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.

 

 

 

150 responses to “The Business Rusch: Advocates, Addendums, and Sneaks, oh my!”

  1. 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.

  2. Ryan Viergutz says:

    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!

  3. Mel Comley says:

    Thanks so much for responding so quickly, Kris. Will seriously take your insightful words onboard.

    • Kris says:

      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.

  4. Suzy Charnas says:

    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.

  5. Mel Comley says:

    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

    • Kris says:

      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.

  6. Suzy Charnas says:

    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.

    • Kris says:

      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.

  7. Rob Vagle says:

    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.

  8. Barbara Ellisor says:

    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.

  9. @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.

  10. Steven Mohan says:

    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 . . .

  11. 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 says:

      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.

  12. 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

    • Kris says:

      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….

  13. Barbara Ellisor says:

    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.

  14. Tori Minard says:

    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 says:

      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.

  15. Tori Minard says:

    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.

  16. Sandy says:

    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 says:

      There are sample contracts, Sandy. Just Google them. Then buy the Mark Levine book mentioned earlier in the thread, and compare.

  17. John Walters says:

    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.

  18. Mark Terry says:

    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.

  19. Mary Aldridge says:

    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!

  20. 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

  21. Chris York says:

    Great post, Kris. Keep reminding us that we need to be vigilant in our dealings, and READ and UNDERSTAND the contracts we sign. You have no idea how appreciated your willingness to speak up is.

    Kudos on another enlightening post!

  22. An Onny Mus says:

    Can you say the name of the publisher of the apparently-*good* contract, by any chance? Or the genre(s) that you’re having the most/least contract-slime in? Knowing if my chosen genre is more or less likely to have this sort of slime in it may make a difference in whether I decide to self-publish something I’d been hoping to get traditionally-published.

    Thank you for the warning about contracts.

    • Kris says:

      I’m about to head to my office, so can’t comment on everything here, but need to answer you, An Onny Mus. Your comment shows that you missed the point about contracts. What I get offered as an established writer will be very different from what you get offered as a new writer no matter what publishing company. You need to start reading business books and understanding how contracts work.

      All contracts have problems. All reputable companies have “bad” contracts for writers, but those are good for the company.

      A contract is a negotiating tool for two parties. The problem is that writers usually don’t understand that and won’t negotiate. Time to do your own homework on what a contract actually is–because these kind of stuff exists not just in publishing, but all over the business world. If you have an apartment, you’ve signed a lease…which is a contract. If you have a house, you signed a mortgage…which is a contract. Many of these practices happen in real estate and in financial services and, and, and…

  23. I knew it was getting bad, based on some contracts I’ve seen recently, but I didn’t realize it had gotten *that* bad.

    Some things I’ve seen/heard of in the last two weeks:

    Old-style Hollywood non-compete clauses (whereby the author agrees to not publish competing work. In one case, competing work was “in a particular genre for the period of xxx years” and, in another, “ANY work for the length of the relationship, except by special dispensation). This is so-called “Golden Age” of Hollywood stuff, where the studio appropriates the TALENT (instead of the work) as their own private asset. (It goes on in music, too–it’s the reason Prince had that unpronounceable symbol as his name for a while).

    Compulsive agency clauses (have had two publishers in the last year try to foist that one on me personally, and have seen it in other writer’s contracts as well). These have the whiff of a Spanish Prisoner, even when there’s no up-front cash being demanded.

    Very sneaky “derivative works” clauses, with the wording laid in subtly, which would give the publisher the right to turn a property into a shared world without recompense to the writer.

    Audit clauses worded so that it would be a practical impossibility to conduct an audit.

    Royalty statement clauses which conveniently forget to specify a schedule for the issuance of statements, couched in grammar intended to mislead the writer to assume that the statements will come with the payments, when in fact the contract doesn’t actually tie the two to the same schedule.

    And it goes on.
    But yow…I can’t say all that actually prepared me for some of the stuff in your post.

    Time to get a shark proof suit and go swimming.
    -Dan

    • Kris says:

      Yeowch, Dan. I’ve seen all but the last two–the audit & royalty clauses. Yikes. I’ve even seen the non-compete in the warranty, not as a separate clause.

      And yes, it’s awful out there. (sigh)

  24. Ramon says:

    As is always the case in life, patience is the key here. As stated by Dean as well as you, Kris, do the work, publish the work, hire and IP attorney and let your career build. As wild and ridiculously dangerous it is out there in the world of publishers and agents, why tiptoe on the minefield when one can just do the work themselves. But then that is like any other facet of life. The majority want to be coddled and have decisions made for them. Its almost like government dependence, in that people actually need a large body to tell them that doing this or that is wrong or right. Common sense and responsibility for oneself and one’s career is ship that writers will float upon these new waters of publishing, while the “take care of me” “artists” will continue to float on life preservers; staring nervously at the circling sharks beneath them.

  25. Kris, thank you again. I’m both surprised and not surprised that you continue to write these posts. You can’t possibly be making many friends–and I include the writers out there who want to continue believing that they can be taken care of–and I’m sure you’re getting nasty emails in private.

    I’ve heard so many writers complaining about how they’ve gotten screwed by their publishers/agents/someone else and my reaction is always the same, “Next time you’ll know better than to sign the contract, huh?” A contract is only enforceable with your signature next to the X. I never knew just how much the mantra of, “You are responsible for your own career” would assist me, and the more years that go by, the more true it becomes.

    I’m just glad I was schooled in the lessons by you and Dean before the lessons schooled me.

  26. Linda Jordan-Eichner says:

    Thank you, thank you, thank you!

  27. It’s a jungle out there and damn little has changed.

    Do your homework before you submit a manuscript to ANY publishing house/agent/editor.

  28. Whoa!! That is awful. Some of that stuff sounds like fraud to me. Thank you for bringing this to our attention.

    I wrote a blog post linking back to this article, and tweeted it. I hope this goes viral, it’s crucial for every author to see this.

  29. Geoffrey Kidd says:

    I think what you’re up against is called “vendor lock-in,” and it’s a strategy that can be practiced successfully ONLY if the vendor has control over something unique and irreplaceable, such as the source code and maintenance of your computer’s operating system. (Microsoft tax, we call it.)

    If BOTH publishers and agents are becoming increasingly irrelevant in an era when authors don’t have to work through them (cf. Spinrad and F. Paul Wilson putting their works up on Amazon), and what the Techdirt site calls “connect with fans+reason to buy” business models, it would only stand to reason that they’re running scared and trying to grab everything in the same way that a drowning person will grab their rescuer and take him down too in a panic.

    In the long run, of course, “adapt or die” is the Great Law, but remember, doing something other than panic requires long-term vision. The media and publishing conglomerates, as you observed in passing, are run by lawyers and accountants, whose event horizon is this quarter’s results. Five-ten-more years out? Worry about that later, even if later is AFTER the business has hit an iceberg.

    • Kris says:

      Great post, Geoffrey. You have it exactly. They’re losing their monopoly on distribution and the industry, and they’re getting desperate. So it’s showing up everywhere. Thanks for that.

  30. Brandon Wood says:

    My first thought was, “Those evil publishers and agents! That’s terrible what they’re doing!” My next thought was, “Well, what the hell else should they be doing?” If you sign a contract that hurts you, that’s your own damn fault. Reminds me of the recent South Park episode about the iTunes agreement. You probably won’t be turned into a humancentiPad if you sign a contract with a publisher without knowing what you’re signing, but you won’t get as much money as you could have. And that’s the crux of this, as you and Dean point out: we live in a capitalist society (hooray) and publishing companies are industries that are in it for the money. Sure, editors and people working in the publishing industry probably do really love books, but they don’t really love YOU, the writer, and want to make YOU a lot of money. They make to make their house a lot of money. And if you sign a “bad” (for you) contract, that’s your own damn fault.

    • Kris says:

      Exactly, Brandon! You got it. If you sign a bad contract, it’s your fault. Yep. That’s what I’m trying to prevent: I want people to stop signing these contracts/agreements.

  31. I’d like to think, as an educated professional and aspiring author, that I would be careful enough and smart enough to catch these things…but your examples are frightening. If nothing else it’s a good reminder to read (and understand) every line before you sign, even if you have an agent or lawyer going through it as well. You need to know what’s in it. Thanks Kristine!

  32. Hey Kris –

    Love this. Love all of it. I’ve had good agents and lousy ones, and seen very little middle ground – because the differences are largely ethical ones, and it’s a slippery slope. An agent who is not your advocate in all things supportive of your choices and decisions cannot be relied on to remain so on the issues where they seem to be.

    Too many things to respond to now – but just wanted to say I appreciate all the hard work you and Dean do in sharing this information. Thank you.

    James

    • Kris says:

      Exactly, James. I’ve had good agents move to bad agencies and then I’ve had to leave because of the agency. I’ve had good agents give up. Some just walk away. And I’m pretty sure one of my old agents (a friend) has no idea what’s in the agency agreement or that agent wouldn’t remain at the agency. The agreement comes from legal at that agency. (sigh)

  33. Thank you for speaking out on this, Kris. While we’re all in charge of our own careers, it’s good to have such a wealth of knowledge such as yourself, keeping everyone honest and speaking the truth.

    Tom

  34. Ramon says:

    I can only think to say, OH MY GOD!!!!!

    You know, I wish I had found you and Dean sooner. When I self published my first book (knew nothing about the business at all) I then started looking for and agent, and found an agency that sounded great. Was with them for six months, I believe. (this was over four years ago) God bless my wife who became suspicious when they started recommending I pay for certain services to improve my chances of attracting a publisher. She found a site called Writer Beware! I think its called. This agency was right in the list of companies to run from. I immediately terminated my relationship with them.

    Later, I was communicating via email with one of my favorite authors and stated how difficult I was finding it to acquire an agent. This guy is an international best selling author, huge in the fantasy arena. He stated simply, “I gave up on the whole agent thing a long time ago. And there it was. He smartly gave advice without giving advice, and after I read that, I started to think a lot more. Right before I was referred to you and Dean’s websites by Joshua Graham (a great guy!!!) I had a list of publishers and agents that I was thinking of querying. After all the information you and Dean have shared, I think taking my own career in my hands and using the tools we have available to us in this new world of publishing is a better idea. The more I think about it the more excited I get. And the more I think about it, the more I feel that as a beginning writer, its best to just write books and publish them, just as you and Dean have been saying. I feel things will be complete once I’ve got the scratch together to attend a couple of your classes about the business side of things. I’ve never felt comfortable with someone just telling me to sit at my desk and put my head in the clouds and be an “artist” while they take care of the dirty business work. It just never rang with me.

  35. Jamie DeBree says:

    Wow. This is…eye-opening. I’m not in the market for an agent (doing things myself), but if I was, this would scare me right back out. And now I’m scared for my writing buddies who still hold agents in high regard. I carefully read everything I put my signature on, but I know far too many people who consider it “over their heads” & just trust people to be honest (after all, that’s what they pay agents for, right?). A recipe for disaster, given your information.

    Ugh.

    I’ll forward this around…but honestly, I fear most either won’t read the whole thing, or will brush it off as “something that happens to other people”. Or just figure there’s nothing they can do, so they’ll just go along with it. Tragic, really.

    I’ll prepare to negotiate my own contracts should it eventually be necessary, with an IP attorney. Seems like that’s the only safe bet, no matter how you look at it. I’d been thinking maybe I’d need an agent if I got to the foreign rights sales point, but obviously I’m better off on my own. Thanks for helping me solidify that decision.

    • Kris says:

      Jamie, that foreign rights sale thing is the other big myth for getting an agent. Since I got rid of my agent(s), my foreign rights contracts have improved. First, I care more. Second, the agent made contracts open-ended so the agent could remain on them. The ones I’m getting now are for a limited number of books printed, with a clause to renegotiate when we hit the print number. So if the book is selling well, I’ll get a better deal. (None of my agent-negotiated foreign contracts had escalators which is what such an increase would be called in an open-ended contract.) That was surprising and headshaking.

      And, by the way, I know of at least two “reputable” agents who are using foreign rights as a license to embezzle. These agents have been sued and have lost, but the writers must sign confidentiality agreements to get their money. Which is why these agents haven’t been shut down. And no one has apparently gone after them for theft.

  36. Excellent post, Kris!
    Thank you for opening my eyes to the reality of contracts in the agent and publishing worlds.

    ~Kristine

  37. Erin says:

    Seriously? The publisher doesn’t know that “All the cool kids are doing it” is generally a red flag to run away because it’s bad for you (smoking, unprotected sex, and — evidently — signing unexpected addenda from publishers)?

    Based on Dean’s Killing the Sacred Cows posts (and comments thereto), I’d already decided to avoid using an agent. This just confirms that decision.

    On the subject of contracts, I recently picked up (but haven’t yet read) Negotiating a Book Contract by Mark L. Levine. It’s the second edition, from 2009. Would you happen to know whether it’s actually useful?

  38. Kris,

    Thank you for another excellent, eye-opening article.

    It’s astonishing some of the things that people will try and get away with. My fear is that this will all get worse as publishers continue to feel the pinch from the collapse of print, and agents decide what their role is going to be in this brave new world.

    Dave

    • Kris says:

      Dave, you’re exactly right. It’s getting worse–and will get much, much worse–as print shrinks and agents lose clout. That’s why this is becoming so very scary. (sigh)

  39. Rebecca says:

    Wow, I am so glad I’ll be attending this session! In this new world as publishers and agents are scrambling to find their place, it’s even more important for writers to become smart/smarter about their own business. It’s scary and sad that people we would hire to advocate for us would cut us off at the knees. But not all that surprising. Artists and writers have always been treated as “flakey” and it’s up to us to take command of our own careers. Too many writers bemoan the business side of writing. I find it interesting and exciting. I love the idea of taking the wheel. Even if I make mistakes, they’re my mistakes.

    Avoiding the pitfalls becomes even more complicated as time goes on. Thanks for taking your time and energy to shine a light on these challenges, Kris! We’re richer and more knowledgable because of your efforts.

  40. Thanks for putting all this out here. Very helpful. Disturbing, but there we are…

  41. Ryk E. Spoor says:

    Well, this is sad to hear. I wish you could legally name names; one way of reversing such things is public outcry and shaming. When your business is working via misinformation, “face” within the industry, and clout (monetary, face, resources needed), it’s very sensitive and vulnerable to people who kick them in that “face”. Of course, they’re also thus motivated to strike back, and someone in the business can’t necessarily afford that.

    But you’ve motivated me to read my contracts much, much more carefully, if I get any more. And make me wonder if the effort I’m expending to find an agent is wasted time. Is there a way, short of actually trying the agency, to determine if the agents are still agenting ME, or agenting themselves?

    • Kris says:

      Okay, Ryk, you asked. I think your time trying to find an agent is wasted. Find a publisher, indie publish, learn the business, and do it yourself. Good luck.

  42. Just wanted to say great post. Lots to think about.

  43. Kris,

    You’ve said a lot of things I’ve been thinking for the last year. I started up a new agent search and then put it on hold because I realized an agent might actually do me more harm than good right now. I don’t know where publishing is going, but I’ve experienced enough of what you’re talking about to want to be cautious.

    I would also like to add something to your caveat: it is not just the agency agreement that writers must beware of the “lifetime of the copyright” rights grab by the agency. The agency clause within any contract can also try to grab these rights. I had struck out the clause in my agency agreement, and then had to strike it out of the publishing contract, too.

    Ironically, we authors seem to be dazed by the reality that the gates between books and readers are down and no longer require gatekeepers who tie up our rights, question our ideas, slow us down, and take a percentage of the lifetime profit for the privilege.

    • Kris says:

      Oh, Kelly, if we get into the nitty gritty of this stuff, we’ll neep forever. You’re right about the agency agreement and the lifetime of the copyright. But, here’s the thing, you can’t put a clause in a contract that directs a third party to do something if that party doesn’t sign the contract. So technically–and remember, I’m not a lawyer–those agency clauses in publishing contracts aren’t binding. UNLESS, and here’s the rub, you signed an agency agreement guaranteeing that you would put an agency clause in your publishing contract. Then you are bound to do that and bound to abide by it. And it was in the stupid agency clause in publishing contracts that the super-big agency made its power of attorney grab after the writer signed an agency agreement guaranteeing that they’d put that clause in their publishing contract. (grrrrr) Also, courts have held that “lifetime of the copyright” is too long for a contract to cover, but that doesn’t stop it from being in contracts and publishers/agents/Hollywood trying to enforce it.

      Here’s the biggest problem for me. If it’s in the contract/agreement, then someone expects you the writer to abide by it. If you don’t, that someone will most likely take you to court. If they take you to court even if the clause does not hold up or is not valid you will lose time, energy, and attorneys fees. Even if you win, going to court will suck years from your life and your career. Better not to allow this stuff in the contract/agreement in the first place.

      Oh, and please do remember I am not an attorney here, and my comments are not legal advice. Just my opinion.

  44. Thank you for this article. Extremely interesting!!!

    Maria

  45. As a former businesswoman, now author, I suspected that some of this was going on, but I admit I’m stunned at the scope and depths.
    Kris, thanks for being courageous enough to brave the wolves and jackals in order to give us a heads-up. I, for one, will certainly be keeping my eyes open!

  46. P Dugan says:

    KKR,

    Two comments.

    1) I believe David Bowie said this. In the ’70s he allowed managers to run his business so he would be free as an artist to create. After those business managers stole all of his money, he said he had to be in charge of his business in order to be free to create. Last I heard, he is reportedly worth close to a billion dollars on paper.

    2) Once you get past the superficials, it sounds like these agents and corporate publishers are doing pretty much the same thing as a thirty-five year old man who seduces a seventeen year old girl. I.E. the person with more experience is taking advantage of those with a lot less experience. Only we call one “rape” and the other “business”.

    • Kris says:

      I didn’t know the David Bowie story. Thanks for that. And yeah, but the difference between what is done in the name of “business” and what we call rape is in the legal world: Rape is illegal. This business stuff isn’t. (sigh)

  47. Ruth Harris says:

    Katherine, this is a fantastic article. A must-read for all writers. I’m @rhzuri on twitter & have just posted a link.

    Speaking of the movie business, someone once said: “They got ways to fuck you you haven’t even thought of yet.” Can now also be applied to publishing. Writer beware!

    • Kris says:

      Writer beware indeed, Ruth. You’re right. Publishing has become just like Hollywood, which is saying something.

      And Diane, I’m with you about indie publishing. 🙂

  48. Diane says:

    I am not surprised to hear about the bad publishing contracts. I have writer friends who can not believe I receive twice as much for each indie sale compared to their published sales and they thought the contracts they signed were good! One was shocked his book sells for $25 compared to my $3.99 and I still receive more then he does for each sale, and it is his third book published by one of the big publishers. I love independence and I love indie publishing even without advances. 🙂

  49. Lovelyn says:

    Thanks for sharing this story. It makes me so angry that the writer does so much work but continues to be the lowest person on the totem pole in the publishing industry.

    • Kris says:

      You’re welcome, Lovelyn. One point, though. Writers aren’t at the bottom of the publishing industry if the writer makes money for the publisher. Bestsellers are the 500 lb gorilla. However, the other writers allow themselves to be mistreated, don’t walk away from bad deals, and say “This is the way it is,” which causes them to lose the power that they would otherwise have.

  50. Susan Shepherd says:

    Thank you so much for writing this.

    The issue you describe is one of the reasons I’m glad I did my homework (and continue to try to learn as much as possible) regarding the business of writing. There are too many places where the “oh, get an agent and you’ll be fine” meme has taken hold to the exclusion of other ways of thinking; the idea that writers should stay on their toes to avoid being scammed just doesn’t show up very often.

    And it’s scary in its prevalence. I joined an online writing forum during high school, and was fairly active on it for a long time. There were a lot of newbies, a few people who’d been published professionally, and a very few people who had sold multiple books to New York publishers, so it seemed like a good place to go for advice. After all, the people who’d had multiple books published /must/ know what they’re doing, right?

    If I’d only gone there (as opposed to multiple sites) for writing advice, I’d be focused on re-writes, trying to get an agent, and convinced there was no money in short stories. I would probably regard as gospel the idea that once an agent deigns to take a new writer on, the writer is set as long as he follows that agent’s advice, because they know the business and they know the market, and after all (because we live in a perfect world?) any agent who scammed an author wouldn’t be hired by anyone else, ever. So you can trust your agent, and shouldn’t be worried about contracts.

    It took me a while to see the cracks in this. Other sites had agent horror stories, discussions of “good” and “bad” contracts, and other signs that maybe not every writer would get star treatment. But it seemed to me that whenever I brought this up, it would get lost in the noise.

    It took me longer to realize that the people on that first forum just weren’t looking for “negative” content — they didn’t want to hear about bad agents or writers who’d had money embezzled from them — but what was worse was that they had a serious “take care of me” attitude. The concept of going agentless, of self-publishing on Kindle, of submitting a manuscript directly to an editor, was foreign to them.

    Now, I don’t mean that every single person on that forum had these views. But there were very few people, maybe one in a hundred, who acted like they had done any research on the business side of writing at all. And maybe one in five of those tried to research the business thoroughly. One guy learned enough about self-publishing on Amazon to put his work up … but it wasn’t at all clear that he had licensed the rights to the cover image he put up, or that he knew what that phrase would mean.

    If that forum is typical of the “I want to write” community, of course they’ll be taken advantage of. I’m not saying that’s a good thing, or saying “they have it coming,” but there are a heck of a lot of newbie writers who won’t spend five minutes Googling proper manuscript submission format, much less go line-by-line through a contract to make sure they know what they’re agreeing to.

    And that scares me.

    • Kris says:

      It scares me too, Susan. I do think the business savvy writer will be the one with a career in this new publishing world. The other writers will have to get day jobs. And that’ll be a change from the past. It makes me sad, though, to see writers–anyone, really–volunteering to get screwed.

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