Business Musings: Agenting Changes

Business Musings: Agenting Changes

This past week I got one of those letters. Someone wrote to me to tell me how great his agent is and what a great deal his agent got him. Not for his novel, but for his movie option.

I get “my agent is great” letters all the time, but usually they’re about book deals. If someone feels the need to write to me about how great their book deal is and how I don’t know anything about traditional publishing anymore, more power to them.

I figure someone who feels the need to write to me about this stuff is actually hearing me, and is writing to their future self. Some day, that letter will come back to haunt them.

But this one, the one with the movie deal, made me feel sad. This guy was very careful to tell me that he was indie published with his books, that the agent reached out to him because his book is so good, and the agent got him the best deal ever.

I have no idea if the agent got him the best deal ever. I do know that the option sounds weird or maybe it’s the way the guy communicated it. There are four payments involved. Until this week, I had never seen an option agreement broken into four payments, the way that a book publishing agreement is broken up. This week, I heard of two such deals.

Let me focus on the email guy first. Maybe the guy didn’t understand what he was seeing (which is likely). Maybe he misunderstands that the first “payment” is actually for the option and its term, the second “payment” will be to seal the actual deal if there is one, and the third and fourth “payments” are due and owing on things like principal photography or distribution or something.

Or maybe the guy got a new kind of option, one that might be coming out of what I’m going to write about below.

I really don’t know, because, as I said, I’m speculating. I don’t want to see his deal. I really don’t.

The reason? He’s a new writer with an agent who approached him and who got a deal that paid, in the new writer’s words, “a lot of money.”

Generally speaking, “a lot of money” in movie terms equals a major loss of rights. For all I know, this guy got tens of thousands of dollars up front…and will not be able to license any  part of his book until this option ends (or, in some cases, even past that. Yes, these deals can be bad).

Why am I concerned? Because of two things that hit the trades recently.

First, the Association of American Literary Agents changed their Canon of Ethics. For those of you who don’t know what AALA is, it’s a loose organization of literary agents. Unlike many organizations, AALA has no real teeth and honestly, no one really cares about them.

I’ll bet those of you once had literary agents didn’t even know the organization existed. It used to be AAR (the Association of Authors’ Representatives) and back then, its president was the agent who embezzled from me and half the science fiction field. So excuse me if I think little of this organization, even now.

However, I’m telling you about it because the organization changed its code of ethics…ostensibly so that it can diversify its membership. Publishers Weekly says that the change came “in the wake of an anti-racism workshop and a retreat taken by the board of directors.”

If they had simply said that they were trying to diversify by bringing in younger agents (read newer agents), then the change wouldn’t be as insulting as it is. But think about this for a moment: If this was only about younger (newer) agents, then nothing would have happened after the anti-racism workshop. But the idea here, which is so very New York publishing, is that the standards had to be lowered for people of color.

The self-congratulatory statement came out of their press release. Sigh. I guess it took them two days to realize that AALA was not inclusive to people who weren’t white. (I can’t say that gender is an issue because a lot of agents are women and many agents are LGBTQ.)

Anyway, that’s not the most head-shaking part of these so-called ethics changes. The other head-shaking part is buried in the middle of the press release.

While AALA continues to advocate for a future where commissions on royalties and advances will sustain an agent, many literary agents currently struggle to support themselves by agenting alone.

Lookie this: “agents currently struggle to support themselves by agenting alone.” Yep, that’s right. Traditional publishing deals have gotten smaller, the terms have gotten worse, almost no one earns royalties anymore, so AALA has decided that an agent is now

any individual employed by a literary agency–including members of contracts departments, accounting departments, and other teams within agencies engaged in the support of author care.

And…an “agent” can now provide “editorial services for a fee” to any writer who is not a client. If that writer becomes a client, then the agent must refund the fees. Of course, there’s no timeline on the refund. If you want to see how the AALA is negotiating this bit of garbage, look at the flowchart at the bottom of the Canon of “Ethics.”

These aren’t ethics. This is an organization that’s trying to continue to get its dues and to provide some people whose job no longer has relevance with cover.

The point that I really want you to see here, though, is this.

Agents struggle to support themselves on agenting alone.

Some of this crap came out of the fight that the Writers Guild and Directors Guild had agencies in Hollywood in 2019. Apparently book agents were afraid of…what? Guilt by association? Being caught with their hands in the till? I’m not sure because I found that link in an industry newsletter which did not explain it any further.

Anyway, speaking of Hollywood and book agents and all of that horrid stuff…

A goodly number of you sent me the link to this horrifying article from The Hollywood Reporter. (Thank you!) I scanned it when it first appeared, but didn’t really read closely because I was at the Licensing Expo and then falling ill.

But when I got a chance to actually read the thing…well, my print copy is marked up with all kinds of ideas for blog posts, one of which you’ll see in the next two weeks. This one, though, this is the one that those of you who sent the article expected.

Under the happy title, “For Authors: ‘The Future is Multihyphenate,’” The Hollywood Reporter really wrote a new American Horror Story for writers. The website title is a bit more accurate: “How the Publishing World is Muscling in on Hollywood Deals…”

First, remember the context. Book agents are having trouble making money selling books.

So literary agencies like Aevitas Creative, which claims that provides “unusually meaningful editorial guidance and inspiration” for its clients have now partnered with “top-tier talent agencies, management firms, and production companies” to “represent” their authors rights.

Yeah, right. Note that I have linked to this agency’s website, but I do not recommend it any more than I recommend any other literary agency, which is to say, I don’t recommend it at all.

What Aevitas has negotiated with these Hollywood types is this: The agents act as producers on a writer’s project. The agents, not the writer. The goddamn agents.

What do the writers get? Well…authenticity, of course. Because agents are much more authentic representatives of a story than the writer. (You think I’m kidding? Read the article.)

Oh, and what else do writers get?

And by serving as producers, agents are able to defend the authors’ interest. Such deals allow them, for instance, to advocate for the authors themselves to work in a screenwriting capacity…

Because an author, as a producer, couldn’t argue for that for herself. (In case you don’t hear my tone, that’s sarcasm, people.)

Why are agents “advocating” for screenwriting for their clients?

Because a screenplay deal is another deal and it will make the agent more money.

The agent, who is already earning a producer’s fee that they took away from their client. The agent, who has set themselves up as the authority on the work, not the author. The agent, who will then use that producer’s credit to get other producer credits on other projects and who will then make all the money that they can no longer make by selling books to traditional publishing.

Oh, and note one other thing about this language.

The agent will “advocate” for the author to get screenwriting credit. Hey, writers! Give up your own producing credit and the ownership in your IP in exchange for what looks to you like a large sum of money but in relationship to what you could really earn if you did this deal with an entertainment lawyer is an actual pittance…oh, and when you do that, the agent (as producer) will politely ask the other producers if you, who have never written a screenplay, can write the screenplay.

(Put that way, the answer is usually…“No. Not when we can get someone good.”)

The thing is, folks, here’s what the “literary” agent is doing. They are truly “muscling in” to Hollywood deals to get more money for the agent.

As I said up top, when the agent presents a deal like this to their writer client, the agent will mention the money. The agent will not mention the loss of rights…which will often go to the agent because the agent is a producer on the film or the TV project.

That poor guy who wrote me the letter? I hope to hell his deal was not one of these. Because these are an absolute nightmare.

I’ve often written about friends who got bad movie deals and lost all rights to their work. Those are the kinds of deals that this article is proudly saying “multihyphenate” writers should get.

All because literary agents can no longer earn a living at the “literary” part of their job.

Just like traditionally published writers can no longer earn a living in traditional publishing.

What’s left?

Indie.

But what I’m afraid of—and what I’m seeing more and more—are indie writers signing on with these agencies to handle foreign and movie/TV rights.

These agents are not in it for you, indie writers, any more than they’re in it for the traditionally published writer.

This new “system” is another way for literary agents to get around all the regulations that California and New York put on talent agents and managers, which are highly regulated. By “partnering” with an existing entertainment agency and by becoming producers, these literary agents are getting around the very laws that are designed to help creatives keep their IP.

I know, I know. So freakin many of you don’t want to hire an entertainment lawyer. I keep writing blogs about why you should. Here’s the most recent.

Let me give you the shorthand from that piece. Attorneys are highly regulated. Literary agents are not regulated at all…and schemes like this one are designed to skirt regulation.

Who do you want to handle your money, your business affairs, your deals, and your negotiations? Someone who must go to school to learn how, get licensed, have their license reviewed regularly, who is required by law to put their client (you) first, and who can be fired at any stage?

Or someone who has no education, will write an agreement with you that will take your copyright, can easily put themselves first, and who cannot be fired (especially if they’re now the producer on “your” movie)?

The article in The Hollywood Reporter and the change in the Canon of “Ethics” from AALA are scary. They’re also big bright warning signs on the career path. People who are in an unregulated industry who cannot earn a living honestly are going to go to dishonest means to do so.

Those dishonest means might seem straightforward (Yeah, sure, let’s have the agent be the producer to protect the writer)…until you actually think about it. Why isn’t the writer the producer? The writer will definitely protect their own interests.

It’s not logical. It’s predatory.

Don’t say you weren’t warned.

****

I know, I know. Some of you came back for the How Writers Fail Series. I still have several pieces in that series, but I’m realizing that a steady diet of “how writers fail” is tough for me, and for you as readers. I’m still posting one or two a month, because this topic goes on and on and on. But only one or two a month.

There’s a lot of other stuff to get to, some of it amazingly current, and some of it less current but no less important. So, you’ll see some back and forth in blogs here. It’s not because I’m busy. (I am, but that’s beside the point.) It’s because I want to talk about many things rather than one thing.

And let me give you this reminder:

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“Business Musings: Agenting Changes,” copyright © 2022 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / andrewgenn

 

8 responses to “Business Musings: Agenting Changes”

  1. Dean Cycon says:

    A recovering attorney just spitballing here. Readers may wonder why an agent would pay a writer upfront for their indie published work. It seems high praise and good money. But on a deeper dive consider how the screenplay biz works. The agent may sell your rights to any number of groups that form to try and convince others to produce movies. They raise money themselves on the hopes of hitting it big. But just because a bunch of folks get together and raise some money doesnt guarantee that they will find a studio or larger group willing to actually make the movie. So the agent may sell your rights to this group and make good money doing so, but with a small likelihood that the project will ever go anywhere. It’s a weird new phenomenon.

  2. K says:

    I would SO rather work with an entertainment lawyer than an agent. A million times over. Thank you for this! I heard a friend describing a sketchy film option recently, and couldn’t understand why she was describing it in the terms she used (or why she didn’t know more about the deal). I have a sneaking suspicion that this explains it.

  3. Thanks for this Kristine.
    It makes a lot of sense. I haven’t actually worked with my agent in a long time since I’ve gone almost entirely indie. But we did have a frank conversation some months back where he said literary agenting has now become and I quote “a fool’s errand.” And he, being in his mid-60s has been at this for a long time. He said he was making his money now selling movie rights, and he opened a whiskey bar or two. He encourages me to write screenplays, but I’m so busy putting in the word count for my stories every day that I don’t seem to have the time.
    VZ

  4. C.E. Petit says:

    One wonders how many of the agents at Aevitas are in compliance with the California Talent Agencies Act, Cal. Labor Code § 1700 et seq., when they’re advocating for screenwriting gigs for their clients.

    If they attend a meeting in California; or they have an office in California; or their client resides or maintains a place of business in California — the Act applies.

    It requires not licensing, but registration. And it’s a public registry available via teh Intertubes that would show the registration not of the agency, but of individual agents — because it’s a person-by-person registry.†

    It limits commissions to 10%, and (at least purportedly) only registered agents can get “talent” — which explicitly includes screenwriters — paid gigs relating to television and cinema. (It’s still somewhat vague as to “short pieces only ever part of podcasts” and similar things.) But that limit applies only to film/TV work… and a Titanic-sized loophole places no restriction whatsoever on compensation for agent-producers as to their “role” as producers. (Just look very, very closely at the credits for A Certain HBO Series With Dragons.) All of which explains the push for the agents to become producers.

    Apparently, the concept of “conflict of interest” was never considered in the statute’s drafting. Which is not surprising; I’ve never seen it considered in H’wood, either. Just remember: The “producer” is the “publisher,” so any agent-producer is on both sides of the transaction — and is in a strong position to block or delay effective auditing, inquiry into sweetheart merchandise deals and nepotism and practices that Harvey Weinstein could only aspire to…

    Application of the foregoing to the situation described by Our Gracious Hostess’s correspondent is left as an exercise for the student.

  5. Derek murphy says:

    Great write up! Thanks so much for the thoughtful breakdown of these issues.

  6. Suzan Harden says:

    I don’t know. I think this falls under the subject of how writers fail. Not doing the business research. Not learning their legal rights. Letting greed make them vulnerable to scammers. And not keeping an eyes out for the new scams.

    But I did have a good laugh that literary agents are having trouble making a living now. These are the same people who gave me SO much bad advice twenty years ago. And now, I’m writing what I want and making a bit more than pizza money. I like some of the changes in publishing. I like them a lot.

  7. I gave up submitting novels to agents back in 2008. The contracts were bad, the delays were horrid, and I never got a lick of encouragement from any slushpile. I kept writing novels, but they went to a couple friends and straight into the trunk. Fast forward fifteen years, and so far in 2022, three agents have reached out to me, declaring that they can get me a Big Deal. Yes, I’ve become a better writer since 2008, sure, fine. But it was unimaginable even five years ago.

    Meanwhile, my current Kickstarter is on track to net me more than what my friends are getting in midlist advances–with one exception, but she’s a Big Name. And the SFWA has dropped its “pro” requirements down to $1000 across your catalog.

    Agents need us far, far more than we need them. And running a Kickstarter is far less work, with a far better chance of success, than wading through the slushpile.

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