I am writing this blog while I am both hopping mad and absolutely dumbfounded. I have just had an interaction with a creative artist’s representative that has cost me at least a week of my working life, dozens and dozens of e-mails, and hundreds of dollars. This interaction might end up costing me hundreds more, but there is a distinct possibility that, in the end, I will make hundreds of thousands of dollars
All because of one person’s stupidity and ignorance of the law.
First, let me tell you that I’m writing this on the day that the most unbelievable stupidity occurred, the day that I am now turning everything over to my lawyer to handle from this moment forward. I am not publishing this blog for weeks, maybe months, maybe a year or more.
In other words, while I am writing this as if it happened this week (and for me, it did happen this week), you are reading this blog at a completely different time. I’m doing this so that the ignorant idiot I’ve been dealing with doesn’t know I’m talking about it (yes, I’m going to call the idiot “it” and its associates Frick and Frack will also be “it” or maybe “they”), because I think what happened here is a prime example of a teachable moment.
If I can divorce the moment from the details of what happened to me, and get to the core that applies to all working writers.
First, the personal experience—in vague terms.
There are many times in a writer’s career that she works with other creative artists—actual visual artists, screenwriters, comic book writers, translators, musicians, game developers and more—who develop derivative work based on the original property. These derivative works are governed by copyright law.
If someone wants to create a derivative work, that someone needs permission from the rights-holder for that work. The permission must be granted legally. There are different forms for the permission—a paper contract, an e-mail between the two parties, a user agreement on a website (fan fiction sites licensed by the copyright holder, like the ones for the Star Trek properties use this method) and so on.
Most sub rights sales are for derivative works. A translation of a novel into another language is a sub right sale, and it is also a derivative work because the words are different, but the story is the same. The work is a translation of an existing work; it is not the existing work. It was derived from it.
In the definition of derivative work under the copyright law, the statute says in part:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
Once the derivative work exists, then the maker of that work needs the original copyright holder’s permission to do anything with the derivative work. If the Derivative Work Maker does not get the copyright holder’s permission, then the work of the Derivative Work Maker is dead.
Long ago and far away, I worked with a creative artist’s representative who was also (briefly) my representative. I gave permission for a derivative work based on one of my works, to be used for six months only. My agreement was with the representative, not with the derivative work’s maker (DWM). I presumed that the representative had a separate agreement with the DWM, which also lasted for six months.
Nothing came of this, except that I made a great deal of money. Like so many things in the sub rights category, someone had a good idea, put some money into it, realized the project would not get off the ground, and went on to other things.
Fast forward several years. I get contacted by DWM’s new representative, who wants to send DWM’s old derivative work into the same marketplace again. I state that I will not permit this, unless we have a written agreement and money has changed hands.
The representative is shocked! Shocked! that I would demand funds and a legal agreement. Then I tell the representative that I have years of experience in all of the businesses this representative (whom we shall now call Frick) deals in, and if Frick wants any cooperation from me on this property, I need a legal agreement and money.
Frick makes an insulting offer. I say no. Frick promises to have a new offer shortly.
I hear nothing. Then I get a weird e-mail from Frick saying that someone else in the industry “is close” to paying me. I realize that Frick has been shopping this property without my permission and without an agreement in place. I demand that Frick come up with a legal agreement and money right now.
I hear from a person who identifies itself as a lawyer. At that moment, I assume said lawyer is attached to Frick and Frack, the representatives of DWM. Instead, I learned—today—that said lawyer represents DWM and doesn’t represent Frick and Frack at all.
Let me simply say that DWM should fire this idiot immediately.
Idiot lawyer is argumentative and nasty, refuses to deal with me by e-mail “because that’s not how it’s done in our industry” and demands to talk with my representative who, idiot lawyer believes, “will understand what I have to say.”
Well, I am now good and pissed, insulted, and on top of that, have three representatives are actively trying to sell a derivative work from my work without my permission. I tell them to stop marketing the work immediately. I tell them the negotiations have broken down and remind them that they do not have any rights in this work whatsoever without me. Since they are unwilling to pay for the privilege, they cannot market the work any longer.
Meanwhile, I’ve been consulting with my attorney all along. My attorney, appalled at these idiots, tells me to be firm with these people and make them go away.
I was, I am, and I get an astonishing letter in return.
The first letter, from the idiot lawyer, says that the representatives and DWM will remove all references to me or the title of my work on the derivative work, and will continue to market the derivative work.
My lawyer, appalled, tells me to remind them that this work is registered with the Copyright Office, and we will sue.
I do tell them this.
Frack contacts me, tells me that name removal is done all the time in their industry, and I shouldn’t worry my pretty little head about it.
I again in e-mail tell them they do not have the rights to this.
Why am I doing all this, and not my lawyer? Because my lawyer costs hundreds of dollars per hour, and I am already losing money on this. All I am doing is reiterating that I do not agree to anything and that these people do not have rights or permission to this work in anyway. I am doing so in e-mail, which is getting forwarded to my lawyer. We have a paper trail. I am doing nothing more complicated than that. I am saying this: No. No. No. No.
Then I get today’s astonishing e-mail, in which the lawyer—the lawyer—for this DWM says that they will continue to market this derivative work without my permission. I can let them do it or “prove that there are damages.”
Ack! Ack! Ack!
The idiot lawyer doesn’t know copyright law. I don’t have to prove damages. The damages are statutory, provided that the original work is registered with the Copyright Office, which my work is. I have actually informed these people of that fact. And to make it worse, copyright law states that if I can show willful infringement—which means that they knew the work did not belong to them and they infringed on it anyway—I’m entitled to even more damages.
Idiot Lawyer put on the fact that they were going to steal this property from me in his reply to my latest cease and desist e-mail. Which proves right there that they plan to willfully infringe on the copyright.
My lawyer is actually salivating. Should the derivative work receive any money at all for any reason, we have grounds to go after Frick, Frack, and Idiot Lawyer.
Unfortunately, we will also have to go after the DWM as well.
I am convinced that all DWM knows about me is that I am an unreasonable bitch. I am sure that DWM’s representatives have informed the poor schmuck that I won’t cooperate, but they have resolved the problem anyway.
For DWM’s sake, this derivative work had better not make any money. Because even if DWM gets a payout in very large figures, DWM’s representatives have guaranteed in writing that I will get a large portion of that payout ( if not all of it). They have done so with their stupidity.
Okay, I’ve gone on here much too long because I’m mad. But here’s the thing: for the last year or so, I’ve been dealing with other people’s representatives in one way or another. Sometimes it’s on my sub rights and derivative works. Sometimes it’s connected to other projects I’m doing that aren’t writing-related.
In most cases, when I have dealt with a representative of another creative person, that representative has cost the creative person money or has jeopardized a good deal. Or—and this is the most common—has negotiated worse terms for their client than the terms being offered.
Back when Dean and I were doing Pulphouse, kind little writer that I was, I would tell the representative not to ask for that or I would personally contact the creative artist and put a bug in their ear about their representation.
Part of the reason that Pulphouse had no assets to sell when we got in financial trouble was that we bent over backwards to be fair to other creative types. We had nothing to sell. I learned that lesson. Now I bite my lip and write posts like this.
People hire bad representation all the time. Let’s take this out of the realm of the creative for a moment. Every week, it seems, you see an article about some movie star or athlete who is suing their financial advisors for bad advice. Or you read in the paper about legal cases being appealed because of “ineffective assistance of counsel.” Yes, that’s a legal term based the Sixth Amendment to the Constitution. It means what it says—the case is being appealed because the lawyer for the defendant (usually) was stunningly, appallingly, provably bad.
Ignorance of the law, by the way, isn’t part of ineffective counsel or DWM could go after idiot lawyer for that. DWM just hired a lawyer who had the wrong area of expertise or is so arrogant that it never bothered to learn its job. (I vote for never bothering to learn.)
I have been in the same position as DWM almost every single time I’ve hired an agent (one exception only). I discovered only after firing some of them just how bad my representation was, and how much those people interfered with my career. None of them, to my knowledge, invited someone to make me party to a lawsuit like Idiot Lawyer just did, but note that I say “to my knowledge.” I’m pretty sure DWM doesn’t know that my lawyer and I now have a file on DWM that we are prepared to use when/if idiot lawyer actually makes good on its threat.
I was planning to write a blog on this during the month the events were going on, before things escalated, because this incident also marked the first time I’d ever experienced a reaction that Randy Tatano, who works as a freelance broadcast news reporter, mostly for NBC, described in my Freelancer’s Survival Guide . I’m going to reproduce it here (and note, Randy gave me permission to use this in the Guide and on this site):
Well, on the topic of hiring someone to negotiate, a news anchor I know hired an agent to negotiate her next contract. Her agent took such a hard line that management called her bluff and she ended up out of work. She had absolutely no desire to leave but apparently didn’t convey that well enough to her agent.
On the other side I was trying to hire an anchor once and the agent was so incredibly obnoxious I moved on to someone else. I was trying to negotiate and meet the guy in the middle but he wanted to play hardball.
What surprised me about these instances is that both anchors were extremely likable people, yet hired agents who were so difficult to deal with. And, as you pointed out so well Kris, anyone who negotiates for you needs to know exactly how you feel.
I am pretty creative-artist friendly. I like working with others, and I am willing to make a lot more concessions than I probably should. But Frick, Frack, and Idiot Lawyer so angered me that I didn’t give a rat’s ass about DWM. DWM could have called me and tried to talk to me about this problem, and all I would have said was, “Hire new representation, dude.”
I had never before been on the receiving end of a representative who was so slimy, so smarmy, so unlikeable, that I refused to do business with that person, no matter how much I wanted to work with the client. And that was before the Idiot Lawyer told me it would steal from me.
Well, I’ve been there now, and believe me, now I get it.
In the past, I had been the client of the bad representative. One of my agents caused similar problems for me. Several editors kindly told me that no one liked my agent. I figured good: that means my agent is tough. (sigh) Another writer (who I later learned had fired the same agent) pointed out that the agent had a new assistant every year.
As a person who has owned several small businesses, that should have been a red flag for me. The agent couldn’t keep assistants. But it wasn’t. I was lost in the myths that a writer needed an agent. And I believed this agent was a good one. Nope.
Well, not true. That agent still has a reputation for being a good agent. I don’t know where it comes from because those of us who have gotten rid of said agent know it is not true.
I am now making a lot more money on foreign rights than I did with any agent. I am making 100% more money for my Hollywood rights than I did with any agent, because the agents screwed up the deals. I am making 100% more money in audio and in a dozen other sub rights because I’m actually negotiating and making those deals as well.
Just this last week, I spoke to a writer friend, a New York Times bestseller, whose agent just sold audio rights to a company I’ve worked with. The agent got this writer the exact same deal that I got without an agent (and without a New York Times bestselling series), and will now take 15% of that same deal in perpetuity.
In other words, I’m getting paid more for doing the work myself. How much work was it? Three e-mails. Three. That’s it.
Is doing the negotiations myself worth moments like today? After all, an agent would have dealt with these idiots from day one. The problem is that almost every single agent I had (with one exception) would have given Frick and Frack the rights to this property for free, without consulting me.
That’s why Idiot Lawyer wanted to talk to my representation. Because I was a harder negotiator than any of the agents I had hired. What Idiot Lawyer didn’t understand was that had my lawyer been on the phone, the conversation wouldn’t have gone Idiot Lawyer’s way. At all. Because my lawyer works for me, and unlike all of those agents, my lawyer knows it.
Some people believe that if a writer has a six-figure or more deal on the table, then it’s okay to hire an agent for that one project to shepherd things from here to there, to use contacts to talk with the sales force, to manage.
I disagree. If a writer feels she needs someone to step in and do those things, then she might want to hire someone. But I see no problem with the writer doing that herself. It’s better to do so.
Why do I hold that opinion? Because of today’s experience?
No. Because of an experience I had with three different high powered agents. One had just gotten a Big Name client. I was in the agent’s office as the agent was consulting on Big Name Author’s new book title. The agent looked at me, grinned, and said, “Big Name always writes smut, so we want a smutty title for the book.”
“Smut” was not being used nicely here. The agent told me this to impress me with the fact that she had better literary taste than this, but the “smut” made money. Besides, Big Name did not write smut. Big Name wrote urban fantasy with some sex in it.
I figured that agent was being chummy with me, a client, but the moment rankled. And then got worse as another person came into the office. “What do you think of this title?” the agent asked the other person. “Is it trashy enough to appeal to Big Name’s readers?”
Breathtaking. I left that office wondering what nasty things the agent said about my work behind my back.
Here’s the second incident: I met with the president of a boutique agency. That president only had two clients, neither of whom were me. I was with a different agent in that agency. The president was exceptionally rude to me, essentially telling me that I wasn’t a client worthy of her time, and then told me to leave.
At the time, my 15% paid for two of the in-house employees at that agency, plus benefits.
I left all right. I left the agency entirely.
Finally, a (not-so-dumb) assistant of an agent I hired mailed me the cover letters that had gone out to editors with my latest novel. The agent said point-blank in those letters that my work wasn’t up to snuff, but I had forced said agent to mail the work anyway. Agent was sorry for bothering the editor with it all. Implied in the letters? Please reject so that I can get my client off my back.
This was not some random small-time agent. This was another big name agent at another big name firm.
The damage done to my career by the people who theoretically “managed” or “handled” my career was astonishing. Even more so when you figure they had an economic interest in doing well.
But I’ve only seen more of this kind of thing since I started the blog. So many writers have sent me agency agreements or told me stories of things they discovered that their agents had done wrong.
I recommend attorneys to handle negotiations or at least review legal agreements. But the person I had the most trouble with today was a lawyer—and it was awful.
How do you make sure you have a good one?
First, realize you’re hiring your lawyer for a single job only. Some lawyers are good negotiators. Some are good litigators. Some are good at reading certain kinds of contracts. Some are good at estates.
Hire the lawyer for the job that you need, and make sure that lawyer has an expertise in that area.
Clearly Idiot Lawyer didn’t know copyright law or Idiot Lawyer wouldn’t have written half the things it did in e-mail. Idiot Lawyer also did not copy its client on those e-mails, another no-no in my book.
Second, learn as much about this stuff as you can so that you can make an informed decision when you hire a representative. If you don’t think you’re good at working with people, if you don’t want to liaison with your traditional publishing house on your six-figure deal, then make sure you hire a good person for that job only for a flat fee, and fire that person if they don’t do a good job. Trust, but verify. Make sure they’re doing the job you want by checking with the people they’re supposed to be working with. You’ll hear if things are going badly.
Third, you license copyright. If you don’t know what that means, if you don’t understand why my lawyer is so happy about the paper trail above, then get a copy of the current Copyright Handbook right now. Now! Don’t delay.
Finally, if you end up having success in this business, you will have to hire lawyers, accountants, managers, and all other manner of people to work for you. Hire them when you absolutely need them on an hourly or flat-fee basis. Do not hire them when you start out. If you haven’t made a dime as a writer, why are you hiring an agent for a percentage? Don’t bring your best friend from college in on any deal because he went to law school. He might have studied to become a real estate attorney and he knows nothing about publishing or copyright or anything else. Lawyers, accountants, managers and all other manner of professional service people specialize. Hire the right person for the right specialty.
DWM clearly did not. I’ll wager DWM got Frick and Frack and celebrated because they took him on. I’ll also wager that DWM never researched Idiot Lawyer either. If DWM knew what Idiot Lawyer was writing in DWM’s name, well, I would hope that DWM knows enough to realize that Idiot Lawyer just threatened to steal my work and dared me to stop him.
But I wouldn’t bank on that. I can almost guarantee you that DWM knows nothing about business or copyright or anything else associated with the freelance work DWM has started to do. There are too many signs that DWM knows nothing—the same signs that twenty-something me was giving off before I realized that I had to monitor my representatives, before naïve me realized that representatives could do bad things or not even try.
Once again, I’ve been confronted by the school of hard knocks. Only today, it’s the potential hard knock that will go to DWM and I will not hesitate to deliver that knock if need be.
But DWM hired bad representation, doesn’t monitor said representation, and has no idea what said representation is doing in DWM’s name.
I’ve been there. I escaped.
I doubt DWM will.
I hope you all will be more sensible than both of us. And realize that you’re not playing a game here. You’re not just trying to be published or trying to get the best deal or trying to get noticed.
You’re also dealing with contracts and copyrights and courts and things that could have a lifelong impact on you and your family.
Keep that in mind whenever you bring anyone new into your business. Particularly if you ask them to represent you.
“The Business Rusch: “Good Help” copyright © 2013 by Kristine Kathryn Rusch.