The Business Rusch: The Agent Clause (Deal Breakers 2012)

For the past several weeks, this blog has focused on deal breakers in modern publishing contracts. Novelists Inc. asked me to update my article on deal breakers for their conference binder from last year, and wow, oh, wow have things changed in these short twelve months.

I used that article as a jumping off point for these blogs. I turned the article in last week, keeping it as short as I could. The article was still twice the length that it had been a year ago. Only a few things remained the same. The rest changed.

And I added some deal breaker clauses, including this one. Weirdly enough, it’s your agent clause in your publishing contract.

Yes, I’m still talking about the contract you make with your publisher. But in that twenty-plus page document, there is a clause about your agent. That’s the clause I’m referring to.

Why has this clause become a deal breaker? Lawsuits, my friend.

And the deal breaker, in this instance, is not between you and your publisher, it’s between you and your agent.

Please remember, I am not a lawyer and I do not have legal training. I just have years of experience with publishing contracts. What follows (and what you will find in the previous blogs on this topic if you search them out) is my opinion only.  In no way does it constitute legal advice.

First, a little history.

Once upon a time, publishers paid the writer directly and the writer paid the agent. Which is, frankly, how it should be. After all, the agent is someone you hired, not someone the publisher hired.

However, some brainy publisher got the idea that if Agent A has 20 clients with the publishing house, it’s easier to write one check to Agent A than it is to write 20 checks to the writers. Agents liked this because that meant they didn’t have to browbeat their writers to get the commission.

Paying the agent directly is not legal without the writer’s permission. So some lawyer came up with the way to make paying the agent directly legal. That was the origin of the agent clause, which was, in reality, a payment clause. Checks sent to Agent A (at such-and-so address) counted as payment to Writer Z, and thus fulfilled the contract. That’s all. If the writer signed the contract, then the clause became activated, and all payments went to Agent A.

This is why agent clauses exist in publishing contracts. Not to bind you to your agent, but to allow your agent to be the recipient of your money. It is a simple, legal device that you could do in any contract. You could send the money directly to your mother in your mother’s name if you wish, so long as this method of payment is stipulated in the contract.

Also, there’s a phrase in that clause which says that both parties to the contract (the publisher and writer) will consider payment made in this way to fulfill the terms of the contract.

Again, that’s all. If you want your money to go to your agent first, that’s all your agent clause in your publishing contract should say.  If, indeed, you believe that sending all your money to a third party is a good idea in the first place. We’ll get to that below.

Here’s the problem with the agent clause as I just described it. If you fire Agent A, you need an addendum to the contract, so that payment would go either directly to you or to Agent B, who is now your representative.

And that’s another problem with the agent clause, from the point of view of an agent. You can easily screw Agent A out of money that you probably owe him.

I’m sure lots of writers did just that, especially if they fired Agent A for cause. If the writer and Agent A now hate each other, then neither are very motivated to pay the other. The writer in particular no longer wants to give Agent A a percentage of a work, even if Agent A did all his work expecting long-term commission on that work.

So what did Agent A (and his friends) do to prevent such things from happening? Well, he started adding words like “irrevocable” to the agent clause which, of course, he negotiated.

Then things went crazy. Agents started adding all kinds of things to the agent clause which are in the agent’s interest, and no one else’s. The agent would add things like “the agent represents the author on this book, and all foreign sales of this book” and so on. Then the agents all seemed to come up with “agency coupled with an interest.”

Now, the agent v clause, which you find in most agent-negotiated publishing contracts, now says things like:

The Author hereby appoints Agent A irrevocably as the Agent in all matters pertaining to or arising from this Agreement…Such Agent is hereby fully empowered to act on behalf of the Author in all matters in any way arising out of this Agreement…All sums of money due to the Author under this Agreement shall be paid to and in the name of said Agent…The Author does also irrevocably assign and transfer to Agent A, as an agency coupled with an interest, and Agent A shall retain a sum equal to fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement.”

Authors blithely sign this stuff. I refused, and cut things like “full empowered” and “agency coupled with an interest” from my contracts. I authorized payment only. A few of my former agents balked; I fired them.

Why? First of all, I’m not assigning anyone anything “irrevocably”—certainly not someone I can fire for cause. Especially if my money goes through their account first. I will not “fully empower” anyone to act for me. (Some agents go so far as demanding legal power of attorney—which is something you should never give anyone. What that means is that they then have the right to be you in all legal matters. No. Do not give legal power of attorney to anyone without good cause—like you’re dying and need someone to handle your accounts (and even then, it might not be a good idea).)

Finally let’s discuss “agency coupled with an interest.” What that means is this: You are giving the agent ownership in your novel. Ownership. They now have a 15% ownership of your book.

In theory.

Technically, a two-party contract cannot hold one party to third-party terms. In other words, if you and Publisher K have a contract, it cannot bind you to do things for Agent A, because Agent A did not sign the contract.

Still, what’s to stop Agent A from trying this? A lot of agents are doing it, and backing it up with a separate agent-writer contract, which I’ll touch on in a moment. Without that agent-writer contract, these clauses should not hold up in court. (But see the comments section on last week’s post about the ways that things that “should not hold up in court” often do hold up after all, depending on the jurisdiction the court is in.)

In the past year, two examples held up my non-lawyerly reading of these clauses. First, the Ralph Vicinanza agency tried to sue its writers under this clause. Ralph, who ran the business for decades, died suddenly, leaving his agency to heirs who had no idea how the publishing industry worked. However, they wanted their money, and they threatened to sue authors who wouldn’t work with them.

A lot of negotiation happened, and a lot of behind-the-scenes maneuvering, which took nearly a year before everyone settled out of court. Writers lost entire books in time trying to hang onto their own income and reserve the right to hire an agent who actually knew what he was doing, instead of some relatives who had no idea what an agent was before their family member died.

That’s but one example. The other, more important one, is an actual court case: Peter Lampack Agency v. Grimes et.al.

In 1996, Martha Grimes hired the Peter Lampack Agency (PLA) to represent her works. For those of you who don’t know, she’s a New York Times bestseller and a Grand Master in the mystery field.

In 2007, she fired PLA. At the time, she had a four-book contract with Penguin. That contract had an option on a book called The Black Cat. Grimes eventually sold The Black Cat to Penguin through another agent, and PLA sued, claiming—under the agency clause—that it had rights to any work deriving from that original contract.

Long story short, the case made it to New York court. The court decided that the agency clause only entitled PLA a 15% interest in the four-books named in the original contract, not in The Black Cat.

A victory, yes, but a minor one. Because Grimes fired PLA, and still has to deal with them to this day on books still in print. Also, this victory—so far—only applies in the State of New York. It hasn’t been tested elsewhere.

Finally, after this ruling, most major agencies required their writers to sign an agreement with the agency stating that the writer will follow all the terms of an agency clause in publishing contracts. Signing the agent-author agreement and the agent clause in a contract could possibly close the legal loophole used in the Grimes case. I say “could possibly” because, to my knowledge, no one so far has tested this in court.

Those agent-author agreements are pernicious.  I dealt with the agreements in depth last year in this blog post. I suggest you read it now, particularly if you’ve signed an agency agreement.

Let me give you just one example, however. It’s an important one. Through the agent-author agreement and with the agent clause, some major agencies actually take 15% ownership in everything a writer writes, even if that writer never sells the product through the agency at all. This is becoming more and more common.

But let’s assume your agent is a fairly nice person who works for a large agency. Let’s assume that the agency insists on an agent-author agreement, and let’s assume that the agent-author agreement looks fairly benign.

By fairly benign, I mean that the agent-author agreement details the relationship—what you will do, what the agent will do, and even lets you cancel the agreement for any reason with thirty days notice. However, the agreement has one clause in it, one little tiny clause that says something like this:

The Writer agrees that she will abide by the agent clause negotiated by Agent in all of her publishing contracts.

Sounds fine, right? It’s not. Because…let’s assume the agent clause in your publishing contract has this standard little phrase at the end: The provisions of this paragraph shall survive the termination of this Agreement.

This means you’re screwed. You have twice signed legal documents (and maybe more than twice) that says you will continue to pay your agent money on this particular agreement in perpetuity. The first time you signed, it was in the agent-author agreement (stating you will abide by the agent clause), and the second time was when you signed the publishing contract itself.

This is nasty, nasty stuff, folks, and lots of writers have signed it. Hundreds, maybe thousands, of writers have done so.

Don’t you do it.

In fact, if your agent asks you to do so, run from that agent, leave that agency, and don’t look back.

Why? Even if your agent is a really nice person, here’s what these clauses tell you. They tell you that your agent does not work for you. Your agent is interested in his own business and his own profits at the expense of yours.

Here’s what you should remember from this deal breaker’s section: Never sign an agreement with your agent without letting your intellectual property attorney look over the agreement first and negotiate it for you.

Better yet, let your attorney negotiate all of your contracts and avoid the agent clause altogether. In fact, pay your agent out of your own pocket. Your money should never go to someone else first.

If you have an agent, pay them yourself. If they don’t trust you to do so, then why should you trust them? If they get pissy, have an agency clause that you (or your attorney) write, that splits payments—15% directly to the agent and 85% to you.

Of course, if you have an attorney negotiate your contracts, and you’re dealing with the publisher yourself, why do you have an agent in the first place? Maybe it’s time to get rid of this vestige of mid-20th century publishing and branch out on your own.

And remember this: If you end up hating your agent, if you want to fire your agent, you’ll need to hire an attorney to do so. Why not hire an attorney up front and save yourself both the time and the hassle.

Publishing is changing. It’s time you change as well.

You all have been great during this long section on deal breakers, particularly in the comments sections. Attorneys have weighed in on the various topics and so have other writers citing their own experiences. Please look at all of that.

Thank you too for maintaining the donations during this period. Usually donations go down when I do straight business posts, and the decline this time wasn’t as severe as usual. As I’ve mentioned before, this blog has to remain self-sustaining for me to continue writing it. I make much more at my fiction writing than I do at my nonfiction writing, so I’m kinda sorta doing this for the love (and my own edification).

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“The Business Rusch: “The Agent Clause,” copyright © 2012 by Kristine Kathryn Rusch.

 

 

 

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44 Comments

  1. As it happens, I completely ceased working with literary agents 5-6 years ago, which is probably the single best business decision I’ve ever made. Since then, I retain a literary lawyer to negotiate my contracts, and to advise me on or to handle legal matters or problems that arise in my career. And you know what? Almost all of the problems I’ve needed my attorney for have involved cleaning up messes made by my former literary agents, or messes which my former literary agents couldn’t be bothered to clean up despite having collected 15% of my earnings to “handle the business” in those deals.

    Anyhow, further to Kris’ topic about the problems with that agency clause:

    On Monday, 3 days ago, I finished the lengthy process of terminating a couple of old publishing contracts and getting all rights reverted to me. Because of the agency clauses in those contracts, it was not until that day, Monday, that I was FINALLY able to remove control of my earnings for those titles from the hands of a literary agent whom I fired many years ago.

    Because of the agency clauses in those contracts and the agent’s consistent and repeated refusal to consent to split-payments (the standard procedure wherein the publisher would pay my 85% directly to me and send -only- the agent’s 15% to the agent), my income was paid directly by the publisher to an unlicensed, unsupervised individual who =insisted= on retaining control of =my= money for YEARS after I terminated our professional association.

    (Did I find the agent’s insistence on having access to =my= money both stressful and suspicious? Well, now that you mention it, YES. Especially when I read the agent’s speciously fictional account of events in response to the complaints I filed with AAR, RWA, and NINC against the agent for mishandling my fiscal business. Did I find the publisher’s repeated insistence on continuing to send -my- money to the agent instead of to me crazy-making? Um, YEAH. Even better, when I couldn’t squeeze my royalty statements out of the agent and would ask the publisher to send me a copy, they’d refuse, claiming that under the terms of the contract (which they were interpreting very peculiarly in this regard), they could ONLY report my sales and earnings to the agent, not to ME. So you can perhaps readily imagine how stressful and frustrating I found this situation, especially given that tens of thousands of dollars were involved, and that it went on for YEARS.)

    Believe me, I turned over every rock in the quarry looking for a solution to this problem over the years (including consulting four different lawyers). But only eventual termination of those publishing contracts (3 days ago) put an end to this mess at long last–and only because I was, at least, never stupid enough to sign anything that extended the agent’s “rights” behind the life of those contracts–which life has now ended. (YAY!!!!!!!!!)

    Kris is right, this is NOT a problem you want to experience. So don’t open the door to it by signing agency clauses and agreements which give someone else irrevocable control of your money on a publishing deal. Learn from my mistake and don’t let this happen to you. Happily, in my case, it’s finally OVER! But it took YEARS.

    BTW, one solution, often practiced, is to get written into all your agency clauses, as well as your agency agreement, that all payments will be AUTOMATICALLY SPLIT (85% to you, 15% to the agent) upon termination fo your association with the agent/agency. This is a simple and auomatic clause which could have saved a LOT of writers (me, for one; a bunch fo Vicananza clients, too) a LOT of stress, grief, and legal bills if we’d gotten it written into everything we ever signed with our agents or with regard TO our agents. I HIGHLY recommend getting it–and if you don’t have it, then start working RIGHT NOW on getting it added to everything as an amendment. If you agent balks, then find out WHY s/he wants to control YOUR money after termination of the association.

    Reply
    • Last year, I had a serious problem with a large agency, one that made continual mistakes on the money they sent me after I fired them. I complained and complained and complained. Then I received money designated for another writer mixed in with my money, in a check. I hit the roof. But I wrote a firm letter, reminding them of their fiduciary responsibilities and since they hadn’t responded to any of my previous complaints, telling them that if we didn’t come to some kind of terms, I would have no choice but to audit them. Wowza, did they kick me to the curb fast. They wrote letters to every publisher discharging the agent clause, along with my letters of the same, and informing everyone to send everything to me. Took about two weeks. Don’t you wonder what’s going on in their agency with the book-keeping? (I suspect, Laura, you know which agency this is.) One of the many blog topics I need to write about Real Soon Now.

      Reply
      • I think I do know. I’m going to guess it’s an agency which boasts on its website about its (wait for it!) efficient and effective accounting department. I found this darkly amusing, given how many of my royalty statements that agency lost.

        Reply
      • Wow, Kris and Laura.

        I really wish you would name names, so we new writers would definitively know who to stay away from. Of course, until or unless things change drastically, I see less than no need for a literary agent and so won’t seek one. But still…

        Yeah, I know. Liability and what not. Wish that wasn’t a concern. These people REALLY need to be outed.

        *sigh*

        Reply
        • Not doing it, Michael. I don’t want to be sued. Not that I’m wrong or anything, but I really don’t want to go to court to show that I’m right. So, do a little research on your own. It’s not hard to find out who a writer’s former agents are. But neither of us are going to name names.

          Reply
        • Michael, you speak as if individual agents or agencies were the problem. That is not the case.

          I have said this until I am blue in the face, and evidently I still need to keep on saying it: Individial agents and agencies are not the problem. The existing agent-author business model is that problem. The virtually universal practice among writers of turning all one’s professional fiscal and legal matters over to someone with no licensing, no fiscal training or qualifications, legal education or expertise, no oversight or accountability is the problem. The widespread practice among writers of turning over all one’s business to someone who is, in far too many instances, =bad at business=, is the problem. The common custom among writers of regarding someone as an “expert” because they printed up business cards that said “agent” after being laid off by a publishing house is the problem.

          You speak about naming names as if, by avoiding the agents that Kris and I specifically worked with, a writer would be shielded from these problems. That is a complete misconception of everything I’ve ever read on Kris’ blog, as well as a complete misconception of everything -I’ve- ever said in speeches, articles, or discussions, private or public, about this topic.

          The problems I encountered with my literary agents are in widespread practice, as are the agent problems Kris has often described here. Naming names (apart from ensuring that Kris and I might well wind up beggaring ourselves to fight nuisance lawsuits from agents trying to protect their public profiles) would be as effective as plucking out gray hairs–it doesn’t address the problem or alter the spread of gray.

          One of my four former agents is retired now. The other three -rarely- take on clients, and two of them don’t even look at a query that doesn’t come from a bestseller. So avoiding THEM is not what’s going to help people. Recogizing the problems in the BUSINESS MODEL in which they were/are able to pull the sh*t they pull, and choosing not to cooperate with those fiscally and legally idiotic practices is what will help people–not learning the names of agents whom there’s very, very, very little chance of hiring.

          Do =I= have an INDIVIDUAL beef with my various former literary agents? Yes. You BET I do. They cost me a LOT of money, time, career development, stress, etc. Of COURSE I have an individual beef with them. But that is not the point. The problems in the business model–the problems which epitomized and enabled the damaging practices in my agency associations–are the point. Not which specific individuals happened to be the ones who exercised those problems and practices on me. Or on Kris.

          Reply
          • I’m with you, Laura. Preaching to the choir, here. :)

            Regarding naming names, I guess it’s just the vicious side of me looking forward to the luscious image of scoundrels being pilloried in the public square. But yeah I can totally see the potential down-side of doing that, however enjoyable it may be in the short term. :)

            Right. Back to productive work. Always a pleasure. :)

    • That’s wonderful news, Laura. I’ve been following your updates on that particular ugly mess with the fired agency for a few years now. I hope you go out and celebrate!!!

      Reply
      • LM, since this month is also A Milestone Birthday, as well as the month I FINALLY got that agent out of my life many years after terminating the association…

        I am celebrating by buying a house. :)

        Was hoping to close by end-August, but now think it’ll be shortly after WorldCon instead (i.e. early Sept).

        Reply
        • Laura, congrats on all of it–including the milestone birthday. I crossed that divide two years ago, and it’s better over here. :-) And congrats on the house!

          Reply
        • Oooooo, a house. Wonderful choice! Congratulations!

          Reply
  2. Kris writes: “Better yet, let your attorney negotiate all of your contracts and avoid the agent clause altogether. ”

    A handy moment to remind everyone that tehre is a directry of literary lawyers on my website, along with a couple of essays about when, why, and how to work with an attorney in publishing matters.

    http://sff.net/people/laresnick/About%20Writing/Writers%20Resource.htm#Lawyers

    Note, this link may be moving this year, since I need to overhaul the whle website. But you can always find it by googling me and then going to the Writers Resource Page.

    Reply
    • Thanks. We can host the list on one of our sites in the interim if you want.

      Reply
  3. In France, we have a thing named imprescriptibility of the rights of the author (imprescribilité du droit d’auteur), or moral right. I think that has an importance in court in my country. It means that morally, the author own his rights forever, and no one can deprive him entirely.

    I know, I know. “Moral” and “business” are seldom in adequacy.

    But even with that, what my tiny experience with a publisher tells me (yes I have been published, for one book in 2009), is that restrictive, or worse, egregious clauses of a contract are often a matter of intimidation between the publisher (or in this case, the agent), and the author.

    I would stongly recommend avoiding dealing with persons that use intimidation in business.

    It’s my opinion, but what you describe in these deal breakers 2012 strengten me in that opinion.

    Reply
    • Sorry : “to avoid dealing with persons that use intimidation”.

      Reply
    • Because the United States finally signed onto the Berne Copyright Convention, we have moral rights as well, Alan. Most countries in the world do. Moral rights are confusing and I didn’t want to go into them here. What most agents/publishers ask is that the writer waive her moral rights in those contracts. In fact, many publishers are asking for that as a matter of course. That’s another Major deal breaker, but I’m not comfortable talking about that one. So if attorneys want to weigh in, I’d appreciate it. (By the way, the biggest offender–the place that wants them waived the most–has been England, at least in my experience.) Very upsetting that publishers now feel they need this.

      Reply
      • Kris,

        This isn’t right. Authors of literary works do not have moral rights in the US, at least not ones that are not protected by trademark.

        First, the Berne Convention is not self-executing, and that means that signing the Berne Convention doesn’t actually give anyone any additional rights unless Congress signs implementing legislation.

        At this point, Congress has written legislation that provides for a limited set of moral rights for visual artists, but there’s no parallel for literary works.

        There are a number of ways that we finagled some aspects of trademark and some court decisions (some of which, heh, have been subsequently overruled) to say that we had enough to cover our “moral rights” asses, but the end result is that artists in the US do not have anything like the moral rights that exist in Europe. We’re effectively in violation of our obligations under the Berne Convention. Just as we’re in violation of a bunch of our obligations under other treaties that we’ve signed.

        So no, authors do not have moral rights in the US, and we shouldn’t act as if we do.

        Reply
        • And that is why I don’t write about moral rights. Because I know it’s a tricky area in the U.S., and I know I don’t know. I had no idea we were in violation of our obligations under Berne. [sigh]

          Thank you very much for the clarification!

          Reply
          • Kris, as a UK author I’d be interested in a discussion of moral rights, since I had my arm twisted to include a waiver in my most recent contract… I got it changed to “partial waiver”, and that the publisher needs to consult me before making any deals that require this, but I still feel slightly uneasy… should I?

            It makes a bit more sense now that I know US authors do not have moral rights, so presumably US publishers don’t like UK authors to have them? Would refusing to waive my moral rights have effectively stopped my publisher from making a US deal?

            (PS. As far as I know they haven’t made a US deal for these books yet!)

          • A lawyer is better off answering these questions than I am, Katherine. I truly get confused about moral rights for the reasons that Thomas E lists and more. I never ever ever ever waive any part of my moral rights. We do have moral rights in the US, just not like you do in England, and just because you sell here doesn’t mean you waive them. So I have no idea what your publisher is thinking. I walk away from contracts that want to waive any part of my moral rights (if I can’t get that changed, of course).

            It’s a truly international world and more and more contracts cover World Rights, etc, so that’s why you need to be cautious here. You need to be thinking on a global scale, not a regional one.

            I’d love it if some attorneys weigh in here.

        • “We’re effectively in violation of our obligations under the Berne Convention”

          So we’re clear…did the Senate ratify the treaty?

          Reply
          • It’s more complicated than that, Michael. The Berne Convention is a series of different agreements. Every few years there is a round of talks, and they update the convention to (generally) include more rights.

            For example, Thailand is a Berne convention member but at the 1908 level – which confers very limited protections (the ones that were agreed in the original treaty).

            America ratified the Berne convention in 1988, but it ratified it at the 1972 level.

            There have been a number of rounds since then that AFAIK (and I am not an expert in American law) have been implemented by executive order and not by ratification in the senate.

            Some moral rights existed in the 1972 version, but they are limited compared to more recent versions.

            So you get very strong protections from moral rights in, say, France, very weak ones in Thailand, and so on.

            As I said, complicated.

  4. I think I would rather hire a lawyer and pay him his fee to do the job and be done with it rather than deal with an agent who is as it seems will always be taking.
    Those contracts are too nasty for me!

    Reply
  5. As always, an invaluable post, Kris. I used to have a great agent, and still think highly of him, but I hope to never have one again. I agree that the agency model is a relic of mid-20th century publishing, along with the idea that self-publishing equals failure. :)

    Thanks again for an enlightening post!

    Reply
  6. Every industry has its middle men, people or companies who make it easier or swifter to get raw materials to a manufacturer or finished goods to a retailer or end consumer. A lot of middle men are good at what they do and make a very tidy living doing it. They also all realize that their slot in a chain of value is tenuous unless they provide real value to someone.

    However, whenever I look and see a middle man ‘put on airs’ and try to assert that he or she is more important than the producer or the end customer, I get nervous and angry. I see it with health care insurers who’ve burrowed themselves so deeply into our labyrinth that they are now more important than sick people or doctors to our system of health care (at least as far as health care dollars seem to be concerned).

    I see this ‘putting on airs’, at least as strongly, with publishers and book distributors and book stores. As many people have remarked, the two important aspects of reading are the group that produces the stories and those who consume them (writers and readers). Everyone else exists because they provided value for someone at one time or another. One should be nervous when the value chains shift. No story teller needs someone called a publisher any longer or a book distributor or even a bricks-and-mortar or online bookstore, if one is willing to indulge in ‘hand selling.’ (The real value providers for modern story tellers seem to be various software vendors, like for word processing and image editing, and ISPs, for Internet connectivity.)

    In this value chain, there is little if any need for a literary agent…unless the storytellers let the agent piggyback along. Like through a toxic contract. No wonder the literary agents are proposing such documents. If they can’t provide value to someone any longer, at least they can secure their livelihood.

    In any professional relationship, try to figure out the value chain. Try to figure out how to make what you want to make with as few trusted partners as possible. It’s well past time to see that literary agents detract value from what a story teller does. (Impose restrictions on what the storyteller can and can’t do, throw up difficulties in getting paid, tie one in to a particular paper-centric mode of publishing, etc.)

    You want to be a writer with a Quasimodo-sized lump riding around on your shoulder? I’m pretty sure I don’t.

    Reply
    • I used to work in healthcare on the business/administrative side, and I wholeheartedly agree with your assessment. The interesting thing in that business, as you implied, is that the insurance and administrative side of the house has completely forgotten that they are middlemen. I remember a meeting once where I, as a high-level (but in some ways painfully naive) project manager, asked a bunch of admin managers what it is they thought they did. They ALL said, to a (wo)man, “provide care to sick people.’ I corrected them by saying, “Actually no. What you do is provide barriers between doctors and patients and charge people to go through them.” I might as well have punched each one of them in the face. They absolutely, completely forgot that they actually did little to nothing to actually heal sick people. They live inside this myth that each of them provides care, that because they work in the health care industry, that somehow makes them health care providers. Most of them genuinely believe that THEY are the ones who are making people healthy, instead of creating a bureaucratic nightmare for sick people to wade through to get to the actual caregivers.

      I see a LOT of parallels in the mentality in the publishing industry and that of the health care industry in the United States. Both are extremely antiquated and inefficient systems in a lot of ways, and completely out of step with the advances in accounting, management, data and even tech that have occurred in other areas of the business world. But I had to laugh when you pointed out the biggest parallel…which is the middlemen started thinking they WERE the producers of the product. I was often appalled that whenever budget cuts came in health care, it was always to the production side of the house (nurses, doctors, facilities) and almost never to the insurance or admin side. They’ve completely forgotten what their role in the production chain is…and yes, it really seems very much to me that agents and publishers have forgotten that as well.

      Reply
  7. I just want to add a quick response to your mention about the popularity of your legal posts. I look forward to them and appreciate you writing them.

    Carolyn

    Reply
    • Thank you, Carolyn. I know a lot of people appreciate them. I suspect they finish, then run off to find their contracts rather than comment or donate. :-)

      Reply
  8. Recently, in a conversation with a writer friend, she complimented me on my stories then informed me “You should really start subbing to agents, you’re good enough.”

    I almost spewed my drink all over to the computer screen. There is no way I would do that, and it took me a few min to regain my composure to politely inform her that I don’t WANT an agent. She was floored.

    It is issues like these detailed in your posts here, the bad experiences by other writer friends of mine, that have made me wary of going anywhere near an agent.

    It astonishes me that there are still writers who write to ‘bag an agent’ even though there is overwhelming evidence it is a dying profession.

    I think I suspected agents weren’t all that, when three I used to follow on livejournal all threw in the towel (about 3 years ago) and had a career change.

    If I ever deal with a pubbing company to market and distribute my work I will, most definitely get an IP Lawyer. I can’t say thank you enough to you, Dean, and the frequent comentors here on your blog. Reading over the posts, the comments, have given the tools of knowledge to take my writing career in hand.

    Reply
    • You’re welcome, Necia. Like you, I sometimes forget how prevalent the myth still is. When Dean and I went to Willamette Writers this weekend to receive a lifetime achievement award, dozens of new writers came up to us, excited that they’d had a good talk with an agent. [sigh] We weren’t there very long, and frankly, I didn’t want to burst anyone’s bubble, so I didn’t say anything. Neither did Dean. But we were shocked at how 1990s it all seemed and how everyone was playing by that very old script. [double sigh]

      Reply
    • Necia,

      The evidence is only overwhelming to those who see it, and not even all of them accept it. Meanwhile, “Gotta have an agent!” has had decades to establish itself in the communal mind. It has become an “Everybody knows…”, and those are horrendously difficult to challenge. I have been in situations where people politely stop listening to me as soon as I mention Dean or Kris, because people would rather reject the messengers than accept that their preconceptions might be wrong.

      Reply
      • As I mentioned before, I left a list because “everyone” on that list knew what I was talking about without reading it, of course. And that’s not fair. A number of people had read my stuff, and agreed, but weren’t saying anything. I was given opinions I didn’t know I had, and folks were certain I had said it, even though I never had. [sigh] It is easier to blame the messenger than it is to make changes in your life. I’ve known that for years. And thank heavens I was a journalist, because there I learned that if you’re not getting a response (good or bad) you’re not making a difference.

        Reply
  9. I was having drinks with a writer friend recently, talking about agents, and I urged him to get rid of his long-time agent who had had one manuscript for as long as ten years without selling it. My friend was hoping for change. I felt like a dirty rat for airing my suggestion.

    I said, “Fire the agent. He’s actually virtually fired you, except that he doesn’t have to have that conversation with you in order to dump you, whereas you have have that conversation with him if you want to be free of him.”

    I pointed out the economics of the situation. This agent might have forty clients. Of them, four or five (maybe, at best) are best sellers, guaranteeing 100,000 copy print runs and good sell-throughs. They can write maybe two books a year a piece, average. The rest sell considerably fewer copies, and write fewer titles.

    Since the death of Borders (a loss of 30% of book orders) and the reduction of book departments at mass merchandisers like Walmart and CostCo (a loss of 50% of their earlier orders), and reduced orders at Barnes & Noble (I have no figures) the print run of a best selling author’s new novel has been halved.

    Because an agent only gets paid when a publisher cuts a check, and since print runs dictate advances, my friend’s agent is now getting paid half the money that he would have received several years ago for a contract for the same best selling author.

    Because the agent is making 50% of the money he used to make, while selling the same number of contracts he used to sell, he is up shit creek, financially.

    This agent simply can’t afford to trot all over town with a two-year-old manuscript from a midlist client whose career has stalled out. The math isn’t there.

    That said, the shifts agents are resorting to in order to keep their doors open should be examined carefully by every client and prospective client.

    Reply
    • Excellent analysis, Jennifer.

      An agent friend recently told me that he went to law school, but changed his mind about becoming a lawyer. He’s agented for more than twenty years. He added, “It seemed like a better decision at the time to become an agent–and back then, it was.” He sounded sad.

      Reply
  10. When a business model can’t continue as it has, it won’t.

    Reply
  11. One of the twitter feeds I follow is for Writer’s Digest, and one or two times a day, there’s a tweet about an agent looking for clients. And every time I see one, I think, “They’re sounding desperate…”

    Craog

    Reply
    • They were always desperate. It was a tough business to get traction in during the good old days. It’s impossible now. I empathize, but my job is to help writers, and right now, having an agent hurts them. It doesn’t help them.

      Reply
  12. I can speak from personal experience. My agent left the agency and after some bad experiences with him, I didn’t want to go. My agency clause was with the agency, not him, so he couldn’t take my contract with him without permission (which I refused.)

    Then the owner of the agency had a stroke and the word went out that someone had taken over as interim president. When I called I learned that the agency was going to be sold.

    During the nailbiring weeks of what would happen with my contract, I learned to read an agency clause very very closely and I understaood the possible pitfalls (I’m a lawyer licensed to practice in California, so I was able to figure out the wording even though contracts are not my area of practice.)

    Long story: The agency released me. A few letters to the publisher got the agency clause removed from my contract. Double good luck: This happened before the second half of my advance was paid, so my check was much larger than the first had been.

    I learned my lesson. I found Laura Resnick’s list of literary attorneys, researched them, and picked the one who seemed like the best match. I’m on my own now, and much happier.

    Kris, I wish all writers would listen to you. When you sign a contract, you are not imagining all the things that can go wrong. But agents leave, owners of agencies have strokes, agencies get sold.

    Signing a contract is like saying “I do” at the altar. At that moment, you’re not imagining the promises will fall apart. Actually, the analogy is perfect because marriage is also a contract. They go bad. A bad agency clause can cause years of headache.

    Reply
  13. I typed this on a small keyboard with two fingers, and just noticed are lots of errors. Please excuse!

    Reply
  14. I’ve been subbing to agents for fifteen years…have quite the list over that period. After reading this thread, I have to research submitting directly to publishers.

    Anyone know of particular good lists or references to publishers who accept submissions?

    Thanks

    Reply
    • All publishers accept submissions. They don’t dare not to. They have to look. (They don’t want to miss the next Harry Potter.) Check out Dean Wesley Smith’s blog, Killing The Sacred Cows of Publishing. Start with this one, but look at the TOC as well. Good luck!

      Reply
  15. R. Mac Wheeler, I was at a large international writing conference and several editors in major publishing houses said, “We say only unagented submissions, but really we look at everything.”

    I have had no trouble getting editors in the major publishing houses to read my work.

    I have worked with 8 agents over the past 20 years, and while once in a while they do sell something, I am convinced that Kris and Dean know what they are talking about. Agents are a trap for the unwary. They basically work for publishing houses as outsourced slush readers, serving to keep editors’ inboxes from becoming jammed. They work for themselves first, and publishing houses second, while being paid by the writer.

    Reply

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