Killing the Sacred Cows of Publishing: Agents and Contracts

These last two weeks I have been watching a friend struggle with all the agent myths AFTER getting an offer from a major New York publisher for a multi-book deal that he marketed and sold himself. And watching this, I came to realize that there is still another agent myth that I haven’t covered in a chapter. This is a brand new myth because of the change in the industry and agents.

The myth is that you must have an agent or an attorney to negotiate a book contract. A myth that I have taught and believed up until things changed in the last few years.

Truth: Today, sometimes, under certain circumstances, you might be better served to not use an agent or an attorney to work on a contract with a New York publishing house. With a little learning on publishing contracts, you can know as much or more about contracts as a new agent in New York. (Remember, they have no training or license and often come from the editing side.)

But there are a BUNCH of factors with this, so read carefully ahead before flying off on your own with a major New York publisher.

And I am calling this a myth because it is something I have taught as a fact for years and just came to the conclusion over the last year that I have been teaching a myth. I have said, “Sell the book, get an agent to help you.” I taught that as almost a requirement. Sigh, in this new world, with this new breed of clueless agents who have a belief system damaging to their clients, I am now taking those words back. Heck, more than likely I’ll have to go back through some early chapters and comments and take those words out as well before I do the final version of this book. That’s how fast things are changing.

So, let me be clear. Right now, here in June of 2010, I am saying this:

1…Sell your own book.

2…Maybe find a top agent to help you with the negotiations and contract.

3…Maybe hire an attorney to help you with the negotiations and contract.

4…Maybe just do the negotiations and contract yourself with an attorney behind the scenes to answer your questions.

5…Maybe just do the negotiations and contract yourself.

I hope I am now clear on this. Sorry, former students. Sigh, things just keep on changing and this new world of agents has moved my belief system to this point now. Maybe, under some circumstances, you are just better served to negotiate and do the contract yourself.

Okay, stop screaming for a second about how you know nothing about contracts and just listen.

I want to take the five points one at a time.

1) Sell your own book. In other words, be responsible for your own career. If you are having an agent try to market your book, make sure you and your agent have talked about where the agent is sending the book and why. Know what is happening with your work at all times. If your agent gives up after a few rejections, you mail the book out to editors yourself. If you don’t have an agent, mail the book to editors yourself, not to agents. I did a very long chapter on this topic for this book under Agents Sell Books myth. Might want to read that now if you are having trouble with this concept

2…Maybe find a top agent to help you with the negotiations and contract.

Note I said “top agent” above. Top agents don’t believe in rewriting their clients. Top agents most of you have never heard of because they don’t blog. They just work for their clients, they don’t read slush, they understand their job. Top agents have been around a while and know contracts, mostly work at major agencies who have boilerplate already negotiated, and so on. If your choice is lower level agents who blog, you are going to run into problems.

3…Maybe hire an attorney to help you with the negotiations and contract.

In all the agent posts comments, Laura Resnick and I have talked about this and I am of the opinion right now that going to a publishing attorney is a top option and getting more logical by the day as all the younger agents kill their own careers. But note: A local attorney in your small town won’t help you, and might hurt you. Laura listed some vetted IP lawyers in one comment under an agent chapter and most writer’s organizations have lists. Not hard to find.

Going with an attorney has upsides and downsides. Downside is you must pay them up front. Upside is that they don’t take 15% of your book’s income for the rest of its life. I will talk about that 15% part in a moment.

4…Maybe just do the negotiations and contract yourself with an attorney behind the scenes to answer your questions.

Remember, an attorney only charges by the hour, so if you are fine talking with the editor about the contract, hire an attorney for an hour or two to look over the contract and answer your questions. Then you talk to the editor instead of having the attorney talk to the editor in the negotiations. Very simple. Again, make sure you have hired a good IP attorney and don’t be afraid to tell the editor you are working with that attorney. The editors often know the good attorneys because they have worked with them.

5…Maybe just do the negotiations and contract yourself.

Okay, now to the fun one.

An aside here: Next year Kris and I are talking about having a workshop titled “How to be your own literary agent.” Now understand, if we did that class and you took it, you would then have more formal training than any new agent in New York. Remember, they have none besides trial and error on you and other writers.

To explain why sometimes this option is logical for some writers, I’m going to need to do a little explaining about book contracts from a writer’s perspective, about the skill of negotiating, and also do some math. And put out a warning as to who is the right type of person to do this.

CONTRACTS

Contracts in publishing are your only connection point between your book and your publisher. It lays out what your publisher will do and what you will do. For writers, contracts have the following critically important areas.

1) What rights are you licensing to them? And not licensing to them? And for how much?

2) When and under what circumstances can you get those rights back? (reversion clause)

3) What control over your future writing are you giving this publisher? (option clause)

Just about everything in the contract has something to do with those three areas. There are also warranty clauses which are boilerplate and used to define lawsuits and such with third parties. They can’t be changed and only come into play when something goes very, very bad with you stealing someone else’s work or someone thinking you have. There is a worthless bankruptcy clause that all publishers insist must be in there but that no bankruptcy court has or would ever follow. And some basic clauses about your schedules, rewrites, and what they will do if you don’t turn your book in on time.

All basic. Written by lawyers. In general, not rocket science.

General rules of thumb: License as little as possible for as much money as possible, make sure that when the sales of the book fall under a certain number per month, you can get the rights back, and make sure they only have rights to look at the next book in the same series and genre with the same characters. Basic. Tricky in the language at times, but basic. And if you start working on learning contracts early on, you will be stunned at how much you pick up and how fast.

And remember, if you negotiate it, or if an agent does it, or if an attorney does it, you still have to understand and sign it. So no matter what, you have to understand the contract you are signing. You can pay an agent 15% for the life of the book for help in understanding (if they are a top agent, not a lower level one), you can hire an IP attorney for the help, but either way, you have to learn it yourself. That is really what it boils down to.

Let me say that once more clearly. You MUST understand what you are signing, so get the agent to help or the lawyer to help. No matter what, you must learn it yourself.

Will you make mistakes and sign bad contracts? Yes. Writers with young agents have done it all the time. I’ve seen some book contracts over the last five years from some of my students that are fantastic, and others done by agents that are so bad, I wanted to fly to New York and slap the agent for pretending to know what they were doing and hurting a student of mine. Writers who are desperate sign bad contracts all the time. I’ve signed some pretty horrid ones, to be honest, a couple times knowing they were horrid. But I knew what I was signing.

A year or so ago I saw a contract that an agent had actually made worse for the writer. 100% worse. I couldn’t say a word to the writer because he thought his agent was the best, even though the guy worked for a scam agent and was brand new in the business. This myth is deep and hard to break.

If you believe your book is your baby, and your masterpiece, and the only thing of value you will ever write, the fear in this contract area will be off the charts. But if it’s just another book in a long line of books you are going to write in your career, you can be a little more open-minded about how to go about this contract stuff.

NEGOTIATIONS

This is the area that scares most writers to death. If you are the type of person who flat has trouble asking for a deal from a salesman, or flat doesn’t believe in your own work and think it’s a fluke the editor even wants to buy it, you will need help with negotiations. Maybe. (See the math section below. And to get a clear understanding of negotiations from a freelancer point of view, read Kristine Kathryn Rusch’s Freelancers Guide sections on negotiations.)

Hiring an attorney or an agent to help might be the best choice. But if you have gained some basic knowledge of publishing, are the type that doesn’t mind talking with your editor on the phone, then you might be all right in negotiations.

I am not going to pretend to give a class here on how to negotiate a contract. But again, it ain’t rocket science so let me lay out the basics that will apply in all cases.

1) Ask for more money. Be reasonable, maybe 20% more.

2) Ask for slightly better royalty rates. (Expect to not get them, but you can still ask)

3) Try to hold back all rights you don’t think they need. You won’t be able to hold back electronic, but lots of smaller rights you can hold back. And get as much as you can for your split on the rights that you give them. Also make sure that if a right isn’t used in a two year period, it automatically reverts to you. (Might not get that, but try. And never sell all rights unless you are working media or work-for-hire.)

4) Make sure the number of books sold per month or period in the reversion clause is high enough to trigger when you can ask for your rights back. This is the definition of “out of print” and is critical.

5) Make sure your option clause for your next book is very limited to only the genre and the characters in the book you are selling, not all of your work in all genres.

Then, when you get your contract, maybe have a couple of writer friends who have sold a number of books read it to make sure nothing is hidden. Or hire an attorney for two hours to read it for any hidden clauses you want removed. And to help you understand the boilerplate.

But, again, if you can’t speak reasonably on the phone, have intense fear for one reason or another, don’t try this. Hire an agent or an attorney to do the negotiations.

MATH

Okay, to some simple math that I am convinced will get people screaming at me saying I am being too simple, but until this simple math is looked at, most writers don’t really understand what is at stake.

Book Offer Details: $10,000 Advance. World English Rights. 10&12% Hard, 8&10% Trade, 6&8% Mass Market. Books is planned as a trade. Reversion and option clauses are fine, acceptable.

OPTION #1: Get a Top Agent:

Agent gets advance to $12,000, fixes some boilerplate to agency standards, saves audio and another minor right, gets you ten more free copies that what was offered. Amount to author $10,200 after agency fees and ten more copies of the book. But agent gets 15% of all further earnings from the book.

OPTION #2: Get a Top IP Lawyer:

Lawyer gets advance to $12,000, fixes some boilerplate to standards, saves audio and another minor right, gets you ten more free copies that what was offered. Amount to author $12,000 but $1,500 to lawyer in one time payment. Author gets all money from book forever. No more fees.

OPTION #3: Do negotiations yourself with lawyer checking contract:

You get the advance to $12,000, fix some boilerplate to agency standards after lawyer suggests as a final touch, you save audio and another minor right, get yourself ten more free copies that what was offered. Amount to author $12,000, but pay lawyer one time fee of $500. Author gets all money into the future.

OPTION #4: Do it completely yourself:

You get the advance to $12,000, save audio and another minor right, live with company boilerplate, get yourself ten more free copies that what was offered. Amount to author $12,000. And all money into the future.

Now, to finish the math, let’s say the book earns out and makes another $20,000 more over rights sales and great sales over the next five years. For a $32,000 earning for the book.

OPTION #1: Author earns $27,200 after agent fees of $4,800.

OPTION #2: Author earns $30,500 after one time lawyer costs of $1,500.

OPTION #3: Author earns $31,500 after one time lawyer costs of $500.

OPTION #4: Author earns $32,000.

Did the agent do anything extra to earn the huge amount extra? Nope. In fact, agent got to hold your checks for a while and earn interest on the money before passing it through.

Now, to be clear here, many authors need agents “to take care of them.” If you are of this type of writer, and want nothing to do with learning about the contracts you are signing, instead just trusting your agent, please don’t come to me complaining about something your publisher did. Chances are you signed a contract allowing them to do it and don’t even know it because you trusted your agent.

As I said at the start of all this, I taught this myth myself up until just recently. But publishing is changing so fast at the moment, that the writers who see the changes and stay on top of the wave will be the ones that survive. And one big area of change is agents. Do I think agents will be important in the future? No. Do I think some agents will survive this change? Yes.

Publishers are starting to jump on change as well. At this moment in time, it’s still a tight market, but new writers all over are selling first novels on their own all the time. Sometimes an agent can earn their 15%. But sometimes all you might need is an attorney. Or you might be able to do it yourself.

Every writer is different. Each of us know where we are strong and where we are weak. But remember the days of “marrying” an agent for your writing life are long gone. They don’t help you with careers, they can’t help you stay ahead of markets, and they can’t write so don’t let them touch your work in rewrite. But sometimes they can help you get a lot more money and better terms. Sometimes.

But not always. Start learning contracts, start believing in your own work.

And then on a case-by-case, book-by-book, offer-by-offer basis, decide which way is best to go for you and who you are and the offer being made. Kill the myth that you always need an agent or a lawyer for every book deal.

You might.

But you might not.

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Copyright 2010 Dean Wesley Smith
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Yup, I’m going to go running to an agent to try to sell this book when I am finished. Not! But no matter what happens to this book when finished, this is now part of my inventory in my bakery. (Confused on that, read the Killing the Sacred Cows of Publishing post about making money with writing.) I’m giving you this small slice as a sample. I’m giving you a taste, but not selling any of the pie.

If you feel this helped you in any way, toss a tip into the tip jar on the way out of the Magic Bakery.

And I would like to thank all the fine folks who have donated. Once this book is done, I will send you a copy. The donations and the comments both after the posts and privately are really keeping me going on this. Thanks!

If you can’t afford to donate, please feel free to pass this chapter along to others who might get some help from it. Every week or so I will be adding a new chapter on the myths and sacred cows of publishing. Stay tuned. Upcoming are chapters on bestsellers, losing control of your writing, having it made, speed equals making money, more on agents, and so much more. This business has a lot of myths. An entire book full.

Thanks, Dean


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89 Responses to Killing the Sacred Cows of Publishing: Agents and Contracts

  1. Thanks, Laura.

    I just look at the math. At 10%, an agent needs 10 clients who are making a living wage off of writing to make one him/herself. (Well, expenses aside — and NY ain’t cheap.) At 15%, only 7. Which still seems to me to leave a lot of free time. (Do you spend 10% of your time on submissions and contract negotiations?) I know that’s a simplistic view, but it should be a fair first approximation.

  2. nathan says:

    In terms of numbers as it relates to income this concept of the 15% (or any %) taken by an intermediary can really affect a writer’s quality of life in regards to their income level.

    I wonder how many agents are confident enough in their negotiation skills to have a clause in an agent/writer contract stating that unless they obtain >15% for the author–i.e. the writer realizes a profit *after* deduction of agent fee–the % is waved.

    Of course I also wonder why I sometimes ask questions I already know the answer to.

  3. Alastair, I don’t know what figures you’re using, but I’m guessing that you’re underestimating the cost of doing business in NYC, and probably overestimating what most writer-clients earn. Even an agent (such as my first) who quickly and regularly culls his list of anyone not making big advances needs at least 25 clients to make a good living, and most agents have a client list of about 40-50 writers. Quite a few have clients lists of 75+ writers. I remember my third agent (who raised a family, paid a secretary, an assistant, and a bookkeeper, and rented offices downtown) once telling me that another client, upon learning what his annual office rent was, pointed out that he could buy about 250,000 acres of land in her region for that sum.

    • dwsmith says:

      Alastair, I was going to say exactly what Laura said. Rent in New York is just off the charts. As Laura said, most have 40-50 clients, of which if they are lucky a couple are big names, a number are great earners, a bunch are one book a year midlist, and a number of “projects” they are hoping to earn from.

      I’m going to be talking about this topic more shortly, in the next week or so, because under the current system, agents just can’t maintain offices and such and spend the time rewriting all their clients and things like that. Math flat doesn’t work for them which is why we’re starting to see so many of the rewriters quit agenting. Simple economics.

      Here’s how the thinking of so many went: Young editor gets laid off, jumps to agenting because it takes no training. They think that because they call themselves an agent, writers will come, and they are correct. They get flooded with crap. So they think “If I can just find something that I can help the writer rewrite.” So they spend their time reading slush and sending rewrite letters. (All no money work.) Then when they do find something they are excited about, but their five friends in editing offices aren’t, they give up because they have so much more to deal with. (again, no money activity) And thus not enough sales because the focus on sales and finding quality clients and letting them just do their thing isn’t there. Eventually they discover that it’s not working, money isn’t what they thought, they blame it on the tight industry instead of themselves, and quit. A few lucky ones managed to get into a larger agency that pays them a salary, so them maintain a little longer. But watch the wave of this type of agent bailing. It has already started.

  4. “In terms of numbers as it relates to income this concept of the 15% (or any %) taken by an intermediary can really affect a writer’s quality of life in regards to their income level.”

    Like I said, so far, the difference between what I’m paying in legal fees these days and what I WOULD HAVE paid on these exact same deals in agency commissions (but as an unagented writer am instead pocketing) is at least $6,000 per year for the third year running. (And unless something goes terribly wrong–always possible, since this is publishing!–the sum of that differential will rise this year.)

  5. “watch the wave of this type of agent bailing. It has already started.”

    Yep. We’ve been seeing it for a year or so now.

    As already discussed here, another change we’ve seen this past year is that a high-profile agent who also had the “ask clients for rewrite after rewrite after rewrite, then don’t sell–or even send OUT–the book” pattern… has now taken to referring clients, instead, to “freelance editors” to help them make their MSs “submission-ready”… and NOT disclosing that the three people he’s referring them to all have fiscal interests in common with him (one of them being, for example, his WIFE). This scam is evidently the agent’s solution to a profitless practice (reading draft after draft of a MS, requesting rewrite after rewrite of it, and then not even selling it) that he can apparently no longer afford to continue.

  6. Amanda McCarter says:

    These myths are so deeply ingrained and I agree with Laura that the media has a lot to do with it. I’ve been watching “Bones” on my Netflix and can’t help but notice that the main character Dr. Temperance Brennan is totally clueless about her book. This character is supposed to have a genius IQ and could really care less about her sales and is often left at the mercy of her publisher and publicist. And this is treated as perfectly normal in the series. *eyeroll* No wonder writers are clueless. The media makes it look perfect.

  7. “Eventually they discover that it’s not working, money isn’t what they thought, they blame it on the tight industry instead of themselves, and quit.”

    I have a feeling that we’ll also see the number of agents leaving the business rise–more this year than last, more next year than this. And for additional reasons. Besides the practice of not-actually-selling-books being economic suicide for many agents in a tougher economic climate, there are additonal factors eroding agent income, which factors I think will likely squeeze a percentage of inept and mediocre agents out of the field over the next, say, five years.

    A huge one obviously is that the vast majority of agents have omitted themselves from the sudden rise of the e-books industry with specific regard to their clients’ backlist.

    Let’s say you’re an agent with 50 clients. Let’s say that in the next two years, 60% of them decided to e-publish their own backlists (i.e. 30 writers–we’ll assume in this conservative example that 40% of the clients won’t become involved in e-publishing at all for a variety of reasons, ranging from inertia and disengagment, to having their backlists active via their regular publishers). These clients will be generating income for themselves of which the agent has no part–which has really never before happened with backlist.

    Now let’s say you’re a client whose agent refuses to send out your new project. For most writers up to now, that has meant the project just sits in a trunk, not earning. But now a number of those 30 clients who can see their backlists earning money via e-publishing are going to say to themselves now, “Hey, maybe instead of letting this project never see the light of day because my agent won’t market it, I’ll self-publish it electronically and see what happens.” As with the e-backlist, this will now be a source of client income from which the agent is excluded.

    Meanwhile, advance levels have sagged for everyone but mega-sellers, and current predictions are that they may never go back up across the board, because of the way the market is reshaping. (Thus you can now make the NYT paperback bestseller list with numbers (and an advance level) that wouldn’t have even gotten you into the ballpark a few years ago.) So the sales the agent is involved in will, in many cases, be for lower advances than those same books and market-positions would have gotten 3-4 years ago (let alone 10-15 years ago).

    Many writers whose NYC advances are lower than they would have been a decade ago will be making up the shortfall with e-book earnings. Agents, by having omitted themselves early on from that source of income, will NOT be making up for their lower NYC commissions/earnings by earning from their clients’ self-generated e-book activities. (And that ship has sailed. Who will be stupid enough hereafter to pay a commission on self-published e-books–whether backlist or new titles–now that writers have already pioneered in this area and proved WITHOUT THEIR AGENTS that it’s profitable?)

    So at a time when income streams are opening up to clients WITHOUT their agents, income streams from the source (major publishing) that agents focus on have become more modest. By combining new income streams with old, writers will do fine. By failing to combine new income streams with old, agents who aren’t running their businesses with real effectiveness will suffer financially–to the point, in a percentage of cases, of having to leave the business.

    And others, as we’ve already seen in at least one high-profile instance, may try to compensate by urging clients to pay thousands to a freelance editor whom the agent recommends to the client without disclosing that the “editor” is actually the agent’s spouse or business partner. Others, as we’ve already seen in at least one well-known instance, will start charging reading fees, despite the AAR’s prohibition against this, deciding that paying rent is more important than pleasing the toothless AAR. Others may return to a practice that a few agents were exercising when I was new to the biz: charging annual “marketing fees” to client (which translates into, “You want me to work for you, pay me a retainer up front IN ADDITION TO the 15% I’ll collect if I actually make a sale).

    And a number of those agents will survive because, as history teaches us over and over, they will lways be able to find writers insecure and/or dumb enough to go along with those practices. But some of them won’t survive, because if you’re already bad enough at your business to need such practices, you’ve probably got problems that will snowball faster than your sleazy solutions. And agents who are inept and mediocre WITHOUT being sleazy will, in a rising percentage of cases, probably NOT survive.

    And that’s all in addition to the interesting predictions made recently (in private) by another writer, a longtime, successful pro who thinks that the growth of both e-books (a reader can increasinfly buy an ebook from anywhere in the world, not needing a PHYSICAL copy of it to be in your marketplace) AND sophisticated translation software will eventually eliminate (or at least radically alter) the foreign subrights market as we know it. By utilizing these technologies, in another decade a reader in Bulgaria, Germany, Japan, or Brazil can simply go online with her/her translation decide and shop for books worldwide without the intermediary (and costly) stages of the books being resold, translated, and repackaged in his home country. If so, that would eliminate the foreign subrights business of most US agencies.

    • dwsmith says:

      Agree on all of that, Laura. Very well said.

      But I still think we will see a new form of agent arise in this new world, a “shopping agreement” agent after the model being used a lot in Hollywood. Or a better way of putting it is a new form of packager.

      Agent opens up for business, has writers send work, searches the noise of the web for good projects, then offers the writer a fee to shop their book to major clients. That’s right, an agent (or packager) gives the writer a fee in exchange for an exclusive “shopping option” to take the book out to sell it. If the focus of online publishing keeps increasing as it is now, this option becomes real.

      And it will need to be started with some hot new writers who are making hits with online sales demanding a shopping fee just as we do now with Hollywood agents and packagers. Will this happen in five years? Probably not, but fifteen, maybe we’ll be seeing this. There has to be systems to get through the noise as it is called with online publishing. Lots of new systems will come about. Maybe publishers will have these folks working in house, a new form of slush reader? Who knows. Interesting times, but clearly this current agent model is doomed to shrink and maybe mostly vanish over the next 25 years.

  8. In addition to the model that Dean postulates, I’ll be interested to see if what sort of other business models may evolve. We’re already seeing some interesting publishing and promo models emerge among writers (such as BookViewCafe.com). And due to how many agents are refusing to handle established career writers these days, I’ve seen many writers suggest amongst themselves for the past year or two that some of them should think about organizing a cooperative to fill the void left by agents.

    So I’m curious to see not only if more writers in the coming years will turn to IP attorneys and self-representation, but also whether, for example, a dozen multi-published writers who can’t get an agent anymore will eventually get together and form a cooperative business for marketing and selling their books–in the way that writers got together 20-50 years ago and formed collective advocacy-and-education groups like RWA, SFWA, NINC, MWA, SinC, etc.

    Although we see ample evidence every day that it’s VERY hard for people to shed the conventional “wisdom” about the agent-author business model as the ONLY viable system of career management for a novelist… I think a shift away from writers seeing that as the only way to run a career will gradually emerge due to a combunation of the changing market, and the new discussion entering the ether (which Dean is helping generate via his blog), and the behavior of agents minimizing their own viability.

  9. Yeah, I figured I was underestimating NYC costs … but not by an order of magnitude, which perhaps I was.

    Crazy business indeed. When I was with HP we’d have weekly team meetings (by phone and netmeeting) with members spread across three continents and about seven time zones. There hasn’t been a real reason for everyone to be in NY for years, decades even. Just tradition.

  10. Mary Jo Rabe says:

    So far translation software isn’t good enough for fiction (translation of fiction is more of an art than a science), and I doubt that it will be soon. Authors who want readers to enjoy their books need to have the books translated well. But never say never …

  11. “But never say never …”

    Mary Jo, precisely. We’re not there yet. But, for example, a few weeks ago, when looking at a review in German for a book of mine, I clicked on a translation device… and the English came out not too bad. Enormously better than it would have just 3-4 years earlier. So the progress on translation software is moving at a pace that will make it a viable tool for readers in our lifetime, IMO–and possibly within a decade.

    “I figured I was underestimating NYC costs … but not by an order of magnitude, which perhaps I was.”

    Alastair, I haven’t seen the books, but I have a feeling that one of the smartest things Jim Baen ever did for his company was move Baen Books out of Manhattan (to North Carolina) several years ago. With that move, I imagine he cut the company’s fixed expenses in half, due to how subsantial the reduction in rent/leasing office space (as well as real estate taxes) would have been.

  12. Interesting evening. Talked with a writer who has fired the literary agent because, after 7-8 years of collecting commissions just to place a phone call to the same editors every year or two to re-option the writer, NOW the writer had the unmitigated gall to (while still maintaining the steady relationship with that house) write a new MS that isn’t right for that house and will need to be, oh, sent out into submissions. AFter years of collecting 15% of the writer’s income for making a phone call every year or two, the agent decided that MARKETING a book was WAY too much work to be expected to do, and terminated the association.

    (Since this happens to be one of -my- former agents, I’m not in the least but surprised. The agent’s dislike of, oh, working was the reason I left.)

    The writer–someone, let us keep in mind–who has a steady relationship with a major house AND had a new, separate project to market–then queried another agent… and kept getting the brush off. FInally tired of this, and eager to get on with business, the writer decided to quit the agent-author business model–and, voila! Things are going fine. The writer has made a new deal with the regular publisher (and, as a result of no longer paying 15% to an agent, the writer’s income is increasing), and already has a list of viable markets for the new project whose existence preciptated that agent’s decision to terminate the relationship.

  13. SThomas says:

    I wouldn’t miss an installment of the Cows series for anything :)

    But one thing keeps coming up, and you brought it up here – a rights grab contract being bad. You even mentioned Harlequin by name.

    Harlequin is one of the only publishers for certain kinds of genre fiction. I’m starting to think “the” only. There simply isn’t anyone else willing to buy short novels/novellas in the non-erotic romance genre. Believe me, I’ve looked. I’ve sold them two books, and I’ve got a third manuscript in my hands waiting for a home. I’ve been holding on sending it to them in hopes of finding some other publisher, one that won’t take all rights including those not yet invented (that’s not a joke, as you may already be aware).

    I have a small following, but not nearly enough to match Harlequin’s distribution, reach, and brand loyalty from consumers. And all I have to do is write – I don’t need to edit, lay the book out, provide cover art, or all the rest.

    At the same time, I’m so sick of them never exercising half the rights I have to sign over. Their contract is famously not negotiable, but I still tried. I think the lawyer snickered.

    But with no one else buying my kind of stories, my choice comes down to be published with them or write for my cat.

    The only bright side is that I don’t have an agent.

    Sorry this is so long, but it’s been building since I first saw you say we shouldn’t sign rights grabs. So, what about Harlequin writers? What do we do to take control of our careers when one publisher is the only decently paying game in town?

    • dwsmith says:

      SThomas, Actually, I have no problems with Harlequin if a writer goes into a contract with them with eyes open. Harlequin does buy a lot of rights, but they tend to use them all, unlike many publishers, and they have a worldwide publishing system up and running. So if you are writing and selling to Harlequin, I have no problem with that.

      Where I have a problem is writers thinking there are only one market. You are correct that they are pretty much the only game in town if you are writing category romance, but you have the choice to not write short romance novels and jump to writing single title, which has hundreds of publishers. So thinking you are stuck is your issue, not Harlequins I’m afraid. Sorry to be so blunt, I’m in workshop mode right now teaching a workshop here in town, and tend to be that way. (grin) Clearly your fiction is worth publishing and professionally written, just jump to single title and move on, or write other genres or subgenres of fiction. You have slotted yourself down to Harlequin being your only market by your choice of novels. Change that choice and the world becomes huge.

      But if you decide to keep writing for Harlequin, stop trying to fight the windmill and just enjoy the writing and the money the books do earn. Can’t change Harlequin. But you can change your choices of what to write. Good luck, again sorry to be so blunt.

  14. Zoe Winters says:

    On the negotiation point… I think most writers, at least most new writers do need someone to negotiate for them. The rule of negotiation is that the person who wants it the most, loses. And almost always the writer wants it the most. They just have too deep a need to be validated in that way if they’re new.

    The only way you have a prayer of getting what you want in a negotiation is to always be the one willing to walk away from the deal.

    Also, the whole inability to hold onto electronic rights is the major reason I can’t see myself ever wanting a NY publisher unless their offer was so ridiculously large I’d be a fool to turn it down. Even then, meh. I don’t like the idea. Too much is changing in publishing and ebook rights are going to become a very very big deal very soon, IMO. Bigger than they already are. And I can’t have somebody without any common sense pricing my ebook too high for me to gain a following.

  15. I’ve always thought, regarding negotiations, that the only way to succeed in them is to remove all emotion from the table. The person who is most emotional about the negotiation always loses, and that is the source of the need to be validated, as you say, Zoe.

    Granted, removing all emotion is impossible, but when negotiating, one has to become not the writer, but the negotiator, almost like a split personality. If you read books about how to be a good negotiator, they always say something like, “I learn all the facts of the negotiation, and then I shut off all personal feelings, and argue only on the facts,” or something similar.

    It’s sort of like becoming a computer for a minute, and making only rational decisions. I’ve been in negotiations in the past for deals worth hundreds of thousands or millions of dollars for my company. I really, REALLY wanted to make those deals. But I could never let that sway me into taking a deal that was bad for the company. I was always willing to say “no,” but my goal was always to get to “yes.”

    And as you (and many others) say, if you’re not a strong negotiator, absolutely DO NOT attempt it yourself. If you can’t take the emotion out – and I understand some can’t, and that is okay – then by all means hire someone else to do it, because you will likely lose if you don’t.

    And as Dean and others have written, the other reason to use an independent negotiator is when you don’t know the industry customs in negotiation, which is often the case among neophytes.

  16. Speaking of negotiations, my wife bought me (for Father’s Day and ‘welcome home from the novel workshop’) a copy of Mark Levine’s Negotiating A Book Contract. Even if I ultimately end up hiring someone else to negotiate for me, I want to be able to judge how well they’re doing the job, and the book covers a lot of detail. It also complements my older copy of Richard Curtis’s How To Be Your Own Literary Agent. I’m a great believer in knowing how to do something even if planning on hiring an employee to do it. (I’m undecided about an agent — I’m leaning towards not, but I could name about four I’d be willing to go with, if any of them would take me.)

    And I see elsewhere on the web today some nattering about agents wondering whether to raise their commission to 20%. Yeah, good luck with that.

  17. “And I see elsewhere on the web today some nattering about agents wondering whether to raise their commission to 20%. Yeah, good luck with that.”

    Alastair, I’ve been following this discussion on Writer Beware (originally introduced, I gather, by an agent on Twitter).

    Not remotely surprised to see the subject being raised. With various agents and agencies going out of business in the past year or two, others struggling, and some of them attempting disturbing new methods of enhancing their income (ex. charging a fee to put writers’ query in the FAST reading pile; referring clients to a fee-charging freelance editor who just happens to be the agent’s SPOUSE; etc.), it was only a matter of time (and probably not a LONG time, I thought) before the possibility of raising commission rates reared its head.

    I won’t be at all surprised if some agents attempt it. After all, raising commissions from 10% to 15% worked out perfectly well for them, so from their perspective, what would be the perceived deterrent against implementing another commission hike? None, I assume.

    If done on the same basis that the hike to 15% was done, I suspect it could be implemented very smoothly: Keep current clients “grandfathered in” at 15%, but raise rates for all newly-acquired clients to 20%.

    As we’ve already seen in the Writer Beware discussion, quite a few writers would be willing–nay, eager! delighted!–to pay 20% to an agent. Meanwhile, many agents are overwhelmed by the current size of their query piles. So an increase to a 20% rate for new clients would probably reduce the size of the query piles only a little–and that little would be a relief to most agents, rather than a source of regret.

    And then, at some later date when most/all agencies are charging 20% to new clients, then (as happened with the 10% to 15% hike after a few years), the agents can inform their existing 15% clients that rates are shifting to 20% for them, too; and the 15% clients who think that’s too expensive will look around and realize that if they live this agent and move to another one, they’ll be a new client there and thus subject to a 20% rate… so switching agents will be a lot of hassle and effort… for no actual benefit. So they’ll mostly stay put.

    I’m not predicting that a hike to 20% WILL happen, but I’m not at all surprised to see the subject has been raised; I won’t be surprised if it’s attempted; and I believe that if attempted, it’s very likely to work out fine for agents. I think too many writers and aspiring writers are so convinced they MUST HAVE an agent that, although there may be some grousing and protests, only a very small number of writers will actually quit the agent-author business model on that basis.

    However, from my perspective, a hike to 20% among literary agents would certainly serve to make self-representation, the business model under which I now work, look EVER BETTER to me than it already does. Some simple math:

    For the past couple of years, the -difference- between what I pay a literary lawyer to negotiate my deals and what I WOULD HAVE paid an agent at 15% for those exact same deals has been about $6000 per year.

    The -difference- between my legal bills and an agency commission on those exact same earnings to date, if agency commission were 20%, would be about $8500/year.

    For a pricetag like that, I want to know what an agent proposes to do for me that’s not already covered.

    As I wrote in a recent draft of a NINK column, since I quit the agent-author business mode, my response times have improved, my advances have increased, my contractual terms have improved, and my foreign subrights business has increased. So, REALLY: What does a literary agent propose to do for me that’s worth even 15% of my income at this point–let alone 20%? =Particularly= considering how much improvement I’ve seen in my business while ALSO no longer paying an agency commission?

    • dwsmith says:

      I’m with you completely on this, Laura. I also have been following the silliness of this 20% crap and had half expected it since this new agent working method isn’t good for income. No money in reading slush or helping a writer rewrite.

      I’ve got a “Cows” post coming called “The Myth of 15%.” I’m trying to make sense of all this history behind all this and what is going on. With luck, sometime later in the week.

  18. I finally have time to go back and read these posts.

    Laura: you’re very welcome for the tour. Rita and I enjoyed it as well.

    I’m shocked no one thought of the sliding scale for commissions before now. Wow!

    The only conclusion I can come to is sadly most writers are afraid to question anything their agents say or do. This is so ridiculous I have to hold myself back from laughing in peoples faces when they tell me things that sound like this is what’s happening.

    That’s all I need, new enemies.

    The other reason I expect is what you suggest, Laura. If the bestsellers do have deals like this (if they even have agents which when you think about it seems ridiculous. How would an agent get a mutli-million dollar contract any higher?) then their agents sure wouldn’t tell anyone.

  19. Indiana Jim says:

    I’m late to the party, but I think I’m going to have my WIFE learn publishing contracts and let HER negotiate!

  20. Wow! Thank you! I continuously wanted to write on my website something like that. Can I take a portion of your post to my blog?

  21. Martin L. Shoemaker says:

    Very late observation here, Dean, but there’s an Option #5 assuming your numbers. Option #5 is where the author is a lousy negotiator but a good writer. So the author gets no additional advance, but the book still sells out. That means $30,000, which is STILL better than the agented deal.

    That’s a shocker. Assuming your hypothetical numbers, all the agent has done is negotiate his own paycheck into the deal. In this example, you’re numerically better off blind and dumb than blind and dumb with an agent.

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