The Business Rusch: Agents (Surviving the Transition Part 3)
The Business Rusch: Agents
(Surviving The Transition Part Three)
Kristine Kathryn Rusch
I had a dream, as recently as six months ago, that agents would help writers through this transition in publishing. I believed that agents would band together and fight to the death for the best possible terms in a contract for every writer.
If agents had done that, the e-rights clauses I talked about last week wouldn’t be in contracts. If agents had been willing to convince their clients to walk from certain book deals, we would all be benefiting from new and improved contracts from traditional publishers.
Silly me. I was thinking about agents as something that, perhaps, they never were. I wasn’t thinking about their business model, but my own.
For the past several months, I’ve been discussing the transition in publishing on my Thursday blog. A few weeks ago, I wrote a post that has garnered me a lot of attention and galvanized a lot of writers. That post, Writing Like It’s 1999, was a wake-up call for a lot of established writers, to show them that the world has changed.
I’ve followed up that post with two posts on how to survive the transition. Even though the posts are geared toward established writers, I also hope that newer writers will read them so that they’ll see the pitfalls and benefits ahead. If you haven’t read those two posts, the first a general post on surviving this transition and the second on surviving the changes in publishing houses, please do so now.
In the second post, I discussed the way that contract terms are changing and how established writers can protect themselves from those clauses. That post inspired several blog posts, including two very important blog posts on The Passive Voice, written by an attorney who no longer practices. His second post, on For Avoidance of Doubt Clause, is extremely important. It’s a sensible solution to all of the contract problems I mentioned. Please go and read both posts.
Now for my disclaimer. I’ll be talking about contracts and agreements in this post, among other things. I want you to realize that I am not a lawyer. I did not go to law school. I have no legal background whatsoever.
I am a small businesswoman who has made a point of educating herself about the legalities of her business, so that I can ask the right questions and know when to hire a lawyer to assist me—assist being the operative term—when I’m faced with legal matters.
What you’ll see in the contract stuff below is my opinion only. It is not in any way legal advice. Got that?
Okay, proceed.
Agents are a relatively new phenomenon in publishing. Agents became important in the 1940s and 1950s when New York City became too expensive for the average writer to live in. Before that, writers had to live in or near New York to thrive in the publishing marketplace. The writers actually had to go to the publishers offices themselves.
When writers moved to far-flung places, like Des Moines or Seattle, the writers needed an advocate, someone to contact the publisher for them. Agents stepped in, and acted as the writer’s representative in exchange for 10% of each sale that the agent made.
Agents have always had a slightly shady reputation. If you look at the movies of the 1930s and 1940s, you’ll see theatrical agents portrayed as sleazy and barely tolerable types. In the movie Frost/Nixon, there’s a lovely scene in which Richard Nixon takes on the most famous literary agent of them all, Swifty Lazar, and wins. Nixon treated Lazar the way that most people treated agents in those days, as a necessary evil.
When publishing had a monopoly and business was conducted by telephone, lunch meetings, and the postal service, it was easy for an agent to make his name on his access to the publishing world. A lot of agents, like the famous Swifty, had more access than any writer could ever dream of having.
Agents, in those days, were salesmen, hustlers, trying to sell as many projects as many times as possible. Because, agents at that time were more like real estate agents. The literary agent didn’t have a “relationship” with their client. The agent had a product to hawk—a single book—and the agent had to sell that. If he didn’t, or if he didn’t do a very good job on the sale, then the writer went to another agent or did the work himself.
By the mid-1980s, however, this agent model was fading. The boutique agency, where a handful of agents banded together to rent office space, became the thing. Some of this, again, happened because of the cost of doing business in New York. It became too expensive for the average agent to have his own office.
But the agents also learned that by banding together, they could act on behalf of all of their clients, expanding their clout. So now, Agent #1 wasn’t representing 3 bestsellers. Instead, Number One Agency was representing 15 bestsellers, and by gum, Really Big Publishing House should acknowledge that by giving Number One Agency good contract terms.
This change was happening when I came into the business, and clearly I imprinted on it. At this time, also, agents started charging 15% instead of 10% and some places began having their writers sign agency agreements which stated that the agent would represent the client (not the work) until either party terminated the agreement.
Those agency agreements weren’t that big a deal. They were breakable with a single phone call, and there would be no hard feelings. Also about this time, publishers realized they had a liability issue when they gave a writer’s check to the agent. So publishers requested an agency clause in the contract of any writer whose agent got the check first. All that clause would say was that the writer authorized Really Big Publishing House to issue the writer’s checks to Number One Agency, and that would be considered payment under terms of the contract.
Again, no big deal. It covered the publisher’s ass in case Number One Agency ran off with the writer’s funds (as some agents did). Without that clause, the publisher would have had to either issue another check to the writer or get sued for breach of contract.
Another ten years passed. Boutique agencies grew into major corporations, and those corporations realized they should branch out into Hollywood. Things work differently in Hollywood. Contracts are draconian things that take money from the creative artist and give all of that money to hangers-on, if the creative artist isn’t careful.
At the turn of the century, Hollywood business practices infected the boutique and corporate literary agencies. I have examples in my files from one former boutique agency (now a corporate agency) showing the evolution of the agent clause they put in a publishing contract. It went from “send the check here” to this [emphasis mine]:
“The Author hereby irrevocably appoints [Agency]…to act in all matters pertaining to or arising out of this agreement and all other agreements, licensing, or otherwise dispersing of any rights in the Work in any form or media, and including any works for which there are options under this agreement…In consideration for services rendered, the Author irrevocably assigns and transfers to the Agent a sum equal to 15% of all monies due the Author under this Agreement and related agreements….”
It ends with this rather astonishing sentence: The provisions of this paragraph shall survive the termination of this Agreement.
Um, excuse me? Lawyers out there, tell me how this is possible.
That paragraph is a minefield of horribleness. It irrevocably assigns at least 15% of earnings from the sale of any rights in the book to the agent, as well as the same amount in works that are covered under the option clause. So if the agent negotiates a broad option like this one: “The publishing house has the option on the author’s next work,” then the agent will earn his 15% in whatever that next work is…even if the publishing contract is terminated.
(Yeah, I know. I just said that last sentence probably isn’t valid. But what do I know? I’m not a lawyer. And besides, do you want to be the poor sap who has to spend years in court proving that particular clause is invalid?)
That agency clause is nowhere near the worst I’ve seen in the past few months. Writers have been sharing some real doozies with me from corporate agencies.
Here’s the next big offender:
This agent clause which goes into a publishing agreement has all the traditional stuff about payment. And then it says [again, emphasis mine], “For services rendered and about to be rendered, the Author does hereby irrevocably assign and transfer to said agent and said agent shall retain, a sum equal to 15% as an agency coupled with an interest….”
Oh, my God. I wouldn’t have signed that as a twenty-one year old newly birthed nonfiction writer. It sounds scary because it is. It means that the writer has assigned his agent—irrevocably—15% of the book. “An interest” is a legal term and (lawyers, you can correct me), it means that the agent now has a piece of that property. 15% worth to be exact.
We’ll talk about the implications of this in a minute.
But let’s now move to the worst offender I’ve seen in the past few months. I’m not going to say it is the worst offender out there, because I haven’t seen all of them. It’s just the worst of my little trio of horrors.
This big name agency has the same clause as the one above. But coupled with the agency agreement—a five-page document that gives the agency the right to negotiate for the writer on any matters on the writer’s behalf. It also gives the agency “commissions earned by, paid to or credited to” the Author “or any entity owned by or controlled by” the Author “in perpetuity.”
Seriously. In perpetuity.
And in case the writer missed that point, there’s this: “The Author understands and agrees that the provisions of this Agreement which by their very nature survive the expiration of the Term of this Agreement.” And then it goes on to list all the negotiation, money clauses, and interest in the work clauses as surviving the Term of the Agreement.
In other words, you can fire this agency, but you—and your heirs, and any corporation that you form or trust that you create—will owe that agency money forever.
Now, technically, forever isn’t an acceptable contract term. Contracts need an end date to be valid. But again, do you (or your kids or your grandkids) want to be the one to go to court to win that fight?
This five-page agent agreement is so egregious, by the way, that even if you fire the agency, they can still negotiate a deal for you and undercut any new deal you might negotiate for yourself. And you, if you signed this agreement, gave them permission to do so.
I read this thing and wanted to go screaming into the night. Because I know dozens of people who have signed it.
(Okay, Kris. Breathe. Breathe.)
So let’s look at the implications of all this stuff, in relation to our agent history lesson, above.
These egregious clauses started showing up in book contracts and agency agreements around the turn of this century. Big agencies had become the norm and they worked on the Hollywood model.
It’s clear from these clauses that the important entity in these agreements isn’t the author. It’s the agency. In the case of two of these clauses, the agency is making an actual rights grab on an author’s work—and the authors who signed this stuff allowed that rights grab, probably without understanding what they were signing.
Here’s how it works in practice. Author A gets pissed at Number One Agency and wants to hire The Grass Is Greener Agency. The Grass Is Greener Agency sells Author A’s next book, and the day after the sale is announced, The Grass Is Greener Agency gets a phone call from Number One Agency that says, “You didn’t have the right to sell that book (see egregious clause #2). But you did, so give us our percentage.”
Author A has a choice: either go to court or pay a 30% commission on the new book (15% to the new agent, and 15% to the old one). Court will take years and Author A could lose the case. The 30% is the best option here. And that 30% will continue on all projects related to that book, and maybe on all future projects.
An even worse case? That last agreement, in which The Grass Is Greener Agency gets the phone call informing them that they had no right to make this deal and the deal is invalid because Number One Agency negotiated a different deal on the author’s behalf with a different publishing house. Author A, after all, had signed away the rights to negotiate for himself in that horrible five-page agent agreement.
You think things like this don’t happen? In the past month, I’ve heard two separate stories of big deals gone awry because of this very thing.
And let me give you a parenthetical scare: if you signed some of those egregious agent clauses, you might owe your agent 15% of that book, even if it’s out of print from its original publisher, even if you e-publish the book yourself. You gave your very smart agent 15% of your property. Just sayin’
So let’s back up to the beginning of this blog post. My own little dream that agents would defend writers against publishers.
What the hell was I thinking?
I was operating not like it was 1999, but like it was 1989. And I was believing the myth of agent as author advocate. Agents have always been in this game for themselves.
Don’t believe me? Then look at this little parenthetical aside about the Scott Meredith Literary Agency from the great Lawrence Block in Mystery Scene Magazine #118. In a column about Evan Hunter, Block writes about the porn fiction market of the late 1950s (and stresses that what was called “porn” back then is what we call “erotica” now).
“The foremost publisher of this erotica,” he writes, “was Bill Hamling, whose imprints included Nightstand Books and Midnight Reader, and Scott Meredith had an exclusive deal to feed Hamling a steady supply of manuscripts. (Scott got 10% of what his writers were paid, of course, and we’ve since learned that he also got a packaging fee of $1000 a book. So when I wrote a book for $1000, I received $900 and my agent pocketed $1100. What a guy!)”
See why my dream was silly? Most agents have always been in this business to act in their own best interest. I say “most” because I do know a few agents who are really ethical folk, who are really trying to do the best by their authors, who really believe that they are the authors’ advocate. If you have an agent like that, count yourself lucky.
Before you pat yourself on the back, however, check your agency clause in your most recent publishing contract. If it looks like any of the above, you have trouble. Your agent might be ethical, but he might work for a big corporate agency which isn’t ethical at all. And the agency is named in that clause, not your individual agent.
Checking your agency clause in your most recent publishing contract is the best way to see who your agent is working for—himself or you. If any of the egregious clauses I mentioned above are in the agency clause of your latest publishing contract, your agent does not work for you. He works for the agency.
The second way to see who your agent is working for is to look at your agency agreement. If you have one that lasts past that phone call in which you want to terminate (without cause) your “relationship” with your agent, then your agent doesn’t work for you. He works for himself or his agency.
Really, honestly, truthfully, if you signed an agency agreement at all even if it’s a simple one, your agent probably doesn’t work for you. The best agents still work on a handshake and don’t put an agency clause in your publishing contract past the instructions on dispersal of funds. And yes, there are a few who still work that way. (And no, I won’t tell you who they are for two reasons: 1) They don’t want to get inundated; and 2) I haven’t worked with most of them, so I only know about them through friends. In fact, some of them are friends. So don’t email me and ask.)
The biggest red flag in 2011 that your agent doesn’t give a damn about you is a really simple one: Your agent has started an e-publishing business for the backlist of all of his clients.
The agent who starts an e-publishing business is no longer an agent. He’s a publisher. And he is now competition to publishers out there. I’m not the only one who sees it that way. Look at the publishers’ comments in a recent Bookseller article.
Let me tell you two separate stories, both true.
1. A friend of mine has a bestselling series with a well known traditional publisher. Her agent has recently started a backlist e-publishing company. The friend got an offer from her traditional publisher for the same terms as her previous books. That includes e-rights.
The agent tried to negotiate away the e-rights, and when that didn’t happen, stalled the negotiation, refusing to budge on these terms. The author had no idea what was going on until she was talking to her editor on the phone. The editor asked what was going on, and told the writer about the stalled negotiation.
Until this point, the author had thought the stall was coming from the publisher. In fact, that was what the agent had told this author.
I wish I could tell you that the author fired the agent and continued the negotiations on her own. She didn’t. But she forced the issue, at least, and the traditional publisher has the e-rights just like in the previous contracts.
I also wish I could tell you this is an isolated case, but I have heard this story in different forms from about six writers now, some of whom had something similar happen to them and some of whom were screaming at their writer friends in the same situation to fire the damn agent now. This isn’t just one agent, by the way, but several–all of whom are now e-publishers.
2. A major agent is offering to buy the backlist of old-time writers, many of whom no longer have books in print, for a flat fee of $25,000. A publisher recently offered an advance and royalties for one of these writer’s backlists, and the agent refused to present the deal to the writer, whom the agent theoretically represented.
This too is happening a lot. To an impoverished writer, $25,000 seems like a lot of money for something that’s in a drawer gathering dust. But if the writer puts the backlist up himself, he’ll make more than that over time. And even if that writer doesn’t listen to sensible old me and do it himself, and instead hires an e-stributor for 15% of the take to put up the backlist, that writer would still make more money than if he sold his backlist for that flat $25,000.
So…
You look at your contract and see an egregious agency clause. You realize you signed a bad agent agreement. Or you discover that your agent has set himself up as an e-publisher.
What do you do?
In cases one and two, you’d better figure out what you signed and what it means before you take any action at all. I’d hire an IP attorney and ask them to vet your contracts and documents so you know what your risks and liabilities are before you take action.
Then take action. The action might be as simple as never ever ever allowing that agency clause in your publishing contract again. Or it might require you to get rid of that particular agent. If you do get rid of the agent, do not jump back into the frying pan with another agent. Don’t sign an agency agreement, and don’t agree to any more of those horrible clauses.
If your agent has become an e-publisher, fire that agent now. That agent is not working in your best interest and never will again (if they ever did). Your agent has left the agenting business and has become a publisher, so your agent now has a conflict of interest.
If you feel you need an agent, find one who does not do e-publishing. And don’t sign an agency agreement.
Earlier, I mentioned the agent’s business model. Here’s the key point: with publishing changing, the old 10-15% of each sale will not give an agent enough money to continue running his business—unless all of his clients are bestsellers. (This is why so many agents started chasing that bestseller-only dream a few years back.)
Agents are smart about business. They saw the handwriting on the wall before publishers and writers did. However, agents have no idea how to thrive in this new environment. Their old business model doesn’t work, and if a writer indie or self-publishes, then the agent can’t get a percentage of that either.
Agents, more than anyone else in publishing, are running scared. That’s why they’re trying to get ownership in a writer’s property. That’s why some are calling themselves “managers” now. That’s why so many agents are experimenting with their business model.
Some agents see e-publishing as the only way to keep their own business alive. You don’t have to support their new business. You have your own business to run.
Right now, while all of publishing is in flux, I’m advising new writers to avoid agents. Down the road, once the agents have a good business model again, my advice may change.
Things are dicier for the established writer. Established writers are used to having agents and for some reason are unwilling to learn how to do business without those agents.
(Let me give you a hint, folks. Most foreign deals come because someone got their hands on a book—not through an agent, but through a bookstore. Then the foreign publisher contacts the U.S publisher and asks who has the foreign rights. That publisher can as easily point to the writer as to the writer’s agent. The same goes for Hollywood. It’s that simple. There’s a thing called the internet now. The world has gotten small. As long as you have a static website with a contact button, anyone—including a foreign publisher—can find you.)
So, established writer, your agent has become an e-publisher. You have fired that agent. What do you do now? I give you the same advice I give to new writers. Wait before you hire a new agent. Give the industry time to settle into its new pattern.
During the next two years, if you have a book deal to negotiate, hire an intellectual property attorney. If you’re like most established writers, you probably have a book deal that will take you through these next two years. You won’t have to negotiate anything.
So stay put, watch the trends, and make your decision when the time comes. If your agent has become a publisher, fire him at your leisure. Have a plan before you let that agent go.
Oh—and one other thing. These clauses I’m citing come from very reputable established agencies. When I first red-flagged them several months ago, many of my established writer friends said they hadn’t signed an agency agreement. These writers have been with their big reputable agencies since the 1980s, before this practice became common.
If you’re one of those writers, find out what your agency’s practice is with new clients. If some of your friends have signed on, ask if they had to sign an agency agreement. Ask to see that agreement.
If you’re with one of these agencies, you’ll be shocked.
I would advise you to leave any agency that has an agreement like that even if you never signed one. Why? Because that’s the way the agency operates now. It doesn’t operate in the client’s interest; it operates in the agency’s interest.
(I ran into this almost a decade ago as my once-good literary agency changed. I asked my agent to overnight a check. I live in the boonies, and I don’t want checks greater than $1000 to sit in my mailbox down the hill and out of sight of my house. I wanted checks of that size or greater to come through a tracking service like Fed Ex that hand me the package directly. My then-agent said, “It’s no longer company policy to send checks smaller than $10,000 through a private service.” I said, “I’m the client. You work for me.” My then-agent said, “Um, sorry. But I’m afraid I still can’t do that.” And didn’t budge.
(Guess what happened to my relationship with that agent? Well, we’re still friends…but we don’t do business any longer. Not because of the agent. But because of changes in the agency.)
Your agent has to work for you. If any of the red flags I listed above apply to your agent now (not to the person that agent was five years ago), then you need to part ways with that agent before you negotiate another book contract. Many of you have years to make that decision. Many of you need to make that decision now.
But be cautious about what you jump to. Every agent I know is in flux. One of the best said to me a few months ago that he was considering retirement: he doesn’t recognize the industry any longer and sees no place for himself in it. I wouldn’t be surprised if several of the ethical agents go that route.
Time to start the research. Time to figure out if you’re going to continue working with an agent or if you’re going to hire an IP attorney to negotiate contracts for you. I recommend the IP attorney, but I am not you and I don’t know your circumstances.
Be warned, however, that this business is changing—and the agency business model that existed since the 1950s is effectively gone. Don’t keep your agent because you’ve always had an agent.
Be proactive. Figure out what’s best for you—even if you end up with the status quo. Do the research, and be informed.
Otherwise, you may end up losing a 15% (or higher!) interest in your book because you blindly signed a contract that you didn’t understand or because you made an agreement with someone you thought was trustworthy who is trustworthy no longer.
Good luck.
“The Business Rusch: Agents (Surviving the Transition Part 3)” copyright 2011 by Kristine Kathryn Rusch.
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[…] Be sure also to read this recent post by Kris Rusch on agents. […]
By the way, I’m not the only one who says that agent as publisher is wrong. In fact, it might be against the law. See this post…by an agent: http://www.redhammer.info/news/agent-publisher/
[…] Passive Voice also links to Kristine Kathryn Rusch, which you should also read before you do anything. Don’t even poop bef… […]
Agents have always been in this game for themselves.
I think that statement is a bit too much. I’m sure there are honest agents out there. Christopher Little didn’t screw over JK Rowling.
And, you know, saying “Most agents are douchebags. I know who aren’t but won’t tell you. Good luck!” is not helpful at all.
Sorry, I guess I’m just scared. The story of JKR’s wonderful agents as told in “Harry: A History” was my first contact with this issue. I spent years hearing an agent is the way to go if you want to publish anything.
In my country -nay, in my *continent*- there are no agents.
And now I hear that agents are the devil, and all we can do is e-publish or deal with traditional publishers ourselves.
In my country,e-books (of the legal, bought variety) don’t exist, because *talets and other stuff to read them on* don’t exist, and not many people buy online anyway. And the only publishers I know that haven’t yet fled to Spain are part of a very shady multimedia conglomerate, whose star writer is a woman who CAN’T WRITE SHIT, yet keeps churning out crappy novels for people that you know never read shit in their lives.
And there is no advice for aspiring writers either.
Sigh.
I never said I wouldn’t tell you, Lynn. I just won’t tell the world on my blog. I do answer private questions, however, and have been throughout the series. I just don’t do it in public.
I also never said “Most agents are douchebags.” I’ve given concrete examples of ways to know how an agent is on the up and up. Go back and read the post. It’s pretty clear on what to watch out for. There are agents who don’t do those things, in all genres. Avoid the agents who do. It’s really that simple.
As I said in “Writing as if it’s 1999,” agents were the way to go once upon a time. Things have changed. Btw, JK Rowling got her agent and her start in the 1990s. Nothing in her book contradicts what’s being said on this blog.
And everyone who is in business had better put their own business first or they’ll go out of business. Agents are in business for themselves first. They’re not running a charity, any more than publishers are. But some agents do right by their clients, and others don’t. I’m trying to help you avoid the ones who don’t.
You neglected to say what country you’re in, and I can’t tell from your e-mail address. But it looks like you can find writing advice on the web. It’s up to you whether or not you chose to follow it.
I never got an agent, hence my interest in this blog/thread. Maybe I was lucky after all. My first novel has been out there for two months, and the problem now is to get known as a newbie author published by a small press. If I ever get a call from an agent who discovers my work (assuming agents are still around in a year’s time), I’ll read your blogs again.
Thanks
Kris, C.E.,
To paraphrase Sir Francis Bacon,
“Lawyers make good servants but bad masters.”
Might I suggest the following simple advice?
1. Have your own lawyer.
This is a lawyer to whom you pay cash for professional advice. Not your agent’s lawyer, not your publisher’s lawyer, not your cousin who went to law school. A real practicing attorney in your state or province who knows copyright law and contract law. This lawyer will be loyal to you and give you good advice. No other lawyer will.
2. Read every contract and every revision of every contract.
If something seems fishy to you, it probably is. Do not accept the explantion of other concerned or amateur parties about what language in the contract “really means”. Have your lawyer review every contract. It’s worth it. Nolo press publishes some good books to help you understand contracts.
3. Don’t be afraid of lawsuits.
Being sued is expensive and time-consuming. So is buying a house or having a child or writing a novel. Being sued is not the end of the world. And frequently your willingness to defend yourself against lawsuits will cause the opposing party to settle on terms which are more favorable to you.
I am not an attorney, nor am I a published author. The above advice actually applies to *any* business; I run a software business.
Great points, Josh. In fact, wonderful points.
Btw, to clarify on lawsuits, I’ll happily be involved in one when I need to defend myself on something to do with my writing/business. But for the sake of this blog, I’m not going to do anything that I know will get me sued, even if I’m in the right. I don’t have the deep pockets that newspapers used to have to mount that kind of defense. 🙂 I think you need to pick your battles in all areas, and sometimes I don’t even want to walk on the field. At other points, I stride into the middle of the battlefield and wave my arms, crying, “Bring it on!”
So, folks, read Josh’s post. He has given us excellent advice.
There’s “economy of scale”, and then there’s believing that a fat man can run faster than a thin man because he’s larger.
Kris, you’ve just unintentionally hit one of my buttons. Keep in mind that I have served as in-house counsel on the Dark Side of the Editorial Desk before at a niche publisher (that was the 500-lb gorilla in its not-all-that-small niche).
The sticks-kept-on-retainer at the major publishers are in substantial need of some strong medications to deal with their spinal erection disorders… when, that is, they’re competent to provide the required counsel in the first place (the vast majority, even and perhaps especially at Big Six publishers, are not); and when the publisher hasn’t ill-advisedly negotiated an E&O (errors and omissions) policy, in particular its media-perils coverage, so stupidly that it’s letting an insurer determine its editorial and contracting policies; and when the publisher personnel are honest enough to actually give counsel all of the necessary/appropriate data so that counsel can form an opinion; and when counsel is sufficiently sophisticated that he/she can write a simple declarative English sentence that says “do this” or “don’t do this,” rather unlike this convoluted (but unusually clear) monstrosity, which actually — despite the large number of subordinate clauses — actually makes a declaration.
This is a corollary of, and simultaneously a cause of, the constant imprecations on this blog (and elsewhere) to get yourself the right specialist attorney. The majority of attorneys at the Big Six publishers do not have intellectual property backgrounds, and only one of the six General Counsel has significant litigation experience. This colors their perspective in a highly inappropriate way that is ultimately to nobody’s advantage. The number of times I’ve had to point out the very existence of 11 U.S.C. § 362 to those lawyers — not to mention the limitations on what they’re allowed to claim as work for hire under 17 U.S.C. § 101 — makes me ill, and those are just incredibly obvious issues that any attorney with an IP and/or litigation background would spot almost instantaneously.
This hot button is not directing ire at Our Gracious Hostess. It sends its ire at the corporate bureaucracy that has taken over US publishing since Bennett Cerf decided that it would be easier to grow Random House by acquiring other publishers than by expanding his own staff. It sends its ire at those who claim that “bigger means more economies of scale” without acknowledging that there are both “points of diminishing returns” and “diseconomies of scale.” It sends its ire at the legal profession for its drawing of boundaries with all of the accuracy and integrity of the colonial powers in Africa and Southwest Asia… and refusing to take responsibility for the inevitable results.
And, in the end, authors are caught in the middle, which really pisses me off.
We now return you to your regularly scheduled rant. I make no pretenses at being “fair and balanced” on these issues… because I’m an honest JD. Trust me. 😉
Thanks so much, CE. You mention some things I didn’t know (and now I’m scared.), but which make sense, given some of what I’ve seen.
Refusal to take responsibility had been a particularly big problem in many large American businesses of late. It’s a trend I don’t like. And like you, I hate it when innocents–in this case, most authors–get caught in the crossfire.
As for me, on this blog, in reference to Josh’s point (and in my career, actually), I believe in keeping myself out of situations where sticks-on-retainer can come after me easily. I know that you can’t prevent all frivolous lawsuits, but you can prevent some. And I’m always in self-protect on that, hence my refusal to name names, even when I have the documentation to back up what I say. I have the documentation, but not the deep pockets. So while I might be able to defend myself in a court of law, I don’t want to pay the financial price of doing so.
Which is, I suppose, some of what those sticks-on-retainers are supposed to do. They stand in front of the door like an armed guard who doesn’t know how to use his weapon. The sight of the weapon alone is enough to turn most folks back. That’s how it works for me in this instance, anyway. (That, and writing too many mystery stories, I think.)
Kris,
I was just reading some of your, and Dean’s, writings about agents and publishers. I’m concerned that you’re laying it on too thick; your arguments come across as hyperbolic and as a result your good solid advice to writers fails to come through. There is such a thing as selling too hard.
I think you might reach more authors, and those authors would be more receptive, by doing a detailed series on warning signs of a agent not to sign with (or a publishing contract not to sign). Clauses and business practices and suchlike which are dangerous. What “power of attorney” means. And how not to be afraid of attorneys.
Just a suggestion, because I do think that a lot of writers need advice in looking out for their own interests.
Thanks, Josh. I appreciate the comment.
I’ve been doing what you’ve suggested for years. No one listens. They seem to pay attention to this method, though.
Publishing contracts and agent contracts are not standard. Each publishing house has upwards of 100 different contract templates, not counting how many different actual contracts, so with publishing itself what you suggest is impossible. I can only talk in generalities. And I’m not a lawyer, so I can’t give in-depth legal advice.
Agent contracts vary from agency to agency. It would be better if I could simply say avoid Agency A because their agency agreement does this that and the other thing. However, that would open me up to lawsuits. So I’m not going to do that either.
I sure wish I could take your advice, because like you, I believe it’s better to speak softly and carry that proverbial big stick. But in the recent past, no one listened to softly, and I don’t even own a stick. The publishing houses and agencies have one on retainer.
The word “agent” without “literary” in front of it concerns the legal concept of an “agent”…
Under the common law, an agent has no standing to sue; instead, the agent is purely a representative of the agent’s principal. Similarly, an agent has no standing to receive court-ordered remedies (usually money, but also specific performance) that are “properly” directed to the principal. There are many, many other restrictions on what an agent can do, and is entitled to, that describe “expected” functions of a literary agent.
However, under the common law, when the agent has an actual interest in the subject-matter of the agency, the agent does have standing to sue in the agent’s own name; does have standing to receive court-ordered remedies, such as payment of back royalties and receipt of documents like foreign sales deals; and so on.
Thus, the “agency coupled with an interest” language, which purportedly changes things.
It doesn’t; that distinction that I described above between a “mere agent” and an “agent with an interest” is early/mid-twentieth-century common law that has been overtaken by statutory changes in the law of agency in every US jurisdiction over time. New York was one of the last jurisdictions to do so, and it took that now-38-year-old opinion by the New York Court of Appeals to clarify that the statute really did overrule the common law “necessity” — none of which has changed the tendency of unsophisticated lawyers to reuse language that has been “successful” in the past without updating their research. When, that is, the [insert string of unbelievably foul and offensive expletives here] morons who run the entertainment industry, of which publishing is one segment, can be bothered to consult sophisticated counsel before things devolve to a live dispute, and then follow that sophisticated counsel’s advice.*
Then there’s the subsidiary, unmentioned side effect that is completely obsolete in this day of faxes, let alone e-mails and FedEx. Some counsel believed (although it’s not entirely clear that they were right) that “agency coupled with an interest” gave the agent the power to sign paperwork on the principal’s behalf. Remember, in the bad old days it wasn’t just the ability to go to lunch with the editors that made literary agents a “necessity”; it was the perceived ability to get a contract signed and returned in less than two to three weeks, particularly for overseas authors (whichever direction across the Pond one is referring to). In this day of faxes and e-mails, though, and the widespread acceptance of fax-reproduction of signatures and digital/digitized signatures (not the same thing) as the legal equivalent of one produced by using a quill in an inkwell and scribbling on a piece of paper, that “power” is completely unnecessary… and leads to problems like the notorious Uwe the Con Artist scam that Kris and Dean are probably cringing at being reminded of. The point here is that nobody should ever allow anyone other than their attorney to have the power to sign legal papers… except if not mentally or legally competent to do so, and nobody like that is going to be reading this blog!
And I still want the pony. Unfortunately, what I’m going to get is the result of sending said pony to the glue factory… and then leaving the tub open and out in the rain. (Ask a joiner, furniture restorer, or marquetry artist the result of that, if you can’t figure it out.)
* I’m absolutely certain that — but for client confidentiality arising from both privilege and confidentiality provisions forced on our respective clients — Passive Voice Guy and I could regale you for days with specific examples, not necessarily limited to the entertainment industry. Just like dentists can’t make you actually brush thoroughly after every meal, lawyers cannot make our clients actually follow legal advice… or be certain that the client has actually given all of the relevant information to support that advice, like the patient who neglects to tell the dentist that she’s a sommelier when complaining about the dingy color of her teeth.
Wonderful post, CE. Thank you for clarifying.
Yes, I know dozens of writers who have effectively given their agent the power to sign things for them. Conversely, I know a handful of agents who believe they could do it, even though they weren’t granted the power. And I know some writers who routinely sign power of attorney documents with their agent for foreign rights contracts. One major foreign rights agent requires it as a condition of signing a client. (sigh)
Good post.
This is just a few miscellaneous comments.
(1) Why the “agency coupled with an interest” language? Because the publishing industry is in New York, that’s why. That language means something different everywhere else, including (and especially) in plain English. My brethren in the legal profession have not figured out that — even in New York — that language is no longer required, and in fact doesn’t mean what it’s supposed to mean. I suppose I should cut them some slack, though; it’s only been thirty-eight years since the New York Court of Appeals so decreed. After all, they haven’t gotten around to changing contracts to match the Copyright Act of 1976 or Bankruptcy Code (1978) yet, either.
And I have a couple of historical corrections to make regarding this language. It actually originated in publishing contracts in the late 1960s (ironically enough, in response to one of Mr Lazar’s less-infamous cons) as a way to keep the publisher from having to deal with a second agent’s demand for payment of commissions. It moved its way into agency contracts slowly over the next twenty years, and was virtually standard at multiform agencies (that is, those with extensive non-publishing business, such as William Morris) by the late 1980s.
(2) All of the above is all well and good. The real problem, though, is that agents aren’t allowed to do better by law. Any concerted, coordinated effort by agents to uniformly improve contract terms — such as, for example, requiring that publishers make decisions on option books not more than thirty days after the complete proposal for the option book is presented to the publisher — would run into the antitrust consent decree imposed on the Society of Authors’ Representatives (the predecessor of the AAR) in the late 1970s that eventually led to its demise. It should not surprise anyone to learn that it’s the same law firm, and same lawyer, for the AAR now…
The bottom line is this: The WGA can negotiate in H’wood because it’s a union. (Its effectiveness is for another time.) Unions, under US law, can only represent nonmanagerial employees. Managerial employees and businesses may not band together to do more than lobby the legislatures; if they try to jointly negotiate anything, they’re running afoul of antitrust law, and when that happens there’s only one winner: The lawyers. Thus, agents can’t band together effectively… and neither can freelance authors. (WFH authors, though, can, because they’re “employees”…)
Yes, this is more than slightly unfair. A few years back, Rep Conyers introduced a bill to allow freelance writers and artists to bargain collectively, as a specific exemption from antitrust law. The problem is that the particular bill was introduced by the UAW and National Writers’ Union… organizations I hold in less than minimal professional regard.
I suppose I could go into Rawls’s original position as a refutation of misapplied antitrust law from a different era to the digital economy, but that sounds more like a law journal article (it is, in fact). The key point is that the antitrust law in question was designed for the US economic structure in place before the 1929 Crash, and has only been updated since to the advantage of them that already has. Since almost by definition authors are them that hasn’t…
(3) There’s another historical change in the late 1980s that I wish Kris had mentioned. Prior to 1988, almost no agents with any real reputation were former publishing employees. (Yes, there’s a specific, statutory reason for 1988 being significant, but I won’t bore you with the details.) All of a sudden, by the early 1990s it was no longer an exceptional event for Publishers Weekly to note that “Editor X has left Publisher Y and is forming the Z Agency, which will specialize in…”, whereas that was a full-page article in 1986.
Also in the 1980s, media conglomerates began buying up publishing companies and importing their media-conglomerate legal staffs and negotiation tactics.
Thus, we ended up with a generation of agents whose previous employers treated them like dirt. One would like to think that experience would have led them to treat their author-clients better than they themselves had been treated. One would also like the pony.
Thanks for the marvelous comment, CE, and for the corrected historic perspective. You make my ancient non-fiction brain creak. It popped up with, Let’s write a history of bad practices in the publishing industry, not that I have the time to do so. But how fun that would be, going from Scott Meredith to Swifty Lazar to various publishers…
Anyway, the only thing about your post I’m not sure I understand is the first point about agency with an interest. What does it mean in publishing terms, then? I want to make sure I’m understanding it as well.
Thanks–
Hi Kris,
Yeah, I read his comment. He’s right.
I just posted a blog on this topic. I called it Literary Double Agents. Because that’s what they are! Pretending to be the author’s advocate when in reality, they are the exact opposite.
Again, thanks for the information!
Melissa
I love the title, Melissa. 🙂 Exactly.
I think I’m going to stop talking to writers who have agents and love them and see a place for them in the electronic world.
I’ve seen the C.V.s of the agents. Bachelors of Arts. Maybe a Master of Arts or two. Some apprenticeship under another agent, and perhaps a publishing course.
I haven’t seen any so far with an MBA, or a finance, or business, or even economics degree. Ditto for financial and career planning expertise, and a few handful of legal degrees. What’s more mind-boggling is that some writers with agents are themselves more equipped and qualified to read, understand, and negotiate contracts and business terms than the agents (as some of them are actually lawyers, or doctors, or business executives, etc.).
It just doesn’t make sense to me, but what do I know, right?
It’s easy for me and newer writers to just shake our heads, steer clear, and write instead, but I can’t help but wonder what will happen to the writers stuck in the agent myths. It also makes me appreciate even more that you and Dean share and teach what you know and learn!
By the way, I just saw one deal where a literary agent sold a client’s backlist books to…an electronic press subsidiary of a major paperback house. How much money did that writer lose by giving their 15% to their agent for a project they could have sold to that epress themselves, and how long is the agent going to get 15% from that sale?
Just incredible.
Thanks, Sam. Yes, many agents become agents directly out of college, and that’s the only job experience they ever have.
As for that backlist deal, headshaking. Like another recent deal from an agent with all of his clients’ backlist to the smallest ebookstore–as an exclusive (or so the deal looks to me). Um…what? If you’re going to do an exclusive, then do it with Amazon–the biggest gun. Or at least B&N, because it has the possibility of getting to more people. But the smallest? Why?
I don’t understand a lot of this any more than you do.
One thing this article and your previous ones have shown is that the human penchant for enslaving fellow humans is alive and well. The agents are probably cunning enough to realise that the best way to shore up themselves and their businesses is to keep writers believing that agents are indispensable – keep the shackles on their minds and tie their hands with devilishly creative clauses in their contracts to make sure they don’t escape. No wonder more and more traditionally-published writers are becoming runaway slaves!
LOL! I like your metaphor, Tony. 🙂
As a writer who does indie pub, and pubs under the traditional model, I can tell you for experience and study this post is 100% on the money. Nice job, Kris.
Those agency agreements are the most draconian documents I have ever seen that will tie up your business for decades. Yes, many agents are personable nice folks who do want you to succeed, but if you see any of the signs Kris mentions RUN, do not walk, away. And please don’t sign those agreements.
Being a student of Kris and Dean for almost a decade I have come to the conclusion that agents are not for me. I don’t need another layer between me and the checks. Who needs the aggravation of another employee to keep any eye on and have to fire? My wife and I owned a small business many years ago and we had to fire people all the time. Not fun and so stressful I cannot tell you.
These days my list of reasons is so long for firing an agent (if I hired one) that it sounds like wayyy too much work to have one . I work hard enough thanks.
I know these myths about agents are ingrained in writers, I hear them parroted back all the time. I submit to editors all the time, and usually get nice, polite responses.
Editors want to see your work. Really. I’m not kidding or making this up. I do this. Lots and lots of writers do this. And lots and lots of books are sold by the writer (even those ones you see where the agent takes the bow when they did next to nothing). Why? How can this be, you ask? Because you the writer wrote the best story you could and mailed it. The editor who read it loved it enough to purchase the licence to publish it.
Good books sell. No agent is going to be able to sell a book that doesn’t work. I know they like to say otherwise, but it’s a myth.
As Kris points out read Dean’s blog posts and drive a stake through the heart of those myths. We gotta kill those suckers stone, cold, dead!
Thanks, Kris for the excellent post, I’m getting off my soap box now.
BTW see the new covers for more Retrieval Artist books. Very cool!
Thanks so much, Russ. I hope the newer writers here will look at your post and realize that it’s not hard to do this stuff yourself. Thanks!
Hi Kris,
This is another great post that I will definitely blog about to spread the information. I passed it on to the Superstars writers.
Passive Guy wrote a good blog on what you have said here:
http://www.thepassivevoice.com/06/2011/you-just-signed-with-a-big-agent-oh-im-so-sorry/
He also wrote another one about Copyright law that renders what is printed in these contracts unlawful:
http://www.thepassivevoice.com/06/2011/a-get-out-of-jail-free-card-for-some-authors/
Thanks again!
Melissa
Thanks, Melissa. The Passive Guy already posted a comment here. You should read it, below. But thanks for passing on the word! Always appreciated!
As always, a great post and very, very important reading for writers, both published and unpublished. Clearly contracts are of direct concern to agented and published authors, but newbies should pay attention because it could apply to them someday.
I worry though about the unravelling of the publishing industry and agency model that all this implies. A major reason why newbies did not want to turn themselves into self-published authors is not so much the stigma attached t self-publishing (you always figure out you’re damn good and you’re going to avoid all those editing and proof-reading pitfalls, right?)
No I think that the reason for walking starry-eyed into agency contracts (and not looking at them closely enough) is the lure of being published by a traditional publisher at some point down the road. It means acceptance by one of the pillars of literary taste – you’ve gone by the “gatekeeper” and with the publisher’s imprimatur, you figure you’ve solved your problems of “discoverability”.
I’m glad you’ve warned all those starry-eyed hopefuls to be more careful…but I wonder what is the alternative? If these contracts are so obviously horrible, surely they are not enforceable without even having to go to court? It will be interestint to hear what Passive Guy has to say about this.
And what is your experience with simply saying “no”. Have friends of yours managed to change the terms of contract?
Claude, read the Passive Guy’s recent post on this on why saying no and still sticking with the agency that has these kinds of contracts is a problem: http://www.thepassivevoice.com/06/2011/you-just-signed-with-a-big-agent-oh-im-so-sorry/
My experience is that I never hire someone who has a terms of employment agreement ready for me. I’m the person who does the hiring, and I say what the terms are. If the person I’m hiring doesn’t like it, they don’t have to represent me. So I’ve never signed an agency agreement. I’ve never been with an agency that had one when I signed on. One of the agencies I was with developed an agency agreement while I was there. I didn’t find out about it until I left. They’ve since revised it into something awful. They still have a few novels in my backlist–and guess what? I’m finding all kinds of charges against my checks and things that I never agreed to. I have to continually remind accounting that I didn’t sign their stupid agreement and they don’t have the right to charge me for things except the agency commission. I can’t wait until those books revert and this agency is out of my hair. It used to be reputable. It’s a nightmare now.
So that’s a long answer about saying no. You can try it, but I agree with the Passive Guy. It won’t work. Better not to hire these folks in the first place. Hire an agent who doesn’t have an agreement. There are still some out there. If you want to hire an agent. I really don’t think you should any longer. They don’t fit in the new publishing model–at least, in their old traditional role.
Kris mentioned a time or two that you (or your children, grandchildren, estate, etc.) don’t want to be the people to sort out a messy agency agreement/agency clause. Here’s a current example.
Agent Ralph Vicinanza passed away in Sept. 2010; on May 9, 2011, the two remaining agents who were employed by the agency left. On May 18, 2011, a letter went out to clients of the agency, which reads (in part): “…At this time you should retain a new literary agent. We will of course promptly pay you all royalty checks as they are received from publishers….”
This morming (June 3), SFWA members received a lengthy message discussing the situation that authors formerly represented by the Vicinanza agency are currently facing. To keep this reply short, the situation is messy; however, two key points from the letter relate to the current discussion. Quoting from the letter:
“…1. It appears that the current administrators of the Vicinanza Agency are positing that it’s appropriate for them to take fifteen percent of their authors’ (and our members’) income for essentially being nothing more than a post office box for publishers to send checks. We strongly disagree with this position. … The current administrators of the Vicinanza Agency have no intention of continuing to earn the fees coming into the agency, and thus in effect see the fees as something akin to an entitlement, based on work they themselves did not do, and for which they have neither interest nor ability to continue. We believe this is not a neutral assertion for their authors and our members. It means our members are deprived both of income they have earned and the benefit of active, engaged agency. … We do not take the position that the current administrators of the Vicinanza Agency are intending to actively disadvantage their authors and our members; they are new to the field and may not fully appreciate the implications of their position to the lives of our members. Be that as it may, the potential for economic harm to our members is real and of great concern..”
The executors of the Vicinanza estate may or may not know anything at all about agenting – they probably don’t. They are acting according to their understanding of the terms of the contracts that were previously negotiated. Contracts that authors signed. Contracts that *may have been* accompanied by the handshake-reassurance that “those clauses won’t ever be a problem for you.”
They’re a problem.
The second problem cited in the SFWA letter:
“…2. We are also aware of reports of agents who have agreed to take on authors and works currently represented by the Vicinanza Agency, but who have asked for an additional percentage above the 15 percent typically taken, when dealing with the works currently handled by Vicinanza. Bluntly put, this is not acceptable. It not only sets a bad precedent in agent compensation, but in its appearance suggests that the agent involved is more interested in taking advantage of an author caught in a bad situation not of his or her own making, than in making an active and affirming effort in the economic life of that author moving forward. We urge our members not to engage the services of any agent who offers such a deal. …”
Sound familiar? The agents they’re talking about here are working for themselves, not for the authors they’re agreeing to represent.
Scary.
Thank you for posting this, Leigh. I’ve been aware of this situation for more than a month, and it is infinitely worse than the stuff mentioned here. Because many of the writers involved came to me in confidence, I can’t tell you all much about it except to say what was in the SFWA letter is only the tip of the iceberg. It’s a truly ugly situation and one that could have a huge impact on the sf field since many big name authors are involved. They signed some tight agency contracts and agency clauses, in part because they trusted Ralph and his two co-agents (one of whom used to be my editor, back in the day). Then Ralph died suddenly, and the two agents were forced out by the behavior of the new owners. The trust vanished with them.
I want to say more and can’t until more aspects of this become public. Thank you again for posting this.
My name is Marlene Castricato and I am an owner of Crescent Moon Press. As a publisher I was horrified to read this posting. We do deal with agents and like the agents we work with. I felt compelled to share this link with our group of authors We care about our authors and would hate to see any of them hurt by a contract with indefensible clauses like those above.
The best way to get the direct attention of a big house would be through a contest their judging or a conference where they are accepting pitches. It does take you out of the slush pile.
We encourage our authors to build their careers. Their success is ours.
Thank you so much, Marlene. Thank you too for telling writers how to reach you without an agent. Publishers and editors like you are one of the reasons I love this business and am fighting so hard for it. Like you, I believe that writers and publishers share in each other’s success. We have to make it work together.
A few weeks ago, I said something in one my posts about “the industry we all love.” And in the comments, someone asked me if that phrase was cynical. It is not. I love this industry and I want it to thrive. Clearly, you do as well.
Thanks again for the posting.
I’ve been thinking more about the nature of some of these clauses, and some of them almost read like an attempt to force writers into either the indie or trad camp.
In today’s industry, it may make a lot of sense to contract with the big names on a loss leader basis – that is, to use a few traditionally published books as a sort of advertisement for a more profitable self-published backlist.
It seems to me that this state of affairs may trouble the big publishing houses, who of course – given how few books earn out traditionally – can be viewed as investors in writers. They are (possibly were, for the more cynical among us) willing to take a loss on much of their work for the big payoff on a tiny chunk of it. But now, they face the prospect of putting in that work to build somebody’s name only to lose them entirely to the independent world.
That’s not far different from any other contract termination scenario they’ve previously dealt with, of course (not to mention that this is the standard risk involved in training employees the business world over), but maybe it’s more emotive. A lot of the until-your-dying-day clauses and thou-shalt-not-writes, in that context, are probably to be expected as a sort of defense mechanism.
Given all that, I actually think that teasing out some of these traps and dealing with them is going to be more important for the fence-straddlers than people who intend to go traditional all the way.
I agree with everything you’ve written there, Marcin, except your last line. I’ll get to that in a minute. I do think you’re right about the motivations. I think the publishers really want to have as much control as they can have–and who can blame them? That’s why the beginnings of a deal are contract negotiation. The writer has to understand and negotiation her part in all of this.
As for your last line, I’d agree except that signing these clauses and some of the others I mentioned will guarantee that 99% of all traditionally published writers won’t make a living at their craft. And contrary to what most beginners believe, writers have always made a very good living at their craft. So this is a huge, and frightening, change, one that could destroy a lot of lives. Which is why I’m yelling so loudly about these clauses. I want traditionally published writers–as well as indie writers–to make a good living from their work.
I’m in contract negotiations with an indie press for my second book. Thing is, I don’t have a built in audience, as my first book isn’t even out yet. Many bookstores won’t carry POD books, and I wouldn’t have a distributor to hand sell my books for me.
So striking out on my own is daunting. My book could easily be lost among the thousands of other self published books–which have a reputation of being poorly written and poorly edited. The stigma is out there, and a good many of the self published books deserve it.
Established authors don’t risk as much.
Your article seems mostly aimed at well established authors. What about the rest of us? What do writers like me do?
Yes, Amber. I said in my post that it’s aimed at established authors. I wrote an entire series for writers who aren’t established at all. I started it in October and you can find the TOC here: https://kriswrites.com/business-rusch-table-of-contents/the-business-rusch-publishing-series/
Scroll down and you’ll find posts for the beginning writer. It’s best to read the series in order, though, and to realize that as I wrote it some of my opinions evolved and changed. When you’re done with that, read the remaining posts which you can find here: https://kriswrites.com/business-rusch-table-of-contents/business-rusch-publishing-articles/. In particular look at the piece on promotion. But it’s best to read all of the posts so you understand where I’m coming from and why your question can’t be answered in a single comment after my post.
Good luck.
Here via Alex Adena’s post on Twitter…
I might be a few years (or decades) away from being in a position to sign an agency contract, but I can’t tell you how grateful I am both for the historical perspective and the balloon-popping. Until now I’ve been firmly wedged in Pollyanna-land where agents are concerned; I’ve just assumed, naively, that obviously they’d be looking out for their writers’ interests, because what’s good for their writers must be good for them. Oh, how silly I feel now! Thank you.
You’re welcome, Kern. Thanks for the post.
[…] Kristine Kathryn Rusch has yet another awesome post about the current state of publishing, and in this case, agents. […]
Deirdre, SCBWI–Society of Children’s Book Writers & Illustrators have regional conferences where editors speak and do critique sessions with individuals. The Western Washington Conference Program Book (and perhaps other regions’ conferences as well) includes addresses and ‘special offers’ where the editors will accept ms. from conference attendees for a certain period of time following the conference. It’s a great place to get in touch with YA editors.
Marvelous, Linda. Thank you.
[…] Rusch has a fabulous post up about author/agent contracts and why you should always read the fine print. More importantly, […]
Brilliant. Motivational. Helpful.
Not that I expect anything less. Keep up the good work, Kris!
Thanks, Loren. 🙂
Another amazing and important essay, Kris. Thanks for all the work you put into this whole series.
The more specific contract provisions I see, the more I realize how incestuous and provincial (yes, even in Manhattan) the publishing bar is. Any experienced business lawyer I know would strongly advise a client not to overreach in the manner reflected in the contracts you discuss. Why? Because these sorts of contract provisions are really going to set off some judge.
The best thing that could happen to the publishing bar would be a long cold soak in a courtroom to bring them back to the real world. The practical reality is that when a judge sees a contract clause that grossly overreaches, that judge is going to look for any plausible reason to void the clause and, quite possibly, the entire contract.
Some office lawyers can become so caught up in the power of the language in their contracts that they lose perspective about what their contracts will look like to someone outside their small professional world. I’m biased because I’ve both written and litigated business contracts, but just because you can put something on paper and lure an innocent into signing it doesn’t mean you have an enforceable contract.
Unfortunately, somebody has to sue or be sued to bring a judge in for a return to sanity.
I’ve already blogged about your essay, but will have a more lawyerly take on it in a day or two.
Thanks again for the essay and thanks for the mention.
You’re welcome on the mention, PG. Your posts are very important, and writers need to see them.
I wish that someone could bring these lawyers who devise these contracts into the real world. But, as you said, that would require the “innocents” to sue. They’d have to go to court and go through that headache. In the very recent past, no one sued because to sue meant you would also get blacklisted. Now I don’t think it matters if you get blacklisted: publishers/agents don’t have a monopoly any longer.
I would love to see some judge’s take on all of this–in a courtroom, making precedent so that everyone else in the field took notice. I wish…
Thanks again for the post. Now I’m heading over to your site to see what’s up. Can’t wait for the lawyerly post.
Okay, just read the Passive Guy’s new blog post. You must read it, folks. Because he says what I implied. If you’re doing business with someone willing to have contract terms like that, well, then you’re doing business with someone who is going to take advantage of you no matter what. Here’s the link: http://www.thepassivevoice.com/06/2011/you-just-signed-with-a-big-agent-oh-im-so-sorry/
Go forth. Read.
[…] Rusch is absolutely correct here on two […]
I never thought I’d be thankful that during all those years I tried so hard to snag an agent I never got one. But now I am. There is much wisdom in this post, and what I like about it is its clarity. With only traditional short story sales and indie published books I’m in the clear as far as bad contracts are concerned, and for now at least I would like to keep it that way. I don’t want to get all tangled up in egregious clauses like the webs in Shelob’s lair – indie freedom is too much fun.
Yeah, John, I’m hearing that a lot from newer writers. They’re happy they dodged that bullet. 🙂
Can I just say, ew? It’s completely mind boggling that sensible people would sign these agreements. But then, Hollyweird and the music industry have been doing this for decades. I’ve wondered for a long time when the publishing industry was going to start these practices. Now I know. This pretty much decides it for me, I’m going the Indie route with my novels and I’m going to wait until I have leverage. It’s too easy to dismiss/screw over the new guys. Depending how things go over the next few years, I may stay independent. I’ll have to see. This is a hot mess.
I agree completely, Amanda. It is mind-boggling. But most writers who have agents have signed a version of these clauses in the past five years. Many have signed the most egregious clauses, thinking those clauses protected the writer. (sigh) Ah, well. All I can do is put the information out there, and hope people see it.
Deirdre, there are writer’s conferences all over the place that invite editors to attend. Often, you can pitch directly to them, either formally with ‘pitch appointments’ or informally. Also, RWA runs a number of writing contests where editors are the final judges – so in addition to Dean and Kris’s excellent ideas, you DO have more avenues to get your work in front of editors without going through an agent. Good luck!
Thanks, Anthea. A good addition.
Thank you, Kris, for doing your part to shine some light on the tangle that publishing has recently become. I appreciate it a great deal. 🙂
You’re welcome, Robin & Anthea. 🙂
Kris, thank you for this continuing great advice. Your posts and Dean’s are the best education out there right now.
You, Dean, Jon and Mike are all pushing this “new world order” in publishing, but I’m not entirely convinced you have read all of each other’s posts. The four of you have a couple of inconsistencies…
For example, you lament in this article that “the agent is working for themself”, while in other posts, you and your comrades in arms argue “the author doesn’t work for the publisher”. Of course not — it’s a business and people represent their own interest too and negotiates accordingly. And your partners are no more altruistic than you are.
For example, the “past termination” clause you reference in this post has been twisted from its original purpose — to stop you from using Agent A to get a book deal, and then firing them immediately after the deal closes (or just before it closes) and stiffing them on the fee. Or going to the Grass is Greener Agency with a done-deal ready to go and giving them your 15%. And just as you have anecdotes about egregious practices, the agents can trot out an equally long list of former clients who they felt they bent over backwards for, only to get shafted. So, not surprisingly, they put in clauses to protect themselves — the REAL issue (as noted in other posts) is that these “shield” clauses are being now used by other entities as “sword” clauses.
In the end, I think almost all of your concerns with agents comes down to a simple problem — commissioned sales. It’s also why you’re seeing rebellion in other markets where the ability to do the basic aspects of the job of the entity is now open to anyone. Real estate agents are losing clients who want to sell their homes themselves; car buyers are using “lemon guide” templates to send “take it or leave it” offers by fax to multiple car dealerships and bypassing sales people; and some estributors are saying “give me a flat fee and I’ll package your book”.
Interestingly though, you’re starting to shove those agents etc into boxes that look a lot like “work-for-hire” situations that authors despise.
PolyWogg, I’m not “lamenting” that an agent works for himself. Yes, it’s a business, but I do expect someone I do business with–who claims to have my best interest at heart–to do what they’re hired for. Agents are unregulated. Lawyers are regulated. That’s the real simple difference. I can declare myself an agent today if I want to, put all those egregious contract clause into a contract, and earn a great deal of money–and no one can stop me.
The only recourse a writer has to not sign those clauses and to not hire those agents in the first place.
I write this blog for writers, not for agents. If I were writing for agents, my posts would be all about how good those clauses are and why you should use them.
Dean, Mike and I have all done work-for-hire. There is nothing wrong with it as long as you know what you’re signing. Most writers do not.
Commissioned sales aren’t the problem, by the way. The problem is that agents are no longer necessary in the modern market. The agents are trying to save their business. And I don’t see why writers need to hire them.
What Dean and Mike and I are all saying, often at the top of our lungs is this: Writers! Learn your own damn business. Do your own business yourself. Be business people. Stop expecting someone else to do everything for you–and stop complaining and being surprised when they rip you off. They’re ripping you off because you’re an easy mark. Learn your own business! Now! Or you won’t have a career at all in this modern era.
I hope that was clearer.
Thanks once again for an insightful post. I’d add–Writers, please make sure you go to an IP attorney if you need help. Current agency and publishing contracts are such a convoluted mess that most contracts attorneys have no clue of what they are doing.
The more I hear, the more I’m so glad I’m publishing my own work.
What Suzan said. IP Attorneys only. Not contract attorneys (didn’t know there was such an animal. I thought attorneys handled only the contracts in the attorney’s specialty, like a corporate attorney). IP Attorneys. Writers still need advice. Just get it from someone who has no skin in the game. In other words, a neutral third party with expertise who won’t take a percentage or rights away from you.
Kris,
Thanks for the continued advice. As I really like my toes, I think I’ll be keeping them completely out of agent waters…at least for the time being. It’s really sad to see this business I had hoped to join has become what most big organizations and leaders have in the US over the last 20 years: nothing but greedy, soul-sucking, monsters. Can you say Music Industry? Politicians? Wall Street? Big Oil? Big Conglomerate CEOs?
So disappointing. With any luck, this turmoil will expose these vampires to the sunlight of fair business practice.
A. J. Abbiati
I hope so as well, A.J., but the turmoil only seems to be making things worse. And sadly, writers, who have control for the first time in their lives, are giving it all up for the sake of “convenience” and “this is what we’ve always done.” (sigh)
One question (from a slightly freaked out new writer!)— If we’re supposed to avoid agents, how are we going to get published and build a following?
Most of your advice has been for established writers, who already have fans or followings. I mean, sure, if you have a new Retrieval Artist book out, I’m not going to care whether it’s been self-published or not, because I know I like your work.
But how does a fledgling author break in and gain an audience WITHOUT an agent? (Well, there are a few houses that still read their slush, but at least in my genre (YA) a lot of them have outsourced the slush reading to the agents……..)
Do you, or any of your readers, have any advice?
Thanks! (Also, thanks for the upcoming retrieval artist novel– they’re so much fun! 🙂 )
Once again, Deirdre, you don’t need an agent to sell to New York. That’s a myth. Read this post from Dean: http://www.deanwesleysmith.com/?p=357.
I think your posts are important ones for every author, unpublished or otherwise.
I was fast coming to that conclusion. I write for the larger epublishers, and I’ve always said that I would want an agent to work with New York publishers for me. Not the ebook business, because I know my way around that.
Now I’m wondering. After 40 titles released, do I really need an agent at all? It might sound arrogant, and I could do with all the help I can get, but there would be absolutely no way I’d sign clauses like the ones above, nor would I give my backlist to an agent, because of the conflict of interest involved.
If you join the Society of Authors, for £90 they will vet the contracts for you. If I get a contract with a NY publisher, I’m thinking that is a better route. Many big publishers are still agent-only, which is a bit of a shame. Any idea how we get around that one?
Lynne, it’s not arrogant to run your business your way and to trust your own abilities. Of course you don’t need an agent. That’s why I’m telling writers not to have one right now during the transition.
As for agents selling books, of course they don’t. They never have. That’s a myth. Just mail the book to a publisher. Someone has to look at the manuscript or they might miss the next J.K. Rowling. You might get a rejection that says, “Don’t send unagented material,” but that’s because it’s the only rejection the editor has at hand.
Dean covered this at length in this post: http://www.deanwesleysmith.com/?p=357. If any of you believe you need an agent to get a book to New York, read that post of Dean’s Right Now.