Business Musings: Agents and Estates (Contracts/Dealbreakers/Estates)
Last week, I posted a blog on Prince’s lack of a will, and talked a little about estates. Of course, some people (who apparently never read my blog) asked me if agents should handle a writer’s estate.
No, agents should not.
Before I even get to the issues below, let me tell you this: Many literary agencies are small businesses, just like your writing business is. Many agents have prepared no better for their deaths than Prince did for his. I’ll touch on this later in these posts, but take a look what this post from 2012 has to say about the Vicinanza Agency. Think about that, before you decide to hire an agent for anything, let alone for managing an estate.
I wrote some of this post long before Prince died, and I’ve been waiting for the right moment to share it. This is the right moment. Here goes:
It took forever to get my husband to convince our good friend Bill Trojan to have a will. Bill had one of the most amazing collections of collectables I have ever seen. He had also been single and frugal for the twenty-five years I’d known him. He owned his house outright.
Dean constantly nagged Bill about writing a will. And Bill would always respond, “What do I care about what’ll happen to my stuff after I die? I’ll be dead.”
As I’ve aged, I understand where Bill was coming from. I have a lot of stuff, more than I can fathom, particularly considering I moved to Oregon nearly 30 years ago with Dean, my cat Buglet, and most of my possessions stuffed into a LeCar. I did ship 20 boxes of books, but that was it. Not even enough for a small U-Haul trailer, let alone a van.
Now, I have several buildings worth of things although, to be fair, much of it came courtesy of Dean (a major collector) and Bill, who bequeathed part of his collection to Dean and me (maybe as revenge for all the nagging).
Yes, Bill ended up with a will, thank heavens. He bequeathed a goodly portion of his cash to a major charity in his hometown, all of his art and his pulps (and there was a lot of both) to another friend, and the rest of it to me and Dean. Bill also made some promises that he hadn’t put into a revised will, and Dean (as executor) made sure those promises were upheld as well. The comic book collection went to a comic book collector, and some more cash, plus the television and other electronics (and valuables) to one of Bill’s neighbors.
Dean was one of the best executors I’ve ever seen. He was ethical, above-board, and he went the extra mile—so much so that it hurt his health.
Dean is rare, and I’m not saying that because I’m his wife.
I’m saying that because I’ve been dealing with estates for the past year.
Full disclaimer: I am writing this blog concurrently with the events I mention here, but I’m not publishing the blog until some point in the future. (In fact, when I finish, the blog will go into a file marked “future blogs”) When you read this, you’ll have no idea how long ago I had these experiences or which estates I’m referring to. Because my estate work will continue after I finish this blog, and I’m sure I’ll have other stories to tell, probably hidden in that same “future blogs” file for some future date.
(Bloggy time travel. Who knew?)
Anyway, these estates I’m dealing with belong to writers. As many of you know, I’ve been working a series of reprint anthologies aimed at reviving the history of the science fiction field. Because I want to reprint stories published as early as the 1930s and 1940s, I am almost by definition, dealing with estates.
I’m also doing anthologies that mix new and reprint fiction, which also leads me to estates.
Before I started these projects, I had only a tangential interaction with writers’ estates. When Ralph Vicinanza who was a major (unmarried) agent died suddenly, his entire estate went to his sister, a clueless woman who had no idea how to run a business, let alone a literary agency.
Behind the scenes, I did a lot of hand-holding with heirs to estates handled by that agency. These heirs were brilliant people, many of whom had grown up around Grandpa the Writer or Mommy the Writer, but never learned the business of writing. The heirs often made their own money at super high-powered careers of their own, but they were lost when it came to publishing.
Since Mommy the Writer was famous and quite prolific, the estates were as hard to wrap your arms around as Bill’s estate had been. Tens of thousands if not hundreds of thousands of tiny pieces needed to be categorized, valued, and traced.
It was daunting work. Impossible, really, for someone who already had a major career, children, and a life of their own.
So, if you had asked me five years ago, what you the writer should do when it came to who should handle your estate, I would have told you this:
- Choose someone to manage the literary part of your estate who has an interest in publishing, particularly the publishing business.
- Make sure that person gets a percentage of what she does to manage the literary estate.
- If you don’t have any heirs, pick a charity to receive the money from your estate, and then designate a representative to handle the management of the estate. Make sure the charity receives enough money so that if the estate is mismanaged (and they often are), the charity will complain and a new representative will be appointed.
- If you don’t have any heirs or you don’t have any smart heirs, and the charity you’ve chosen is outside of the publishing industry, then get a literary agency that has a long list of literary estates to handle your estate after your death.
You’ll note that I have put a line through point four. I do so because some of you will ignore the rest of this post and think that I am advising you to hire an agent to handle your estate.
Yes, I used to give that advice.
And—God as my witness—I was so wrong that I’m embarrassed by it.
Another disclaimer: As I worked on these projects, I encountered two agents who represented their estate clients exceedingly well.
One, an agent of longstanding, handled several clients at one time, was a good negotiator for them, was friendly, got me information, and didn’t make me feel like I was bothering that agent by even making contact. (You think I’m kidding; I’m not.) For the sake of simplicity, I’m going to call this agent The Good Agent.
I’d been warned about the other agent. I’d been told that agent was a hard negotiator, that agent always raised the price, and that agent was difficult to work with.
Turned out, that agent was easy to work with, as long as I expected a tough negotiator. I went in with a lower offer than I would have otherwise, the agent negotiated to the top of my pay scale, and we were done.
From then on, everything went like clockwork. That agent was probably the most professional person I worked with in all my dealings. I was relieved by that.
Most of the other agents—well, I have some other blog posts coming, about agents and how they handle current clients, living clients. The things I’ve experienced are eye-rolling at best, devastating at worst. I had no idea how bad things could be.
But on the estate side, I have now worked with a lot of agents, many of them Big Name Agents. The Big Name Agents who handled multimillion dollar clients as well as estates all assigned the estate matters to assistants.
The assistants were so incredibly clueless that I actually felt sorry for them. The assistants didn’t know who I was (not a big deal to me), didn’t know the names of the various companies I was working with (some of which they should have known), did not understand the contract terms and asked me about them—which you should never ever ever do in a negotiation.
If you’re negotiating, you shouldn’t let the other party know the depth of your ignorance. Seriously. Think that through for a minute. These assistants have bosses. They’re the Big Name Agent, hired (in theory) for the prestige and for the Agent’s experience in all matters. And the Big Name Agent did not use that prestige or that experience in these negotiations. The Big Name Agent was too busy to be bothered – for a client.
This is quite disturbing to me.
The worst thing I encountered from these agencies, though, was that no one gave a shit about the estate or the writer. Seriously.
Again, a disclaimer: The Good Agent discussed the stories with me, knew exactly where the stories had been previously published, and had read them. Not only that, the agent liked them.
Without consulting a computer file or taking a break to look anything up, the agent knew where those stories were previously published and also knew whether or not an electronic file of those stories existed. That detail will become important in a minute.
But let me also add that in working with more than two dozen agents, that agent is an exception, a big major exception.
So here are the problems I ran into.
- Most of these agents had no copy of the story. They told me to get the story from wherever. If I asked for an electronic file, they cavalierly told me there wasn’t one, and I should scan it myself. They often didn’t even recommend a place to scan it from.
I found several of these stories online, reprinted in online publications, and I copied from those free online publications rather than scan. I hired a copy editor to go over the document I made and compare it to a collection of Famous Dead Author’s stories. I always took a collection that had come out when Famous Dead Author was still alive, figuring Famous Dead Author had proofed that collection.
In one case, my copy editor found so many discrepancies that she said it took her a very long time to make sure the files matched.
Frankly, it’s not my job to make sure I have the right version of the story in my anthology. It’s the author’s job to make sure the story is the right version. If the author is dead, then the estate should make sure the anthologist has the right story.
Only the Good Agent had estate-approved versions of the stories I requested. In fact, the Good Agent mentioned in e-mail that one of the stories had been approved by the estate down to the very last comma. Yay! That was what I wanted.
- Several agents didn’t handle the rights to the short stories of their Famous Dead Authors. The agents had farmed out the rights to places like permissions companies. Permissions companies used to specialize in coordinating permissions through publishing houses, not working for agents. Yet somehow, through some convoluted process, those companies ended up handling the rights for Famous Dead Author’s short stories (but not the novels).
I found this several times. Most of these outside non-agent companies treated me—a person who wanted to license a story—like mud on their shoes.
In one notable case, the man handling the permissions was a complete and utter asshole. He did not respond to my e-mails. He did not return my phone calls.
(Please note that some agents were that rude as well. It took a lot of persistence to get ahold of them.)
Finally, late one Friday afternoon, I called the company after having made several other phone calls. I didn’t expect anyone in the East Coast office. I just figured I’d leave another message.
At this point, I wasn’t even sure that the permissions department had received my e-mails or logged my calls.
I reached this man. He was exceptionally rude from the start, which I figured had something to do with it being late in the day on Friday. I told him I wanted the story for my anthology.
He told me that we would never come to terms. Then he told me he hadn’t gotten my e-mail, even though from the sentence he had uttered earlier, he had. He knew what my terms were before I had verbally reiterated them.
He told me that my anthology was not worth his time. Clueless me, I’m still thinking this guy is having a bad day. I said, Surely we can negotiate something here. I think this story is important to this anthology.
He then quoted me a price which was exactly half my advance for the entire anthology. Thinking we were negotiating in good faith, I said that the price for the story was high and that I was prepared to offer one-eighth the price he had listed. I figured he’d come back with one-quarter, and we’d be happy.
He then told me again that we couldn’t come to terms and said, “because, as I said, the price for this story is…” and he gave me a brand new number, double the price he had initially listed.
Realize that I take concurrent notes when I’m on the phone with anyone I’m doing business with. I had already written down the first amount.
I said, “That’s double what you had just quoted me.”
He said, “Keep pushing me, and I’ll double it again.”
I was shocked and breathless. I had never encountered this before. I said, “Your client belongs in this anthology. Surely we can come to terms if we negotiate in good faith.”
“I don’t think we can negotiate in good faith here,” he said, “and it wouldn’t be any good for my author to be in your genre anthology.”
“Your author is a genre author,” I said. “You might want to think about that.”
And then I hung up, because I was about to launch into a tirade.
I bent over, furious, and thought about pounding something into submission. Instead—fortunately—I decided to write to an editor acquaintance who had included this author in an anthology recently, and ask for the correct way to approach this super-dooper asshole in permissions.
The editor acquaintance wrote back a 3,000 word screed against this asshole, said that the editor had put up with the asshole’s nonsense to get the author in the anthology.
Much as I love the author, I wasn’t willing to put up with the bullying, so that author—to date—has not been in any of my anthologies, much as I love the author’s work.
I have contacted the agent on the estate and told this story. The agent has promised me this will get resolved. To date, I have no idea if the agent has solved the problem. Frankly, I know the agent. I doubt the problem has been solved.
- Agents (and these other representatives) are rude and dismissive.
The super-dooper asshole wasn’t the only creature of his type that I have encountered in this process. He was just the worst.
I’ve had a lot of representatives — agents, their assistants, and these permissions people—be exceptionally rude to me when I bothered them with a request.
Realize here that I’m offering money. I want to give Famous Dead Author visibility. The visibility will keep Famous Dead Author in the discussion, will introduce Famous Dead Author to new readers, and will end up selling more copies of Famous Dead Author’s already in-print works.
I’m actually doing work the estate would—or should—support. But the estate itself doesn’t get contacted, and the intermediaries are dismissive at best.
- The representatives hired by some of the estates did not know who controlled the rights to the story I wanted.
Again, I’m not kidding.
Here’s a situation I encountered over and over again. After much searching, I finally found out who handled the estate. Searching often meant asking my editor friends, or the writers organization for that genre, or writing to someone on Famous Dead Author’s website. Often, all of those people would point me to the wrong representative.
One representative got pissed at me for contacting someone else in the office, even though three separate people (and a website) identified that other agent as the agent of record.
So…I finally find the agent of record. In theory. I ask for permission to license the story for the anthology or the project I’m working on. (Sometimes I was dealing with nonfiction.) The agent of record would seek approval from the estate. And then….
I swear to God I’d find myself in the twilight zone. Agent of record would tell me that the estate wants to do this deal, but I needed to contact some permissions company instead of the agent. I would contact the permissions company which would negotiate with me, then tell me I had to talk to some other representative from some other company. That representative would send me to yet another representative who…wait for it…
Would send me back to the agent of record.
In one case, all of those representatives represented a separate piece of the single short story. One represented English language print rights, another French print rights, another electronic rights.
Realize that I encountered this several times.
One instance was for an author whose estate spent years in litigation as various heirs argued over it. The heirs ended up splitting the estate into little bits. I don’t know if the reason I had trouble with that story was because of the heirs or because of the settlement or because of some other reason.
But the other estates this happened on? They should’ve been straightforward, and they weren’t. A lot of different companies had their fingers in this little short story pie.
I have no friggin’ idea what kind of shit-ass contracts someone signed after Famous Dead Author left the planet, but I can guarantee you that no one was paying attention to contract terms when they did so to set up these arrangements.
I can also tell you that no representative seemed to care about how stupidly baroque all of this was. And I’ll wager you cash money that no one has ever told the estate what the hell is really going on.
- Agent doesn’t care and/or doesn’t know that Famous Dead Author’s works are all out of print and unavailable. Yeah, I can’t believe it either, but when I mentioned it to a few of the agents about their client estates, the agents were shocked to realize that nothing had been in print for years.
I could go on. I haven’t even touched the surface of some of the stupidity I’ve been dealing with. It’s appalling.
Would this be better if the estate has hired a literary lawyer to handle all of its business dealings? I don’t know. Lawyers have varying degrees of competency.
But at least lawyers are licensed and subject to regulations that govern how they conduct their business. If they fail at their business, there’s actual consequences for those actions.
I’m guessing—and I have to say guessing because I don’t know—that a lawyer handling the estate’s business would be a hell of a lot better than any agent or agency. Or permissions company or publishing company.
One thing I can say with complete certainty is that the estate should hire a dedicated person (not an heir) to keep track of all the rights and permissions, handle the licensing, and make sure that the situations I listed above don’t happen.
That person should be paid by the estate. That person should probably get a salary plus bonuses if that person keeps works in print and makes money for the estate.
How does such a thing work?
I don’t know.
Should you as a writer care about this for your estate? If you want your work to live beyond you, you should.
Because…refer back to the case of super-dooper asshole. The Famous Dead Author in question there is one of the most important authors of the 20th century in a particular genre. One of the greats.
And I’ve opted to not reprint any of Famous Dead Author’s stories until super-dooper asshole no longer handles the rights—as if super-dooper asshole would even deal with me, which he has proven that he will not.
I am not the only editor to make that decision. In fact, several other editors in that genre have made the same decision. I only know of two editors who are willing to take on super-dooper asshole to include that particular Famous Dead Author in their anthologies. God knows how much money it’s costing the estate, and worse, God knows how many other authors are being shorted so that super-dooper asshole can feel like he won some imaginary negotiation game.
I hate to tell you this: You will die one day. If you’re lucky, you will leave a strong fiction legacy.
If you want that legacy to survive, you have to plan the future of your estate. You have to put it into hands as ethical and competent as Dean’s were when he handled our friend Bill’s estate.
If your attitude is the same as Bill’s was initially—what do I care? I’ll be dead — then make no plans. Or figure your agent will handle it. Or someone will deal with it.
Your legacy will die, like that Famous Dead Author’s legacy is dying.
All that work you’ve done to write art so you can be read 100 years from now will die with you.
I hope to hell this blog scared you.
Because dealing with incompetent assistants and venal assholes has scared the hell out of me.
And I thought I couldn’t be surprised by anything in publishing any more.
I was wrong.
I promised I would use the news occasionally in these contracts/dealbreakers posts. Prince’s death caused me to write about agents and estate planning out of order. I’ll be back in order in the next week or two.
If you’ve learned anything in this post or the previous posts, please consider supporting the blog with a donation. The donations keep me writing week after week, and funding the research (not everything is on the internet—yet).
Thanks so much!
Click paypal.me/kristinekathrynrusch to go to PayPal.
“Business Musings: Agents and Estates,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/VadimGuzva.
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The more I think about it, the more it seems the smartest way to do this is create a corporation that the writer owns outright, transfer his works to it, and use it as the means by which he manages his career while he’s here. Then bequeath the corporate stock to his various heirs after he passes, with the proviso that the corporation’s sole purpose is to keep the works in print and earning money. But all permissions and rights would come through the corporation.
Sort of like L Ron Hubbard seems to have done with Galaxy Press. You guys could probably do that quite easily with WMG.
I’m sure I’m missing something in my analysis, but it sure seems a better, more straightforward, way ahead than the shenanigans you’re talking about here.
Yeah. That’s what we’re working on. 🙂
A few words on how to do this properly from the very first book self-published would be useful, or a reference link.
At a minimum, a spreadsheet on the books, with ISBN/ASIN, Publication date, and a column for rights granted and when the permission expires. It’s only been four months, so I still remember everything and have a copy of the information. I, of course, plan to write more, and to not leave a mess to the heirs, but the road to hell…
Also, when books go out of print and the rights are uncertain or ignored, the price gougers come out. Trying to find books by Karl Edward Wagner and Manly Wade Wellman for anything like a reasonable price has been … challenging.
In fact, here’s a story about just that kind of thing.
There’s an author from the late 60’s and early 70’s who wrote these weird little nonfiction books. Obscure stuff that only appeals to a certain kind of taste.
When he died, the rights were still — as far as anyone had cared — controlled by the publishing company. Which was defunct. Which meant that the people who got the pieces of that company believed they held those rights at the time of the author’s death.
Now here it gets trickier. From what I have come to understand, contractually the rights had reverted to the author before his death, but this was the late 90s (or so) and he didn’t do anything with them.
When he died, his daughter tried to assert that she had the rights, to get her father’s books back in print. The people who ended up with pieces of the defunct publishing company fought her. Hard. There must have been some question of clarity, because the fight went on for the better part of a decade.
We’re not talking about some potential best seller here. We’re talking about some fairly obscure tastes. But both sides agreed the rights had value and no one wanted to give up perceived value.
Apparently the daughter finally has the rights back and is finally making plans to reprint her father’s books. (Though apparently there have been more complications, since there’s been no word in a year or so.)
While all this was happening, booksellers on the internet decided these books must be worth serious money. Copies went from $3-10 each to $100-250. Sometimes higher. Personally I have trouble imagining people paying those kinds of prices, but apparently someone out there is doing it.
I can’t wait to see the floor drop through that market when the books get a reprint.
I’m thinking of doing an Estate Planning for Writers seminar. There are some issues that really need to be addressed at creation time rather than put off.
That would be a great idea. Let me know when you plan it, and I’ll let people know about it.
We will see if Pikes Peak Writers Workshop accepts proposal.
Honestly, as a single person with no heirs, I’d like to do what Chong Go suggests. What I’d need is a good way to do it.
I’ve encountered that “double my last offer” b.s. negotiation tactic before at the day job. Actually, I’ve encountered “triple my last offer” too. I’m sure there are some business courses out there that tout this as a means to get what you want in negotiations, but all it really does is show the other side what a dick you are.
D***, Kris. You definitely need a case of alcohol after all that. When I make it to Oregon, I promise to bring you your favorite.
For those who think that they don’t care what happens after they die, I have to ask, “Why do you hate your family and friends so much?” An estate administration can be a peaceful, slam-dunk. Or you can make it the experience from hell. And yes, you did do it by not having an estate plan.
Would it be feasible to declare in your will that all your works would enter the public domain at some fixed point after your death (or when their contracts expired)? I’m trying to think how people would know that they actually are in the public domain.
That would be tricky to draft correctly.
Thanks for these posts.
You’re hitting my estate problem square dead center here. I have the Spreadsheet From Hell for my literary estate, with ISBNs and dates and whatnot. But I have nobody to leave it to.
I’ve heard that some charitable organizations, such as the Red Cross, are very good at exploiting and licensing intellectual property rights.
Is that another myth? Or are there problems with handing the whole ball over to a charity who carries out such activities?
Wow, yeah we need to take care of our literary works. I am only starting out but probably in the next five years I will have a good body of work out and that will include art. Sooner or later, I know, must deal with this.