contract for an author that gave the publisher all rights, for eternity, with no guarantee of publication, with no advance whatsoever. The contract, which I thought of as perhaps the most evil I’ve ever seen, came from a religious publisher.
Over the past few years, I’ve seen this slide, too–where the agent now seems to be more in cahoots with the publisher–or at the best, only in it or himself–than an advocate for the author.
Dave
Hi, Kris! Please delete the first comment — I hit some key that kicked me out of the comment space, mailed off the comment, and left me back at your homepage. So — just writing to say that yes, I think you guys ARE making lots of friends, that I’m grateful for the chance to learn about these things, and that I think they should be taught in every MFA in Creative Writing course, because, honestly, other folks’ ignorance of the realities of this business eventually will weaken all of us. And, as I said in the first draft, when (mostly young) folks are paying a lot for the degree, they need some practical knowledge as well.
Again, thanks for these blogs!
Terrific post. I sometimes have a problem discriminating in publishing, esp. with agents, whether I’m seeing incompetence, laziness or potential criminality. Unfortunately, I see a lot of behavior that could be any and all.
It’s end of the year exams time, so as a teacher I have been very busy and got here late. Terrific post, Kris, as always, and interesting comments too.
But as I was reading over everything something occurred to me: why is everyone so shocked? Has there ever been a time in history when big business and unscrupulous go-betweens haven’t tried to screw artists for everything they could get? It’s always been a world full of sharks, jackals, hyenas, and other assorted ne’er-do-wells in the guise of angels of light. I was listening to the Beatles’ “Abbey Road” on the way home tonight; they’re a good example. When they started out, dazzled and struck dumb by their own success, they signed terrible contracts which gave away the copyrights to their songs and left them a pittance of mere pennies for each album sale. So many of those who are regarded now as some of the greatest artists of all time died in poverty and disgrace, either because no one appreciated the value of their work while they were alive, or the work was deemed of value and therefore exploited by others who pocketed the fortune, or the artists were popular and esteemed but had no clue as to how to make it pay. It’s an old, old story I would say – and I would go further to say that those artists throughout history who actually did manage to not only write (or paint or whatever) well, build a following, and support themselves in comfort have always been in the minority.
That doesn’t, however, make it less unfair that artists – any artists – are unscrupulously exploited, and brings into stark relief the value of what you and Dean do for all of us. Thanks again. Keep it up. we need you.
Excellent article. Thank you so much.
Are there any sample contracts online that would give writers an idea of what’s good and what’s bad?
Kris,
Thank you for bringing this stuff to light. I’ve been reading your and Dean’s blogs for a few months now, trying to educate myself about publishing. I’ve pretty much given up trying to talk to other newbies about this issue unless I can tell they’ll be open to it.
On a writers’ group I belong to (online) one of the writers was complaining that her agent was “making” her rewrite her manuscript over and over. I said if that were my agent I would be concerned. She replied that she loved this agent and someday I’d find the right agent for me. I never said I wanted an agent!! But that’s the assumption in this group. Another writer, who has published one book & calls herself the business savvy writer on the strength of having worked in a (non-publishing)marketing department, told me that everyone needs an agent now and that Heinlein’s Rules don’t apply anymore. Hoo, boy. I didn’t reply to that one because I knew I couldn’t do it in a professional manner.
This is a group that has been most supportive of me & other members in other areas of writing, so I continue to belong. However I make no more effort to talk about business. I did mention I was self-publishing, and got resounding silence in reply. Maybe it’s selfish, but I resented the way I was patted on the head and told to shut up — or simply ignored. So, I say let them get burned if they don’t want to listen to the advice of their elders.
Just for clarification: elders does not mean me. Or anyone who just has one or two or five books out. I’m consistently amazed at the way newbie writers take advice (major, career-shaping advice) from other newbie writers.
After I posted the above, I started thinking maybe I hadn’t expressed myself clearly enough. When I said “let them get burned” I didn’t mean no-one should be giving advice. I’m more grateful than I can say for your and Dean’s advice. What I meant was, I personally am not going to keep banging my head against a wall of willful indifference and even hostility to help people who don’t want to be helped. But then I have no real advice to give them except — listen to Kris and Dean (or Heinlein). If they don’t want to hear that, there’s nothing more I can do.
Kris – first of all, thanks for the article. Well written and thought-provoking as usual.
I don’t think this should come as a surprise to anyone because it makes perfect sense.
Yes, I know people who like to think the agent will ‘take care’ of them, is ‘on their side’, etc. etc. And this is not a slam against agents, the ones I’ve meant all seem like straight-forward honest people. But the truth of the matter is we (writers) ARE NOT THEIR CUSTOMERS!!!
Agents need writers to provide product for them to sell to publishers. But there are lots of writers and relatively few publishers.
Think of it like a grocery store. Writers are the farmers, we provide the product. And the agents act as the store, a means of getting the product to the consumer (publishers).
We like to say that the reader is the consumer. But, in traditional publishing, they are not. The publisher was. The reader could only consume what the publisher printed. (Think of the reader as your kids who could only eat what you put on their plates for dinner.)
Getting back to the agent angle – of course they have to please *their* consumer (the publisher). That’s business.
Mark –
Puts me in mind of something an old bluesman said to me once:
“As far as the record industry is concerned, a successful artist *generates* a fortune. He doesn’t *make* a fortune.”
Of course, from the artist’s POV, having hundreds of people get rich off your work *while you do not* isn’t success–it’s a con. Approbation and fame are fabulous, but they don’t pay the rent–and if you have fame and no cash through your own naivate, people (fans, friends, and colleagues alike) are often remarkably unsympathetic to your plight.
The Beatles learned that the hard way–so do most artists (well, of the ones who bother to learn it at all).
-Dan
There are sample contracts, Sandy. Just Google them. Then buy the Mark Levine book mentioned earlier in the thread, and compare.
Thanks, Tori. And you’re exactly right: beating your head against a wall hurts.
I like helping writers who want the help. The others drive me nuts. Seriously nuts.
Barbara, good points all. The problem that I’m having here is more serious: the agents are trying to take ownership of a writer’s work. And the writers are so desperate, they sign agreements with the agent that give the agent ownership in one form or another. I find that appalling.
John, as to why everyone is surprised: Here’s my guess. It’s one thing to know that thieves exist. It’s another to discover they’re robbing not just your house but every house in the neighborhood.
I learned the hard way on some of this stuff, Dan. And I don’t regret it at all. I just want others to learn from my mistakes. Great quote from that old bluesman.
And thanks everyone for all the wonderful comments. Now I must go back to my regular writing office….
Kris —
I’ve learned a lot of this the hard way too–and been lucky enough to meet people along the way whose hard lessons I’m still learning from (hopefully to avoid having to learn them the hard way myself). One thing’s for sure about making first-degree boneheaded mistakes–if you’re paying attention you never have to learn the same lesson twice.
-Dan
Kris, great post as always! I’ve heard many tales of good experiences with IP lawyers. What makes an IP lawyer safer to use than an agent? I suspect it’s because lawyers are hired on a one-time fee basis, where agents are dipping into the writer’s long-term revenue stream and come to think of part of it as THEIRS. Anyway, interested in your opinion . . .
@Mary Aldridge,
My counter would be twofold:
1) Why would you ever expect anything practical from a FINE ARTS degree? Now granted, as an Engineering major, I have a certain bias against Liberal Arts and Fine Arts degrees. But really, you’re smoking crack here. For one thing, the professors probably don’t have the knowledge base to do what you suggest. For another thing, why would they? As “artists”, they’re predisposed to think anything as bourgeois as practical business sensibility to be beneath them. They’re too good for that, you see.
2) I cannot fathom why anyone would get a MFA anyway. Seriously, in light of all the advise I’ve seen from Dean, Kris, and numerous others, what does an MFA teach you about writing that you couldn’t learn on your own just by doing it anyway? Holy God, talk about a poor investment. If you’re going to spend the time and money on Grad School, get an MBA or a JD or SOMETHING that at least has a chance of getting you a decent return on investment. But that’s just my (not so) humble opinion.
Kris,
*facepalm*
Actually, on second thought…
*head desk*
If Dean’s sacred cows posts, and the comments to them, hadn’t already convinced me to avoid agents and just retain a good IP lawyer, this would have sealed the deal. Thanks, as always, for the insights.
Kris, I agree it’s appalling that desperate writers sign agreements giving their agent ownership of their work (in whatever form). I just don’t think it’s surprising since it makes sense (from a ‘business’ POV).
What’s really sad is that many writers will continue signing bad contracts and, at the same time, be grateful for the opportunity to do so.
Kris, I’m looking forward to that workshop next week. Seriously. And I’m reading The Copyright Handbook. Knowledge is power! And I have much to learn. Even though there’s much work to do, I find my future in publishing very exciting. I’m energized and motivated. Thank you for another great installment.
That’s what I always try for, Dan. I don’t want to make the same mistake more than once. I hate it when I fail at that.
Steve, IP lawyers are officers of the court. They have codes of ethics and conduct that they must abide by legally as part of their profession. They will lose their standing in the bar if they don’t, for example. There is no regulation for agents. None. And I keep wondering how they can give legal advice because most of them aren’t lawyers. I’m very clear that I can’t give legal advice. Agents aren’t clear about that at all–and are, in fact, often giving legal advice, even if they only have a BA in English.
Michael, Rob, you’re welcome.
Yeah, Barbara. (sigh) I agree.
This reminds me of the last big grab that I saw agents make, maybe in the mid-eighties? Agents suddenly jacked their rates up from 10% to 15%, with no additional services even discussed; and some of them started using phrases — “agent of record” and “agency coupled with interest” — in their agency contracts and in publishing contracts they “negotiated”, meaning that so long as your book continued earning anything, the agent who *first sold it* had a right to a slice of those earnings, just as if the agent had co-authored your book with you.
This was at about the same time that publishers began demanding all media rights “now in existence or yet to be invented, anywhere in the universe” — remember that? Not that they planned to do anything with such rights. They just didn’t want you, the writer, selling them and maybe making some $ that they didn’t get to skim first. Around that time theater directors were attempting to claim personal ownership of the *stage directions* to the debut production of your stage-play, in perpetuity (the first thing actors do is cross out the playwrite’s printed stage directions so that they can pencil in whatever that production ends up with). I heard rumors from my painter sister of similar B.S. in the art gallery world. That’s how crazy it got: a feeding frenzy around any and all profits that a creative person’s work might generate, now or ever.
This shit cropped up in publishing when advances ballooned because corporate conglomerates thought of book publishing as a high-profit-generating entertainment machine, like movies, that they could get rich on. It became, briefly, worth an agent’s time to grab for more of an author’s share.
Now that e-publishing is challenging the existence of agents and big publishers alike, and also promising seriously big earnings by ebooks, the reaction is the same: grab on, set your jaw, and cling like a lamprey, sucking out the financial returns on a book for as long as there’s juice left. It’s weird, but suddenly Ayn Rand’s ravings start making a tiny bit of sense: only it’s not the government that’s the enemy. It’s agents and big paper publishers — whose actions will, of course, push more and more authors into going into business with smaller, more realistic publishers directly, or self-publishing instead.
Excellent post, Suzy. I remember that grab from 10% to 15% and the writers lost. Because too many caved. Just like they did on everything else. Now we have a lot more options. I just hope writers take them.
Thanks Kris for the article it has come at an appropriate time for me.
I have a massive dilemma myself I need to sort through. Only yesterday I was contacted by two very well-known agents, one in the UK and one in the US, because of my success as an Indie writer. To be honest, I haven’t slept and just don’t know what to do!
Mel
I used to be unhappy that many of my books had gone out of print, and my agent(s) couldn’t be bothered to try to get them reprinted. Now I thank my lucky stars — over time, through reversion of rights letters, all rights have reverted to *me*, and now I get a chance to make the most of them.
I know. Isn’t that great, Suzy? I feel the same way.
Honestly, Mel, I know this is every writer’s dream to have an agent, but in this new world of publishing, an agent will not help you. An agent will most likely hurt you. If you need to negotiate print deals, hire an IP attorney. Contact the publishers yourself. I checked out your blog and you’re selling very, very well on your indie books. These agents want a piece of you and a large percentage of what you’re earning. If I were you, I’d stay away from all of that.
But it’s your choice and your decision. If you do hire one of these people, make sure you research them thoroughly. Even more important, do not sign any agent agreements. And finally, figure out what you really want from an agent that you can’t get on your own or with an IP attorney. The IP attorney can handle Hollywood and overseas negotiations for you. So…think long and hard about this. Because really, they’re not interested in you as much as how much they can make off of you. They want a percentage of your income. It’s not about you. It’s about them.
Good luck.
Thanks so much for responding so quickly, Kris. Will seriously take your insightful words onboard.
I’ve heard of some of the terms you mention and you know, I’m not sure if I learned about them through someone else or through yours and Dean’s posts!
Haven’t got my fingers on actual contracts yet, but I am so eager to get involved and find out how this works on the ground level. Work work!
Steve Mohan asked: “What makes an IP lawyer safer to use than an agent?”
Steve, I worked with literary agents (a business model which I quit using 4 years ago) and with a literary lawyer. The two functions are quite different, as are the standards of their professions.
Since a literary agent gets 15% of the advance, 15% of the commission, and 20% of foreign deals, they are, for one thing, EXPENSIVE. My legal fees, for having a literary lawyer negotiate my contractual clauses, cost me THOUSANDS of dollars LESS on every book I write than my agency commissions used to cost me. Moreover, all money from the publisher comes directly to –me- as an unagented writer. (I pay my lawyer her fees when she bills me.) Whereas an agented writer’s money, the vast majority of the time, goes to the AGENT, who then pays the writer. Additionally, an agent handles the writer’s money without any effective oversight, licensing, or external standards or supervision. Thus, problems arise.
Moreover, an agent’s functions are broad and varied. Go to http://www.ninc.com/ and download the free PDF sample issue there of NINK, with the column I wrote for the December issue where I talk about this in a piece titled “The Santa Paradigm.” The services an agent offers (at least on the masthead, if not necessarily in reality) cover a wide range of business, sales, and creative functions. By contrast, a lawyer’s functions are very, very specific; my literary lawyer negotiates my contracts and advises me on legal matters. My lawyer and I do not discuss my writing, my career, my editors, whether I should submit a book, whether I should write a book, how much I should be paid, what the market is doing, etc. My lawyer’s functions are restricted to contracts and legal matters. (In that respect, we DO, for example, discuss trends in publishing contracts.)
A lawyer has three years of specialized education, passes the Bar, and is licensed by the state to practice—which license can be revoked for misconduct. My lawyer is a trained, licensed specialist in the specific areas about which I consult her or which I pay her to handle. An agent, by contrast, has no formal training or education in agenting (there IS no form of formal or standardized training for agents), no licensing, no supervisory body of any kind. There are NO QUALIFICATIONS OF ANY KIND to become a literary agent. And, short of proving embezzlement to the satisfaction of a judge (by which time the money is all gone, anyhow), no recourse whatsoever against sloppy, bad, incompetent, or even wholly dishonest agenting practices. (Forget about the AAR. It is completely toothless.)
Working with an agent involves a mutual commitment. Ergo, it’s (often) hard to hire one. It’s also hard, messy, and complicated to fire one. And the relatinoship itself is often complicated. Working with a lawyer can become a smooth and comfortable relationship, but it very simple, and it does NOT involve commitment. If I decide I want to try a different lawyer the next time I have a legal problem or a contract to negotiate, all I do is contact another lawyer. I don’t have to explain this to my previous lawyer, or notify her, or fire her, or sign anything, or apologize, or explain my decision to my next lawyer, etc. In much the way that I would not have to explain myself to anyone (let alone fire anyone, or CONTINUE paying money/commission to a PREVIOUS consultant for years to come–which you do with an agenht working on commission) if I decided to switch accountants.
Oh, forgot to say something VERY important–
Another key difference is that I have found my contracts are MUCH, MUCH better now that I use a lawyer. For several key reasons.
1. Lawyers specialize in contracts and legal language. The publishing house has lawyers with such expertise who WROTE the contracts and who advise, at their end, on the negotiations. When you, the writer, enter that negotiation with someone who is not ALSO a lawyer with that same level of expertise about contracts, contract law, publishing law, and legal language, you are at a disadvantage. I am no longer at that disadvantage since I started using a lawyer to negotiate my contracts.
2. Agents work on commission. Lawyers work on an hourly basis. An agent does not make ONE PENNY MORE for sitting at the negotiation table (so to speak) even an extra 20 minutes, let alone the extra days or weeks it might take to get every clause well-negotiated. For an agent, that’s just time spent (on something which, moreover, they’re not expert at–and, in many cases, not even particularly competent at) without earning income from that time. So they are often not motivated to be thorough and exacting in negotiations. By contrast, pursueing a negotiation until every i is dotted and every t is crossed and every advantage that can be secured for the writer in the contract has been advantaged… is exactly what a lawyer is PAID to do. That may sound expensive… but refer to my previous post; getting my contracts negotiated this thoroughly is actually costing me THOUSANDS of dollars LESS on every book I write than paying agency commissions was costing me. (Moreover, at any house, a laborious process is only necessary for the first negotiation. On your option deals, you’re starting–or should be–with the contract you’ve ALREADY negotiatded in previous deals. So negotiations are shorter and less expensive on subsequent deals with the same house. I recently negotiated an option deal, via my lawyer, wherein my legal fee was about 5% of what it had been on the first deal, because there was very, very little for her to do this time around, since we were using a contract we liked very much–the one we’d negotiated LAST time.)
3. The lawyer has no conflict of interest in the negotiation. It is very clear whose interests the lawyer is ethically obliged to serve in the negotiation: the client PAYING the hourly fee to the lawyer. (Moreover, if there IS a potential conflict of interest, a lawyer is required to decline to handle the deal, or to step down. Failure to do so can result in loss of license to practice.) With no conflict of interest, the lawyer is willing to stand firm in a tough negotiation. (Being paid an hourly fee to keep standing there is another reason the lawyer does so.) By contrast, agents are often RIDDLED with conflicts of interest in negotiations. They’ve got other clients at the house, they’ve got relationships at the house which they want to protect, etc… and this means they can be less than wholly committed to ONLY serving the interests of the writer in question during a negotiation. (Some familiar cues about this are when your agent uses phrases like, “Publishers don’t like it when…” and “Publishers don’t really want to…” and “They won’t agree to that…”, of course, the standby classic, “We’ll never get that, so I refuse to ask for it.”)
4. In my own experience of working with four agents, negotiations were always opaque. I never knew what was going on until I got the final contract. At which point, agents typically balked when I pointed out problems in it. By contrast, my experience of working with a literary lawyer is that negotiations are completely transparent. I am (at my lawyer’s insistence) copied on ALL correspondence and discussion in the negotiation. If there’s a phone call, then my lawyer writes a quick summary/memo of it in which I and the other party are both cc’d. I know everything that’s happening every step of the way, and my lawyer discusses each step with me, never accepting or rejecting anything on my behalf without FIRST getting my approval.
This is one of the best ‘Writer Beware’-articles I’ve ever read–and I keep an eye out for them. Thank you very much for sharing your experiences in the field of changing publishing, and especially for pointing out the new pitfalls.
Organize? Writers and artisans of all stripes ought to benefit from not going it alone, even if it’s just sharing information and experience.
This problem isn’t limited to writers. For example it’s fairly common for computer/technical contractors to sign contracts with non-compete clauses, even though in my state (California) non-compete clauses are unenforceable.
It has always baffled me why the basics of accounting, contract law, personal finance are not taught in High Schools. It’s almost guaranteed that the student will need that knowledge when they go into the workforce. Yet instead we teach them about the Teapot Dome scandal, Animal Farm and how to speak french, almost all of which goes over the students’ head. You’d almost have assume there is an intention to have people fail in life.
Thanks for the answer, Kris! This is really good stuff! I hope you are getting lots of traffic!
I’m curious about what you said about foreign rights, Kris. How are you selling them without an agent? I’ve heard a few people say that their foreign rights got better after they started working without an agent, but in those cases it usually ended up being because their publisher was selling their foreign rights for them, which doesn’t help indie authors.
Kris – Another excellent post. I’ve blogged about it.
As an attorney who has negotiated many contracts (almost all outside the world of publishing), one of the most common mistakes people make is to assume that, once the contract is signed, the relationship will proceed in a way that will please everyone.
Whenever you read a potential contract, don’t assume that everything will go just fine. If the relationship with your publisher and agent is filled with bliss, nobody will ever look at the contract after it’s signed. The contract is for when something goes wrong.
Everybody loves one another when the contract is signed, but, as a student of human behavior, I will assure you that love sometimes fades and dies. Love can even turn to hate. As a useful exercise, read your publisher/agent contract with this question in your mind: “How does this work if I hate my publisher and my agent has stopped speaking to me?”
Because all things change, also read your contract with this question in your mind: “How does this work if my publisher gets purchased by a Chinese steel company and my agent is fired and replaced with somebody who is six months out of Wellesley and believes anime is the next big thing?”
An additional response to the question about why hiring an IP attorney is different than hiring an agent – An agent makes all of his money by making publishing contracts with a relatively small group of publishers. No publishing contract = no money.
An IP attorney earns her money from a wide range of clients and services. She doesn’t require signed contracts between publishers and authors that generate royalty revenue for her financial survival.
Additionally, to make specific what has been generally discussed, the IP attorney has an ethical obligation to represent her client’s interests and only her client’s interests. If she fails to do so, the client can file a complaint with the state bar association. I can assure you that an attorney takes the threat of a bar complaint very seriously. The bar can take away her license to practice law.
There is no equivalent to a bar association for an agent.
Keep up your great work.
While the following appears aimed primarily at non-profits, perhaps they might be of help in identifying lawyers who are sympathetic to starving artists/writers who need legal advice?
http://www.starvingartistslaw.com/help/volunteer%20lawyers.htm
Also, what about joining the Authors Guild if you’re serious about a traditional publishing contract?
http://www.authorsguild.org/services/legal_services/contract_reviews.html
(You get their book about contracts for the membership fee of $90.)
Disclaimer: I don’t belong. Others may have experience of the Authors Guild and may wish to share for the benefit of all?
You’re welcome, Mel. Before you sign with anyone just be sure you know what you want from the arrangement. And also see if that person can do more for you than you can do yourself with a bit of moxy and an IP attorney.
Thanks for the excellent posts, Laura. Great stuff. Thanks for the detailed explanations. I’m sure many folks don’t know this stuff.
Thanks, Ryan & Jakob.
Alan, some writers organizations exist that actually have a bit of teeth, from the Authors Guild to Ninc to RWA. And I agree. Sharing information is key.
Oh, boy, am I getting traffic, Steve. Now let’s hope they also look at my fiction books or pick up the Freelancer’s Guide.
Livia, I never (rarely) sold foreign rights to my publisher. It got harder the last few years to avoid that because of e-rights. But I retained them, so my agent(s) sold them. And my agents would negotiate a contract in which they remained on the contract and the contract was open-ended. Now I get contracts for a specific print run, with an option for renewal each time the publisher wants to print more books. We have to renegotiate which means I can say no to a worse deal and yes to a better one, if I want to.
As for marketing overseas, you can find foreign publishers on Publishers Marketplace and market to them yourself. I don’t usually bother. The foreign publishers come to me. Which is–I might add-not really that much different from what happened with my agent(s) who, except for one, never actively marketed my foreign rights. So I’m getting the same number of deals, better deals, and making the money directly rather than waiting for someone to pay me.
And since all of the agents who embezzled from me did so on foreign rights, I solved that problem as well. By the way, the latest embezzler was the agent in a particular country that my US agent had partnered with. My US agent refused to believe that this was happening. I didn’t care. I solved it by threatening to go directly to the publisher and asking why they never paid me. Suddenly I got paid–in full–the next day. And that agent, and the US agency, got fired.
Thanks for all of that, Passive Guy. I hope you folks are reading these comments because they’re excellent–both his and Laura’s in particular.
I’ve always approached contracts from a worst case scenario point of view. Exactly what you said above, with one caveat. Often the worst case scenario is complete success. What happens if this book becomes a massive bestseller? What happens if the movie is the blockbuster of the season?
I recently saw a publishing contract from a reputable house in which the worst case scenario was a bestseller. Because the writer, who got a five-figure advance, wouldn’t see a dime of that bestselling money. Ever. And the writer signed the contract even after Dean & I explained this. The writer was afraid to lose the publishing deal. (sigh)
Again, thanks for the post. Good stuff.
LP, I am not a joiner, so I don’t belong, but I’ve heard good things about the service the Author’s Guild provides. I’m not familiar with the other link. But if someone else is…? Comments, anyone? Thanks for the links.
Passive Guy, just went and read your blog post about my blog post (how incestuous can we get here)? And it’s excellent.
GO READ THIS POST, PEOPLE! It’s all about negotiating contracts. Wonderful, wonderful stuff. Here’s the link: http://www.thepassivevoice.com/05/2011/dont-sign-dumb-contracts/
I really love the title: “Don’t Sign Dumb Contracts.” Yep. Don’t.
Passive Guy, EXCELLENT post! And this piece of advice you give sums up so well exactly WHY the writer should be exacting about the contract negotiation (in a way that my literary lawyer is, but that my agents were not):
“read your publisher/agent contract with this question in your mind: “How does this work if I hate my publisher and my agent has stopped speaking to me?”…. [or]: “How does this work if my publisher gets purchased by a Chinese steel company and my agent is fired and replaced with somebody who is six months out of Wellesley and believes anime is the next big thing?”
Because situations like that arise regularly over the course of a writing career. So you’d better make sure your contract was based on solid negotiation, not a smile and a prayer.
A few years ago, I had the good fortune of reading a book just after having had several dodgy experiences with well-respected agents–they weren’t exactly unpleasant, but there were things I was running into that didn’t pass the sniff test. For example, the agents all presented themselves as a business partner rather than an outside sales force or negotiator (which, from my time in the movie business and as a small businessman, is exactly what I understood the role of agent to be).
I was also told by three of them–all of whom I know to be nice, decent folks in their off-hours–that while my writing was well above professional par, it didn’t quite jive with the zeitgeist, and that if I wanted them to be able to sell it, they’d require some rewrites. And, without exception, the rewrites insisted upon were ones that would bring me in line with the agent’s “brand,” as it were–and utterly ruin the appeal that my stories have for my core audience.
After one of these, I was reminded of some shark experiences I had in Hollywood–except the agent in question wasn’t a shark in any traditional sense. After two, I started to wonder if publishing was some sort of strange world with its own rules. After three, I began to wonder why the hell anyone got an agent in the first place.
About this time, I read Freakanomics (a must read), wherein there’s a chapter about Real Estate Agents and how their incentive structure pushes them to act contrary to the best interest of their clients in predictable, quantifiable ways. And as I read it, I recognized *exactly* the pattern of incentives and contrary-to-client-interest behaviors I’d been seeing with the agents I was dancing with (and that I’d heard about through other author friends). If you’re an author (or any businessperson who hires on contractors), you must read that chapter. After reading it, I walked around for several days, completely stunned that nobody seemed to have cottoned on to the con game inherent in the agent arrangement (not that all agents in all fields are con-artists, but the lack of transparency and thought about incentives turns the arrangement into a con game by default).
—
On the other matter, dovetailing with Passive Guy’s post on contracts (that one deserves a few thousand links of its own), I’ve run into a one-level-more-basic obstruction with newbies just learning contracts. I faced it early on–let’s call it a “mindset problem.”
George Carlin summed this mindset problem when he said “Businessmen, when they negotiate a contract, assume that the other guy is out to fuck them over as hard as possible, so it’s their job to fuck him harder, faster, and deeper.” Newbies, when faced with contracts, often believe that Carlin’s satirical jibe is the literal truth, and they don’t like it.
I did this when I was a newbie with contracts, lo these many years ago. Why such an adversarial document to cement an agreement between parties who, presumably, want to enter a mutually beneficial arrangement? I got straightened out by a producer I worked for, who (in deference to my naiveté) was able to explain the reason WHY contracts must be explicit, pedantic, and nitpicky especially between friends/acquaintances/people seeking mutual benefit.
Since then, I’ve seen a lot of newbies fall into the same mental trap I did, so last year I did a blog post on why contracts must be written the way they are. In case it’ll help anyone here who’s experiencing some offputtedness by the cynicism on display, you can find it here:
http://jdsawyer.net/2010/05/25/principles-of-contracts-the-third-cousins-rule
For what it’s worth
-Dan
It has always baffled me why the basics of accounting, contract law, personal finance are not taught in High Schools
It was at my high school, but as an option instead of band or whatever, and mainly aimed at kids who planned to join the workforce after highschool rather than going on to college. I am very, very thankful that due to a registration screw up when I started high school I ended up with that track (typing, bookkeeping, business law and business finance, over four years) instead of music. Infinitely more useful.
[...] Kristine Kathryn Rusch on what agents and agencies want to do to writers these days. Via Sea Wasp. “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.” [...]
Great post, Kris. I think my eyebrows flew off my face when I read all of the shenanigans you’ve listed going on. Talk about a rights grab to an insane, suicidal degree, and even more amazingly, writers may sign up for it in droves, like lemmings.
Surprisingly enough, many people in small businesses that aren’t in publishing/writing *also* sign plenty of contracts “as-is” instead of trying to negotiate. When I, (not a lawyer, thank goodness!) get them to tweak some of the terms, I either get a horrified “but what if they say no?” or they get surprised when the other party is fully willing and ready to negotiate.
I second (third?) the wish that lower education taught useful subjects like money management, basic contracts, business skills, and so on!