Konrath did an interesting look at the situation with super agent Wylie and his new move. I don’t agree with him in all areas, mostly in his thinking that publishers will fail, but it is interesting reading.
Find it here.
Dean’s Short Bio
Bestselling author Dean Wesley Smith published traditionally more than one hundred popular novels and well over two hundred short stories. His novels include the science fiction novel Laying the Music to Rest and the thriller The Hunted as D.W. Smith. With Kristine Kathryn Rusch, he co-wrote The Tenth Planet trilogy and The 10th Kingdom. He writes under many pen names and ghosts for a number of top bestselling writers.
Dean wrote books and comics for all three major comic book companies, Marvel, DC, and Dark Horse, and wrote scripts for Hollywood. One movie actually saw film.
Dean also worked as an editor and publisher, first at Pulphouse Publishing, then for VB Tech Journal, then for Pocket Books. He now plays a role as an executive editor for Fiction River.
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Good stuff, Dean. Thanks for posting it. After reading it, I have to wonder why any author would want their agent to be their e-distributor of their ebooks. Why not keep the e-rights for yourself and manage the e-book versions yourself? It’s not terribly hard to learn how to do it and you don’t have to share the proceeds.
Just another example of how interesting the times are for publishing. It’s a vastly different business than it was even 5 years ago, and I’m sure it’ll be even more different in another 5 years.
Wylie has made the most sensible statement about this, telling the NYT: “This area of discussion and negotiation needs to be resolved.”
It sounds from the Guardian article what publishers are saying is that they won’t deal with Wylie because he’s violating contractual terms they have with the authors, not because he’s selling e-books. And, yeah, if an agent violates dozens of contracts, that is indeed a BIG problem
However, the article is also not clear (short deadlines, lack of expertise, etc.) whether Wylie -is- violating contracts. Random House has previously tried to -assume- they held e-rights in older contracts which did not actually assign such rights to them. If that’s what’s happening here, Random House would have a lot at stake (a big house of cards) but would be in the wrong (albeit with lots of lawyers to help them).
Whereas if Wylie intends to e-publish any books to which e-rights -have- expliticity been licensed to the publisher, which has been standard practice at a number of houses for several years now, there may be titles included in Wylie’s plans for which he would indeed be creating contract violations.
Without reliable information about whether contractual terms are indeed being breached, it’s not clear what’s going on. Possibly a bit of BOTH things, i.e. publishers trying to claim rights erroneously on older contracts and an agent breaching newer contracts.
Raymond Feist often quotes a phrase which should be in every contract, to the effect that any rights not explicitly granted herein to the publisher reside exclusively with the author. I’ve wondered for a while whether a phrase of that sort was in all those contracts where Randon House is claiming e-rights are -implicitly- granted to them in older contracts.
Laura, my reading of the many articles on this is that Wylie is claiming e-rights and using them for books that had no mention of such rights in contracts signed in 1950s and 1960s that are still in effect. Random house is saying that the e-rights were part of the package, even though not mentioned. And thus lawsuits are born.
Nice to have big money on the writer’s side on this one. And yes, 80% of Wylie’s clients are estates.
P.S. I also think Konrath’s blog about the dispute misses what’s relevant, which is what those many contracts in question actually say, and whether Wylie’s actions create breach of contract in any instances.
If a writer has already signed (and an agent has negotiated for that author) a contract with e-rights which now seem unfair or inadequate–tough. Everyone gambles when they sign a contract that they have negotiated what’s best for themselves; then time tells and fate unfolds. If the e-book terms seemed acceptable at the time of signing and the author signed, then what’s relevant is that the author signed, not that circumstances have changed so much since then that the terms no longer seem acceptable.
Right now, for example, publishers are paying out the second half of advances on any number of deals made several years ago, when the market was better and those seemed like reasonable advances; these days, those advances are too high for this market–but the deals were signed then, not now, and so those advance levels are being honored.
“Why not keep the e-rights for yourself and manage the e-book versions yourself? ”
Jim, with 700 clients at the Wylie Agency, impossible to say what the overall scoop is on this. But I noticed that in the Guardian article about this, the titles mentioned were by writers who are either dead or very old, and whose estates are quite well off. So in the instances specifically cited, these are probably people who’ve never managed those intellectual properties directly and/or who aren’t that comfortable with technology and/or for whom paying someone else to do something is a preferred use of their time/money resources.
I think that shows some business creativity on Wylie’s part. They found an untapped market and tapped it. Sure, there are opportunities to violate their clients’ best interests, but how is that different from any other agency’s M.O.? We don’t know the nature of their agreements with their clients; unless someone steps forward to complain we can only assume they’re satisfied. I think Random’s response is a bit heavy-handed (unless they know something we don’t), but there’s been a lot of that going around. (grin)
Speaking of untapped markets, back when you butchered the “writers being taken care of” Sacred Cow, I had a thought. If a writer doesn’t want to deal with the business aspects of writing maybe he doesn’t need an agent, but rather a business manager. What does a landlord do if he doesn’t want to deal with the day-to-day operation of his properties? He hires a management company. Why shouldn’t a writer have that option?
In the world inside my head, a writer’s manager would handle things like sending out and tracking manuscripts, reviewing royalty statements, bookkeeping, and “other duties as assigned.” If the writer decided to self-publish a work the manager would handle interactions with freelance editors, copy editors, printing or formatting services, distributors, and retailers. The manager would be paid a fee, not a percentage. (I know that would violate the “money flows to the writer” rule, but as we’re seeing, this ain’t traditional publishing any more.)
Having a manager would require the writer to be more involved in the decisions that affect his business: where to submit, whether to self-publish, how and where to self-promote. But it relieves him of the drudge work so he can get back to writing.
From the manager’s point of view, his responsibilities are clearly defined. He’s not responsible for his clients’ work – he’s not involved in the editorial process at all – he just handles the clerial tasks. He can offer services to many writers and gain economies of scale. He’s not on a commission, so he gets paid whether his clients sell a work or not.
This seems like a service existing agents could offer. Most of them (well, the ones who have actually done agenty stuff) already know what kind of work is involved because they’ve been doing much of it. A large agency could offer it as an alternative to their usual services. Solo agents could decide a steady income is better than playing the bestseller lottery and switch over to being a manager.
Or did I miss something? Is this already happening?
Dave, your post made me shudder. A horrid idea, just horrid. Give everything to another person to take care of is how writers and other artists get ripped off, and it would happen in what you described with this manager.
If you are going to work in an international business, you have to learn and do the business. Hire a local secretary to file and do mailing, but past that, any kind of business like Wiley who claims to take over and do all the work for their clients is just a road to ruin.
Horrid idea. Sorry. Just goes right back to having someone take care of a writer instead of having the writer learn his or her own business.
It’s a sign of the times. I’ve actually wondered why something like this hasn’t happened before now.
More changes will be on the way, and who knows what will come?
I, too, tend to disagree with Konrath about the demise of the major publishers, though I agree with much else he has to say. The big publishers are going to have to go through some major changes in the next few years, perhaps longer, but most if not all of them will survive. The tipping point’s going to be when one of them figures out a productive, money-making model concerning the whole digital/traditional publishing debate. Once that happens, the rest will jump on board. Of course Amazon and other online venues are going to have their say, but eventually something’s going to happen.
And I can’t help but wondering if Jim Baen were still with us, he might’ve already had all this figured out. Maybe, maybe not, but the man seemed fairly smart when it came to looking ahead at the technology (not that there aren’t some smart folks at Baen today).
Ty, don’t lose sight that this technology has nothing to do with coming from the inside of publishing. Think of publishing as a huge ship plowing along through the ocean. Doesn’t turn quickly. Suddenly huge tug boats called Kindle, iPad, and other devices ran directly into the side of this huge ship and started to push it sideways from the outside. The reason this hasn’t happened before is because this is brand new technology. ePub of books has been around for over twenty years, but who wanted to read stories on computers sitting on desks? This is all brand new. Very, very new. Still in diapers in human terms. No one knows how this will grow up, but we all know it will.
“Random house is saying that the e-rights were part of the package, even though not mentioned. And thus lawsuits are born. ”
Since Wylie is a big player with a lot of writers/properties at stake in that debate, would be interesting to see this go to litigation–interesting, that is, to legally establish (we hope) that publishers have no possession of rights that a contract doesn’t not EXPLICITLY grant to them.
Exactly, Laura. And the fact that Random house and others are making these rights grab just makes me angry. Glad someone with Wylie’s clout and writers behind him are standing up to them, just not sure about his methods yet. Time will tell.
“Time will tell.” I seem to be saying that a great deal about a number of different things at the moment. Wow are things changing fast. Stunning.
Dean, I apologize. I guess I switched topics without warning.
I’m not suggesting anyone give up their business to Wylie or anyone else. I’m suggesting that there might be a market for what my corporation calls “shared services,” a pool of people who do mailing, record keeping, scheduling, making phone calls, and getting price quotes. They don’t negotiate deals, they don’t sign checks, and they don’t have access to anyone’s money. I called the person who does that job a manager because I was thinking of an office manager – somebody who makes sure the mail goes out and the phone gets answered according to the will of the boss – the writer.
Lots of bestsellers have had people like that for years, Dave. Normal if you have the cash flow. Personal assistants or secretaries is what they are called. A couple writer friends of mine have two and three employees that do that stuff. I thought you meant a service like an agent with shared duties and unless you have a bunch of writers in the same town, I couldn’t imagine it working.
Dean, I understand what you’re saying. The Kindle itself is only, what? Three years old? If that? Wasn’t it Christmas 2007 when it came out?
I just figured an agent would have tried something like this before now. I realize there’s going to be a lot of trial and error over the next several years, some of it to be decided by judges (which I’m not sure is the best route, but somebody’s got to make a final decision).
Ty, Kindle was just the start and that took a full year to ramp up to anything of value. Some of this stuff is less than one year old. That’s how fast this is moving. It’s shoving an industry that takes decades to change slightly sideways at light speed. And another reason New York publishers are slow to react to this is that they have been preparing for twenty years every year. As one New York editor told me back in the mid 1990s, he had 90% of his meetings about the 1/10th of 1 percent called electronic sales. This went on and on for over a decade until New York just got tired of it and took a wait-and-see attitude. Then suddenly it was here and not the way everyone expected.
“Lots of bestsellers have had people like that for years, Dave. Normal if you have the cash flow. Personal assistants or secretaries is what they are called. A couple writer friends of mine have two and three employees that do that stuff. ”
And here’s another potential new business model, though it would only be feasible for major bestsellers:
In the Bombay film industry (I’m a huge Bollywood fan (g)), rather than agents, the major stars have personal assistants who fill the function that an agent fills in Hollywood. That is, if I’m an Indian producer and I want a star to be in my film, I call his assistant and negotiate terms and fees with that employee; the assistant works ONLY with that one star (and handles many tasks and duties for him), rather than maintaining a stable of clients.
Obviously, no midlist writer’s career would sustain a career agent on that basis. But a top bestseller’s career would (especially if the fee negotiated for the “agent” also included their services in a variety of other admin tasks). And, indeed, I think that one of my former agents may be headed in that direction, focusing more and more on just the top client on the list and shedding other clients along the way as “no longer worth the time.”
I guess cash flow would be the deciding factor, Dean. If you’re just starting out you wouldn’t have the money to spend on an assistant, which is okay because you wouldn’t know what to tell them to do anyway. So you have to do it yourself and learn the ropes. Neat how that works out.
Here’s some quotes from the Author’s Guild post in December 2009 about Random House’s grab at e-rights on old contracts:
**snip**
… On the second page, Mr. Dohle gets to the point. After noting that most of Random House’s backlist titles grant the publisher electronic book rights (we agree, since most backlist titles are from the past ten years, a period in which authors have generally licensed electronic rights in tandem with their print rights), he writes that “there have been some misunderstandings concerning ebook rights in older backlist titles.” He then proceeds to argue that older contracts granting rights to publish “in book form” or “in all editions” grant electronic rights to Random House.
The misunderstandings reside entirely with Random House. Random House quite famously changed its standard contract to include e-book rights in 1994. (We remember it well — Random House tried to secure these rights for royalties of 5% of net proceeds, a pittance. We called it a “Land Grab on the Electronic Frontier” in our press release headline.) Random House felt the need to change its contract, quite plainly, because its authors did not grant those rights to it under Random House’s standard contracts prior to 1994….
It’s regrettable and unhelpful that Random House has chosen to try to intimidate authors and agents over these old book contracts. With such a weak legal hand, it would be well advised to stick to its strength — the advantages that its marketing muscle can provide owners of e-book rights. It should also start offering a fair royalty for those rights. Authors and publishers have traditionally split the proceeds from book sales. Most sublicenses, for example, provide for a 50/50 split of proceeds, and the standard trade book royalty of 15% of the hardcover retail price, back in the days that industry standard was established, represented about 50% of the net proceeds of the sale of the book. We’re confident that the current practice of paying 25% of net on e-books will not, in the long run, prevail. Savvy agents are well aware of this. The only reason e-book royalty rates are so low right now is that so little attention has been paid to them: sales were simply too low to scrap over. That’s beginning to change.
**endsnip**
Full article at:
http://www.authorsguild.org/advocacy/articles/random-houses-retroactive-rights.html
Laura wrote:
Obviously, no midlist writer’s career would sustain a career agent on that basis. But a top bestseller’s career would (especially if the fee negotiated for the “agent” also included their services in a variety of other admin tasks). And, indeed, I think that one of my former agents may be headed in that direction, focusing more and more on just the top client on the list and shedding other clients along the way as “no longer worth the time.”
Janet Evanovitch has just done this. Her son has been doing a lot of the business end for her and I believe I recently read that she has left her agent and her son is now her representative. She’s got her whole family involved in her writing business, and apparently the son/agent is pretty savvy.
“”Janet Evanovitch has just done this. Her son has been doing a lot of the business end for her and I believe I recently read that she has left her agent and her son is now her representative. “”
Pati, interesting! Thanks for relaying that. I’ll keep an eye out for more news about that.
Could it be the early harbinger of a new business model being introduced by major names? Or will it be a one-off? Will be interesting to see.
Many mega-star writers may not have a family member well-suited to manage their careers and represent their work, but it’s not impossible to imagine that when a writer realizes she’s paying $300,000 or more to her agent, she might start thinking, “You know, for that level of annual payment, I think I’d like a business rep whose time I’m not sharing with other clients, and who can perhaps offer me more services than I currently get.”
“In the world inside my head, a writer’s manager would handle things like sending out and tracking manuscripts, reviewing royalty statements, bookkeeping, and “other duties as assigned.” If the writer decided to self-publish a work the manager would handle interactions with freelance editors, copy editors, printing or formatting services, distributors, and retailers. The manager would be paid a fee, not a percentage.”
It sounds more like a marriage – isn’t that what wives do? (LOL)
heteromeles, I first allowed your post and then trashed it along with my two very, very angry responses to it. If you can’t figure out how you insulted me and a thousand other top writers with that post, write me off line.