Business Musings: My Day in Negotiation

Here’s irony for you:

Two Weeks Ago (as I write this, which is nowhere near when I’ll publish it), I spent four hours negotiating two TV deals (one nearly complete, one about to die a hideous death because I’m going to murder it myself), one contract for translation rights in a major European language to one of my series, one contract renewal for translation rights in a different language to several short stories, and a third contract for translation rights in yet a third language for several more short stories.

By the middle of the third hour of email negotiation (I do not negotiate by phone), I joked to Dean that I needed an agent to handle all of this negotiation crap. By that point in the day, I usually had 2,000 words of fiction done, and I had written zero. To say I was peeved is an understatement.

No sooner had the agent comment left my mouth than I got an email from the last agent I had, the one I consider the most competent of my former agents. His email said he was sending me the royalty statements from the last traditional deal he ever handled for me.

The attachment was his excel spreadsheet for royalty payments to every one of his clients whose last name begins with R.

It was like the universe was reminding me just how ineffective an agent or a manager or any middleman really is. Yes, I was losing four hours that afternoon (and at least one of those deals will make me zero dollars), but I was gaining control and the knowledge that if anyone fucked this stuff up, it would be me. And I would know exactly why or at least how I had fucked up.

Good God. I now know how much money my fellow “r” named clients are making…

Anyway. I was planning to write a bit about my negotiation attitudes before all this happened. But this day (this past month, really) truly brought the desire to write this essay home.

I’ve written an entire book on negotiation. It’s called How To Negotiate Anything. That book is part of my Freelancer’s Survival Guide, and you can find the original posts for free here. (They were revised slightly for the Guide and the standalone book.)

In short, here are my basic rules for any negotiation:

1. Know What You Want.
2. Ask.
3. Be Prepared to Walk Away.
4. Stay Calm.
5. Never Reveal Your Entire Hand.
6. Don’t Flip-Flop.

In dealing with movie and TV producers, and foreign rights publishers, and pretty much anyone who wants subsidiary rights to my book, I hold all of the power in the negotiation.

I know, I know. A bunch of you just did double-takes. How can I have more power than a Hollywood studio?

Pretty simple, really. Anyone who comes to me to license rights to one of my books wants something from me. And if they want something from me, then they have to ask.

If they ask, and I don’t like what they say, I can (and often do) say no.

Then they don’t get what they want.

Negotiation over.

That’s so different from most writers. Most writers want to give their work away to anyone who shows interest. Most writers haven’t a clue about the world(s) they’re going to enter. They think if they just sell movie rights to a producer or if someone approaches them for a TV series, then the books will sell and sell and they’ll be famous and they’ll be rich.

If only.

There are no statistics on how many writers get approached by producers with the promise of a TV show or movie in the future, because these interactions are common. Or rather, the approaches to agents are common. Writers with agents often have no idea how many times the writer gets approached with a pitch for a movie or TV show made from one of their books.

My 2017 statistics, as of the date I wrote the opening to this post, were that I had received 10 contacts from producers or their assistants about various projects—seven for one series of mine, two for another series, and a third because I’m a science fiction writer and might have something that will fit into an existing anthology show.

As I get ready to post this blog in August, those stats went up—fifteen contacts, including two that I believe were from the same interested party through two different agencies (because they couldn’t believe that I handled my own rights).

That doesn’t include some of the off-hand comments made to me by a few producers I talked with casually who said a variation on, “By the way, if you have something you think I should see…”

I never have anything I think they should see. Why? Because I’m going to them. I let everyone come to me.

Back on topic: It is easier to get work optioned these days than it was fifteen years ago. Especially in television. You’ve heard the phrase “peak TV,” right? I don’t think we’ve peaked yet, but the available scripted programs have grown dramatically.

According to FX Networks Research, the number of scripted original TV shows will reach 500 this year. In 2016, there were 455 scripted original TV shows.

Compare that to 182 in 2002, a number that more or less stayed in place until 2010 or so. (It went up all the way to 216.)

The odds of having a book optioned went up as the scripted original shows increased. The odds of having that option turn into an actual contract increased as well.

But notice something. There were only 455 scripted original TV shows in the U.S. in 2016. That 455 includes shows like NCIS which has been on the air since fall of 2003.

Considering that I received dozens of contacts in those years (not offers, contacts) and consider that I’m not unique, that means thousands of potential contacts were made in those fifteen years. I have no idea how many scripted shows are based on books, but let’s pretend it’s half (which is probably high). That means…oh, crap. The math is beyond my tired brain.

Let’s try this again. Let’s say 1,000 contacts were made to writers in 2015. Let’s be really optimistic and say that 500 of those contacts became options in which money exchanged hands.

It takes time to turn an option into a contract into a pilot into a TV series. It’s really pushing things to say that the option will become a TV show by 2016, but let’s pretend it always happens that way.

And let’s pretend that half of the scripted TV shows in 2016 came from books. And let’s say that half of those were ongoing series, like Game of Thrones or Outlander.

That brings us down to one-quarter of the original scripted TV shows produced in 2016 were new, with a book as the basis for the show. That means that roughly 114 of those thousand contacts became a TV show that viewers actually saw.

Boy, that’s high. That’s hard for me to sustain even at my most optimistic. Because that’s about 11% of the contacts became a TV show.

I doubt that happened. I doubt it’s at 1%, partly because the contacts multiply if you already have a successful show.

What I’m trying to show you here is that the writers who get excited when someone from the film or TV industry approaches them with a query about a book don’t understand the industry. A query is a query is a query. It’s almost a vague off-handed comment.

Most producers expect the writer to respond, tail wagging, by giving that producer a “free” option to pursue a TV deal. No option is free, folks. Not to writers. You’re losing a huge source of income there, primarily by acquiescing to the interest of someone whom you probably haven’t even researched properly.

Writers who do not understand what a long shot it is to get a TV show made immediately lose what power they have in negotiation. Because the writer sees big money—I’m going to be rich!—and then doesn’t do anything to guarantee that if a TV show does get made, the writer will get rich.

With 455 scripted shows and streaming companies and cable TV, even if your book becomes a show, that doesn’t mean you’ll become rich. Particularly if you’re traditionally published. Because the big numbers aren’t there any more.

If a book agent negotiates your Hollywood deal, I can guarantee that you won’t become rich, because no one will know that “your” TV show is based on a book or series of books. Too many times, I’ve seen the names of friends at the end of the credits, just above the copyright. You know. The area that scrolls by so fast you can’t even see it? The area where broadcast and cable channels put the teaser for next week’s show? The area that gets cut off when you’re streaming one episode after another?

Those were agent-negotiated deals.

If you want to see a totally cool way that a writer’s book gets credit on screen, look at these opening credits for The Night Manager, based on a book by the same name by John Le Carré.

This show was produced by Le Carré’s sons. If you know how money gets paid out in TV-land, then you can see other ways Le Carré made money on this—even before the sales of his books rose because the show was on television.

One last—important—thing about The Night Manager. It was produced for the BBC. Had the show not been licensed later to AMC, it would not have been included in that 2016 total of scripted TV shows above. But I’m assuming the show was counted, because of the AMC airing.

However, you should never ignore people who come to you from other countries, to air something of yours on television (or film) there. And don’t believe that those projects remain limited to the region that initially purchased them.

For example, the British series Broadchurch, which was produced for ITV, got shown in the U.S., then remade here as Gracepoint, with some of the same actors. The French station, France 2, also announced an adaptation.

None of that would have happened without the success of Broadchurch in Great Britain.

In other words, writers think much too small and much too large when film and TV people come calling. Too small in thinking that only one country controls the rights (it depends on what you sell, after all), and too large in thinking that the writer will get immediately rich when anyone connected to a studio comes to call.

I have made a lot of money from several countries by negotiating my own deals, with IP attorneys and attorneys who specialize in film and TV as my back-up. I also pick the brains of friends and producers in the industry to keep abreast of the current changes.

TV in particular is changing damn near daily, and in order to negotiate, you need to know what the changes are. You might not know the right language to use to ask for what you want, but you should know what you want. (See #1 above.)

Most agents don’t care about anything except up-front money. Agents get a percentage, remember, so they want quick money and they want a lot of it. Smaller deals get turned down without any consultation to the writer.

Or the larger deals are all about the money and not about the control.

I want control in how my name is used and how the book gets advertised in this new medium. You see, in this, I agree with Lee Child. Joanna Penn noted what Lee said at ThrillerFest this year.

According to Joanna’s ThrillerFest wrap-up podcast, Lee said, “A book is the ultimate product. Anything else is secondary. A book is not a chrysalis or a pupa waiting to be something else, like a film or TV show.”

Exactly. If I make a TV deal, I assume that the screenwriters will, at some point, deviate from my book. If I make a movie deal, they’re guaranteed to deviate from my book because it’s hard to get everything from a novel into a film. Better to have a good film based on a book, leaving things out, than to have a faithful rendition of the book that falls flat.

So, if someone approaches me about licensing rights to use my book in one of their projects, my first analysis is to examine how this benefits my book. Will their project help me sell more copies? Introduce me to a new audience? Bring my story to a community that wouldn’t see it otherwise?

I want to know, in detail, what the person who approached me wants and how they plan to use my property to get what they want. I have turned down people who have no plan but are simply sweeping up books to see if something will appeal to their bosses.

I have gone with less financially friendly deals when the producer or studio who approached me actually has a vision for the book.

However, in this second instance, the rights licensed are favorable to me. As one producer said to me in January, “You’re asking for things that [Big Famous Writer] didn’t get until the fourth season of [Hit Show].”

“Yep,” I said in response, and left it at that. But I said to Dean after I typed my demand, the reason Big Famous Writer didn’t get the things I asked for was because Big Famous Writer’s agent asked for those things—for the agent—and not for Big Famous Writer. The agent got all the real money. Big Famous Writer, who should have known better, got pennies in comparison to the agent—who also, by the way, got 15% of the increased book sales when the show became a hit.

Did I get those things in my deal with that producer? Yep. Those things and more. Why?

Because I asked.

And, because I knew I had the power in the relationship. I could say no if I didn’t get them.

I’m not unreasonable about this stuff. If a producer needs a specific item toned down or changed to make a deal with a specific studio, we negotiate. We change things, or we have some flexibility built into our original agreement.

But I am inflexible about giving my book the credit it’s due. I want a title card like Carré’s, not like scrolling list just above the copyright notice that most writers’ books get.

So…

Keeping my negotiation rules in mind from above, here are the attitudes I bring to the table when I negotiate subrights deals (like movie, TV, games, comics, translation, etc.):

1. I don’t care if the deal gets completed. I see it as an opportunity, but if the approach is wrong or it’s a bad deal, I walk away immediately.

2. I care about all the little details. As I worked on an option agreement instead of writing my blog, I realized how easy it would have been just to stick in some boilerplate and leave it at that. If I had done so, I would have missed a ton of small things that matter to me. Granted, if I had a lawyer do this, I would have been able to review the work, but that would have added an extra step and I might not have felt the need to be as educated as I am about this stuff, so I would have missed it.

I also learned something when I came to that realization. I’d been wondering for years why agents do such a terrible job for their clients when it comes to negotiation.

It’s pretty simple, honestly. The agent has no reason to get into the details of a deal. For the agent, it’s about the money and maybe about some of the big ticket items. Writers who have agents aren’t informed about the nitty gritty of deal-making, so the writers trust their agents to make the best possible deal, but don’t know how to enforce that.

So the deals that are made are mediocre at best.

Lawyers are better, but they’ll only go as far as the client allows.

If the client has no idea what’s being negotiated, or if the client is ignorant of the details, the lawyer can—and will—only do so much.

It’s up to you—the writer client—to know what you want.

3. I will walk away at any point if the deal is unfavorable.

I walk no matter how long we’ve been negotiating. Recently, I walked away from a potential deal that I’d been negotiating on and off since late last year. We put a lot of time and effort into it, but ultimately, we could not come to an agreement about which rights to license. The other party wanted to license every available right to my book, even though they only needed one right. I was willing to license the single right. I would have budged and negotiated one or two more rights, but these people wouldn’t. It was all or nothing for them.

Turned out, it was nothing.

One point here: I do preliminary negotiations myself by email. (To understand why I only do negotiations in writing, see my posts on contracts and copyrights.) I bring in an attorney once we get to the actual legal document phase, whether that document is a shopping agreement, a deal memo, an option, or an outright contract. Even then, I’m working side by side with the attorney. Sometimes I consult with more than one attorney to make sure I have the right information.

On this most recent deal that I walked away from, I had 38 single-spaced pages of email negotiations. Had I paid an attorney for the negotiation, I would have been out a couple of thousand in billable hours. A book agent would never have negotiated these points, because every agent I have talked to isn’t aware these points exist.

For those of you who are going to ask, Hollywood agents have a different function these days than they did years ago. Most of them have been rolled into management companies, and the management companies keep the rights I’ve negotiated for themselves. (That’s what happened to Big Name Author, above.)

I was better off negotiating myself because I was free to walk when things turned sour. An agent would have pushed me to stay. So would a management company.

On the upside, I have successfully done many preliminary negotiations on big projects of my own, and generally speaking, the negotiations are much cleaner than that bear of a negotiation I walked away from.

Usually, the producer/studio/company I’m dealing with wants the project and I’m happy to work with them, should we come to terms. It’s refreshing when we both compromise our way to something we both love.

4. I see most subsidiary rights as advertising for my books. These sub rights are products, not what I do, so they’re different from the book itself, just like Lee Child said. With that attitude in mind, I approach the deals differently. If I don’t get the ad benefit or the extra readers, I don’t play.

5. I don’t approach anyone.

All the subsidiary rights that I license happen when someone approaches me. That keeps me in the driver’s seat. I’m not asking anyone to have pity on me and consider my work for their big deal project.

They’re coming to me to ask me for permission to use my work.

It’s a whole different way of doing business. They want something from me.

I don’t want anything from them.

6. I hate having smoke blown up my ass.

If someone wants to bullshit me or tell me how brilliant I am or how much they love the project, I tell them to cut to the chase. What do they really want?

I have usually found that the more smoke they try to blow up my ass, the more they want to actually screw me out of my rights. The folks who immediately drop the I-love-you-and-your-work-more-than-anything-else-I’ve-ever-read shtick to talk business are the ones who get my respect.

7. Respect me, and I’ll respect you.

Otherwise, leave me alone.

I’m currently working with some great people on various subrights deals. These people respect me and my work, and I respect everything they’re doing as well. They understand the need for a good agreement between us. We both understand that we have jobs to do and those jobs are different.

It makes for a good working relationship.

8. All The Mistakes Are Mine

I actually see this as an upside. If I screw up a negotiation, if I get less money than I should or if I missed some language in a contract, then the only person I can blame is myself. I don’t make that mistake a second time.

Sometimes, though, I will take less in the hopes of getting some other great thing later. If the other great thing doesn’t pan out, and I’m stuck with getting less, at least I know why that’s happened.

I can’t tell you how many times I found out long after the opportunity left that an agent of mine turned down a deal that I would have negotiated into a better deal. I would always find that out after I fired said agent for other reasons, much too late to ask the agent why the hell they had turned down the offer without bringing it to me.

(Of course, the handful of times I did ask, the answers I got never satisfied me.)

Sometimes I get scared as I’m negotiating. What if I make the wrong choice? What if I missed something important? What if, what if, what if…?

Then I step back and remember there is no one right way to make a licensing deal. Every single deal is different. Every single one.

So if I make a mistake, I move on and learn from it.

9. I strive for the best deal I can make with the knowledge I have right now.

Negotiation, licensing, contracts—that’s a learning curve just like everything else. I will learn something important from good deals and bad ones. With luck, the deals I negotiate this year will be better for me than the ones I negotiated in 2013.

And, really, that’s all I can hope for.

10. I negotiate everything as if the project will happen.

That sounds counterintuitive, because you should always negotiate that way. But many agents and writers have the attitude that only 455 original scripted series got made in 2016, so the odds of an option becoming a TV series are long ones indeed. So take the money and run.

(I can’t tell you how often I heard that advice from agents and friends.)

Unfortunately, those bad deals seem to be the ones that actually get made. I’ve watched friend after friend, who initially thought they got tons of money on an option, piss and moan about the peanuts they get while everyone else connected with the project makes hundreds of thousands of dollars.

Happens every time.

Negotiate as if the project will get made. Don’t skimp. Know what you want and make sure that you get those things in writing. It doesn’t matter if someone promised you something on the phone or in an email, if that something is not in the contract.

11. Take Time

If someone is in a hurry, that’s their problem, not yours. If they want a response in an hour, that’s usually a red flag. Take time to think about what you want. Take time to consult with others if need be. Take time to find the right language for your deal.

Never let someone else set the schedule. You’re the linchpin in this negotiation. If you walk, then they get nothing.

So take your time and do the negotiation right.

Today (as I write this, which is nowhere near when I’ll publish it), I have completed the deal for the European sale for one of my series. I have a finished TV option on another series. (Did you hear about it? Probably not, unless my partner in the deal announced it and I missed it. I generally don’t announce these deals—unlike some of the silly folks who announce their shopping agreements. Sigh.)

I have turned down three other TV projects. The annoying TV project is still hanging fire, and sucking all the oxygen out of the room because the person on the other side really, really, really wants to license the TV rights to my book, but can’t figure out how to give me a deal that is beneficial to me. (Six months of weekly emails so far. Sigh.)

In August as I prep this to go on the blog, things have changed even more. I’m spending more time than I like negotiating. I’ve got a deal memo on one project and a shopping agreement on another. A name so big in the industry that people look at me in shock when they hear it just signed onto a project that’s been hanging fire for a long time. That project is moving again, and is taking attention that it didn’t take a year ago.

But as that day so long ago reminded me, it’s better that I do the preliminaries. Because imagine if my stupid agent forwarded the email I sent him telling him what I want and don’t want directly to the other side.

Think that doesn’t happen? Let me show you the emails I have from agents for the rights I’ve tried to license for anthologies. The writers think the emails are private and say some things about me or the project that they wouldn’t say if they knew the emails were going to me directly. And yet, I’ve seen them.

Sigh.

Some weeks, I do no negotiating at all. Others, I’m standing in front of my email computer for hours. Some days, I get an email, read it, and go for a walk or a run just to clear the smoke from my head (or my ass). Because I’m as susceptible to flattery as the next person. I need to remind myself what I want in these negotiations, not what the kind person who loves, loves, loves me on the other side of the negotiation wants.

I don’t see this as a game. It’s too serious for that. But I do see it as something I do in addition to the writing.

I don’t have to license any of my subsidiary rights, ever. There is no requirement that I do anything with my books other than publish them.

It’s my choice to license the rights.

Sometimes I choose to do so.

And sometimes I walk away.

Do I have regrets?

Yeah. I do. I regret ever hiring an agent. I regret listening to their bullshit. (Talk about getting smoke blown up your ass.) I regret not learning how to license these rights myself much sooner. I regret listening to one of my agents on how to handle a big-deal option from Disney in the 1990s. If I had done that deal the way I would do it now, I would have made six figures or more. As it was, I made $10,000 and by the time I got the money, the producer who wanted the story had moved to another company—and there was no chance that the project would ever get made.

I have a lot of regrets, but none of them for the deals I’ve negotiated for myself—even the ones that weren’t very successful. I know why I did what I did.

And I’m happy with that.

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“Business Musings: My Day In Negotiation,” copyright © 2017 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / olenkamelenka.