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The perils of an agent or publishing contract


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#21 Charlee Vale

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Posted 29 January 2014 - 01:29 AM

Okay, so I was hoping that this thread would kind of die down, but since it hasn't I think it's time to say something. 

 

Let me be clear, I'm not writing this to give flack to anybody. I'm writing this because I want everyone to understand that while there's truth to this article, there's also enough untruth and sensationalism here to do some real damage, and that's the last thing I want. Many of you know that I am an intern at a literary agency. I'm am party to a lot of insider information because of that, and I'll do my best to clear up some things. 

 

This is going to be a long post. I apologize in advance. (Also, when I tried to post, I had used too many quote bubbles, so some of the quotes from the post in question are in bold)

 

First off, as was stated in the OP, this article is now almost 4 years old. That's pretty much an eternity in the publishing world. Just as quickly as things change, things can change back. I'll address some of the key things I find distressing about this article.

 

The first example used (The textbook company in the 1980s), while not to be completely dismissed, let me reiterate that that was 25+ years ago. You think this article is old? This example, and the contracts used in it, are equivalent of dinosaurs roaming the earth. While I'm not saying what that publishing company did was right--it wasn't, by any means--a mistake nearly thirty years ago shouldn't be the measuring stick by which you judge publishing interactions now. 

 

 

"I was noticing a few other things at the time, but not putting them together because my own career had hit a crisis point.  My agent and I would negotiate a contract.  Then we’d get the contract, and we’d have to remind the publisher that we had changed certain terms.  The terms would get changed back.

 

Or we’d negotiate a contract, then sell a second book six months later on the same terms. Only when the contract arrived, it would be a completely different document. While the terms we had explicitly discussed would be the same as the ones we negotiated, the other terms, from the warranties to the deep discounts, would be extremely different."

 

Agents, authors, and publishers negotiating contracts isn't anything unusual. In fact it's pretty much the norm. However, the difficulties she experienced are not. This speaks more to the quality of her publisher, or perhaps some different levels of communication than any skills on the agent's part. Mistakes happen, negotiations happen. 

 

 

"Ever since I worked for that textbook publishing company, I read contracts with a ruler in hand, going over the contract line by line. And if the contract had to be compared to a previous contract, I’d have the contracts side by side as I went over them."

 

This is a good idea. It's always a good idea to read your contract completely. 

 

 

"One of the many agents I fired in this time period was stunned to hear I did that.  Apparently this agent hadn’t thought of that technique and was happy and surprised that I was so smart.  Naw.  I was pretty dumb to hire a person who didn’t understand each word in the contract and how contracts worked."

 

One of the many agents she fired. Huh. You know, generally when I hear that it sends up alarm bells. Not because you're not allowed to change agents, that's totally within your prerogative. However, when I hear of an author repeatedly changing representation, it makes me think the other may have unrealistic expectations about what an agent's job is, and what is within their ability to control and change. 

 

 

 

After I had switched agents, I forced one publishing company to redo a contract completely.

 

No wonder she had to change agents so many times. Negotiations are one thing, but 'forcing' a publishing company to re-do something entirely for no good reason? I've seen a good amount of contracts now, and even the worst ones I've seen could have been fixed with some requests. This move will make the author a very unpopular person with the publisher. 

 

 

 

A few years later, an agent friend of mine with a really big agency told me in confidence that the days of influential agencies was over.  “We can’t get our own boilerplate any more,” he said, “except for our biggest sellers.” [...] But, apparently, no longer.

 

Hate to break anyone's hearts, but this is flat-out un-factual and untrue. The agency I work for has their own boilerplate with several publishers. And the exact thing happened in reverse, we got a really good contract that now applies to all our writers with that publisher. So yes, this can and does still happen. 

 

 

By the way, that agent, whom I had known for 20 years at that point, was answering a question for me.  I was thinking of getting a new agent (yet again) and I asked him what his super-famous really big agency could do for me that a smaller agent couldn’t.  Maybe because he’d had a few drinks, maybe because he is a very savvy man who has a finger on the pulse of publishing’s future, maybe because we were friends, he told me that he couldn’t do as much for his writers as he could have ten years before.

Clout counted for less and less in this business, he said.  And since his business was all about clout, he was quite morose about it.

Then he told me stories about canceled contracts and misfired deals, stories like the ones I just told you, only these had happened to big name writers—writers with more clout than I ever had, more clout than that poor textbook writer could ever hope to have had.  And the agent said he could do nothing about it.

 

While yes, the actual writing and content is becoming more important in the modern publishing landscape, the fact that clout isn't important anymore simply isn't true. There are literary agencies some people have never heard of because they don't have websites. Why? They're so well known that they don't need them. Now that's clout, and the fact that those agencies are still thriving is plenty of evidence to the fact that clout very much still matters. 

 

No as far as cancelled contracts and deals, there are horror stories, of course there are. There will be no matter where you look in any creative profession, and often the horror stories are the ones that get heard the most because they're sensational. Everyone wants to hear them and be glad that they happened to someone else, but they aren't the norm. 

 

 

 

Slowly, over time, agents stopped advocating for writers, and instead, started advocating for their agencies.  

 

Um, what? I see no evidence of this. All the agents I know love their authors and want what's best for them. After all, that's why they took them on as clients in the first place. 

 

 

 

I knew that many agents had forgotten who they worked for when the agent started refusing to mail books that “weren’t good enough” and refused to do things in their clients’ best interest because it “might hurt our other clients.”

 

A. It's the agent's job to know the market, and know the level of writing that is acceptable and what is not. This is the basic concept behind queries, if the writing is good enough to make it in the market, the agent will know. It's also their job to make your work the best it can possibly be before sending it out so that you can get the best possible deal. If you disagree with the revisions your agent wants you to make, I'm sure discussing it and coming to a compromise is an option. 

 

B. I've never heard of any agent not doing something because it would hurt their other clients. I can't even think of what that would be.

 

 

 

The agreement called for the agent to have the right to represent the writer’s work in all forms for the duration of the copyright of the work, even if the relationship between the agent and the writer was terminated.  I blinked, damn near swallowed my tongue, and told the writer not to sign the agreement. Even though the agency was a reputable one, this clause was horrible. 

 

This isn't actually all that uncommon, nor is it a bad thing. I know of a good deal of agents who still represent certain books, though the author and agent had parted ways. It's called being the 'agent of record.' I agree that maybe the life of the copyright is a little long, but it should be at least as long as the terms set in your book contract. After all, the agent sold the book for you, don't they deserve to make money on that book as long as it's in print? If an agent sells one of your books and then you part ways, it hardly makes sense for your new agent to get royalties from your previous contracts, on which they did no work. 

 

 

 

I made a mental note: avoid that agency.  Tell writers not to sign the agency agreement, and if the agency didn’t like it, then the writers should not be repped by the agency. That simple. 

 

Then prepare not to sign with any agency if you don't want agents to make a living. 

 

 

 

Until another student sent me an agreement from an agency that used to represent me.  And there it was: that horrible clause. Again.  When I had been with that agency, I hadn’t signed any agreement at all.  One didn’t exist. 

 

This is a side note--very much a red flag. Agency Agreements are there to protect both parties. If you don't have one you can be severely taken advantage of. 

 

Those agents she mentions in the following paragraphs are scammers, but we already knew that those do exist. 

 

 

Agency agreements have become as draconian as publishing contracts—maybe even more so. Because one agency agreement I saw stated that the agency could negotiate for the writer, that the writer could not reasonably refuse the terms negotiated, nor could the writer easily terminate the agreement.  Worse, that agreement, in a very sneaky manner, gave the agent the power of attorney over any contract negotiated for that writer.

I just about fell out of my chair.

What happened to the agent being a writer’s advocate?  What happened to hiring a consultant to negotiate for the writer?

If a writer’s relationship with a publisher is adversarial, and the person the writer hires has decided to take it upon himself to put his company ahead of the writer’s business, then who speaks for the writer?

 

Again, ummm, what?

 

'The writer could not reasonably refuse the terms negotiated.'

 

Yes, that or something similar is a clause in many contracts. The key word there is reasonably. This means that if there is no legitimate reason to reject the terms, then the writer can't refuse. What are legitimate reasons? It being not in the interest of the author or book, being a crazy or unreasonable demand, or something conflicts with a previous contract. You get the idea. Not legitimate reasons? 'You just don't like it' or you had a bad hair day. Again, you get the idea. 

 

As for power of attorney, if your agent didn't have power of attorney (which, by the way, allows them to negotiate on your behalf) they wouldn't be able to do their job. No domestic deals, no foreign rights deals, nada. I'm having a really hard time understanding why this woman is freaking out about this considering that having power of attorney is pretty much in an agent's job description. That being said, it is a limited power of attorney. They can't sign anything for you. 

 

What she's saying here just doesn't make any sense. I know no legitimate agents how don't advocate for their clients. It just baffles me. 

 

 

He said, “What do writers need? They need to grow a pair.”

He’s exactly right

 

I don't disagree with this. Writers do need to know when to speak up about something they feel strongly about. This doesn't mean forcing anyone's hand or bowling people over, but making your voice heard. 

 

The rest of the article cobbles together bad personal experiences with agents and publishers. I can't emphasize enough that these are personal experiences. They don't apply to everyone, and should definitely be taken with a grain of salt. 

 

If you're with me after all of that, I appreciate it. 

 

If you're upset with me, I understand, but I find it very hard to stand by while people make it seem like all agents are is a bunch of conniving money grabbers. This isn't the case. There are always a few bad apples, but agents do what they do because the love it, not because they make a lot of money. Many agents have to work second and sometimes third jobs to support themselves, and yet they do it for the love of their work. 

 

I do caution you to always be careful in business practices, but also be careful of taking to heart the words of someone who is clearly very very bitter. 

 

CV


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#22 D. E. Jackson

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Posted 29 January 2014 - 11:45 AM

CV I'm glad you wrote this because it put me off to agents altogether, however I felt that there was still a few things she said that made since.

 

This isn't actually all that uncommon, nor is it a bad thing. I know of a good deal of agents who still represent certain books, though the author and agent had parted ways. It's called being the 'agent of record.' I agree that maybe the life of the copyright is a little long, but it should be at least as long as the terms set in your book contract. After all, the agent sold the book for you, don't they deserve to make money on that book as long as it's in print? If an agent sells one of your books and then you part ways, it hardly makes sense for your new agent to get royalties from your previous contracts, on which they did no work. 

 

I felt that if someone is no longer in your employ, wouldn't it make since that they are no longer paid by you?  I also felt the any royalties shouldn't go to another agent, but to the writer. I do agree there should be a certain time for the agent to earn enough off the book he/she helped sell, but not a lifetime. I would say maybe 5 years?  Then the royalties should revert back to the writer. But I'm not an expert on this and honestly, I have no idea how this whole thing works, but it just seems like common since to me that you do not pay someone who is no longer in your employ. BUT they should have a few years of wages for helping to sell the book, just not over doing it. Only my opinion, which doesn't count for much because I really don't know the business here. :cool:

 

But I am really glad to hear that not every agency is like the one the woman was talking about. :happy:


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#23 Midnight Whimsy

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Posted 29 January 2014 - 12:02 PM

Hi Charlee,

 

Thanks for adding a perspective from the other side of the spectrum. Most readers aren't going to interpret that article as "all agents are evil", but simply understand they need to be careful. I think it's an excellent cautionary article that shows writers that agents aren't their savior angels come to whisk them into publishing heaven. It's a real world business -- where good, great, mediocre, and bad people live and work. It's crucial to be aware of that -- an agent should earn the writer's trust rather than just have it handed to them.

 

M.W



#24 RC Lewis

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Posted 29 January 2014 - 08:13 PM

CV I'm glad you wrote this because it put me off to agents altogether, ...

 
This is why I'm also very glad Charlee posted. It felt like some of the tone of this thread veered toward "why take chances with agents?—too risky!"
 
 

I felt that if someone is no longer in your employ, wouldn't it make since that they are no longer paid by you?  I also felt the any royalties shouldn't go to another agent, but to the writer. I do agree there should be a certain time for the agent to earn enough off the book he/she helped sell, but not a lifetime. I would say maybe 5 years?  Then the royalties should revert back to the writer. But I'm not an expert on this and honestly, I have no idea how this whole thing works, but it just seems like common since to me that you do not pay someone who is no longer in your employ. BUT they should have a few years of wages for helping to sell the book, just not over doing it. Only my opinion, which doesn't count for much because I really don't know the business here. :cool:


This isn't how it works in my experience, nor do I think it should. Commissions on royalties are paying an agent for the work she already did. This includes everything from reading your query and manuscript to talking to you when offering rep, answering your questions, possibly taking you through a round or two of revisions, pitching your ms to editors, nagging those editors to make sure they read, fielding offers, advising you on whether an offer is good or bad, negotiating terms of a contract (back and forth and back and forth), being the go-between if there's disagreement between you and your publisher (so the agent can be the bad guy and you can be pleasant and professional), nagging editors/publishers more to make sure things like payments happen, etc.

 

Yes, there's an "etc." because I'm sure there's more, but that's already a ridiculously long sentence. :wink:

 

Think about it. Any royalties we might earn on a book are also based on work we already did. We wrote it and edited it and it's done. If I'm getting royalties for a book that was published 10 years ago—a book that I haven't had to put a finger on since—why shouldn't my agent still get her 15% of those royalties?

 

I admit, "life of the copyright" seems just plain weird. That is the red flag, not the fact that an agent would continue to earn money on a book after parting ways with the author. Even then, it's more a matter of "weird" than "bad."

 

Here's what's more likely: "life of the publishing contract." If my book goes out of print so my rights eventually revert back to me—say, after I've split with my agent—then I can do whatever I want with that book. Self-publish it, whatever. And my agent is no longer the "agent of record" for that book, because the publishing deal she made is no longer in effect.

 

My publisher would no longer be paying me royalties, so obviously my agent would no longer be earning a commission on those royalties. (Also, if I make any changes to my ms before republishing it in any way, it needs a new copyright.)

 

Sure, it's possible one publisher would hold on to the publishing rights they've licensed for the life of the copyright, I suppose. Maybe the book is really popular and just keeps selling in reprintings and new editions (can't remember if new editions = new copyright, but anyway….) Do I say at a certain point, "Okay, agent, you've already earned everything you deserve for this book, because your work was 5 years ago"?

 

If that's possible, why then shouldn't a publisher say, "Okay, author, you've made X dollars on this book, and that's all you deserve for the work you put in producing it 5 years ago. From here, the revenue generated is more about our packaging, our marketing—the current work we as publishers have put in."

 

Extreme hypothetical, maybe, but that's how I see it. I agree with my agent that she gets 15% of whatever this deal gets for me, whether that's $100 or $1 million.

 

Also, "agent of record" clauses are important to protect agents. If they weren't there, what would stop some unscrupulous authors from signing a contract their agent brokered, then cutting off their agent as soon as the ink was dry? The majority would never do that, but just as there are shady agents, surely there are writers who would do shady things.


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#25 LucidDreamer

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Posted 30 January 2014 - 09:24 AM

I'd also like to make the point that agents don't make money until their authors make money -- and that can take some time. Agents often take on clients because they love their work, but then the market isn't right for that book, etc. and the book doesn't sell right away. However, the time and effort the agent puts into trying to sell the author's book(s) is still there -- and the agent isn't necessarily making any money off of that work right away.

 

I didn't get an advance for my debut novel because its an indie press and I was a total "unknown", so my agent has been working for me (and she does a lot!) for almost a year now without any pay. Yes, she will get her percentage when I start collecting royalties, but by that point she will have been working for almost two years without seeing a dime from my books (Well, unless we sell another book and get an advance, but who knows when that will happen?)

 

So -- another thing to think about in the matter of agents.



#26 D. E. Jackson

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Posted 30 January 2014 - 10:33 AM

Wow! Sometimes we really don't know just hard they work and how much they do deserve the royalties.  I can see the agents point of view now from RC's "ridiculously long sentence." :laugh:  Sometimes we forget how much work an agent puts in and we need a reminder. So thanks RC Lewis! :happy:

 

Just make sure you get a good one. :blush:


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#27 Midnight Whimsy

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Posted 30 January 2014 - 12:19 PM

Just make sure you get a good one. :blush:

 

I think that sums up the article and this whole thread very nicely. ;)

 

M.W



#28 Revo

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Posted 01 February 2014 - 11:59 AM

I think that sums up the article and this whole thread very nicely. ;)

 

M.W

That and having yourself lawyered up.


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#29 SC_Author

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Posted 08 February 2014 - 04:15 PM

What an AMAZING post. Thank you so much! I'm scared now, but it was worth it!


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#30 RC Lewis

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Posted 08 February 2014 - 06:13 PM

What an AMAZING post. Thank you so much! I'm scared now, but it was worth it!

 

Don't be scared, SC. Just be smart … which always has been and will be the thing to do. :wink:


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#31 SC_Author

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Posted 09 February 2014 - 01:24 AM

True :) Thank you RC!
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#32 Rashi

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Posted 26 March 2014 - 08:07 AM

GREAT ARTICLE


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#33 SciFiGuy

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Posted 19 July 2014 - 10:56 PM

Informative, thanks for posting the link.



#34 Andrea Lambert

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Posted 08 February 2016 - 04:07 PM

Honestly, when I was running a small press I had a writer walk from the contract I gave them and they just screwed themselves. Now their manuscript is gathering dust in a drawer somewhere.

 

Really, there are so few breaks, and so few good opportunities, that when you get one, just go with it and sign the contract. I mean, read it obviously, get a lawyer if you want to spend the money although I never have had the need.

 

Beggar's can't be choosers. Don't be a prima donna. By arguing and negotiating quibbles you don't even really understand with your publisher or agent you are just getting a reputation for being difficult to work with. If you decide to walk away from a contract based on something you read on the Internet you are throwing away years of hard work and luck. Sometimes we have to take what's served.

 

just my own opinion, I know others may not agree.


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