More Agent Stuff

Okay, here I go again. Attacking agents. But before you read any farther here, go read the post by Matt Buchman on his four book deal and his agent saga, or better put, lack of an agent saga. He ended up using an IP lawyer because no agent would deal with him even though he had a FOUR book offer from a major New York publisher in his hand.

His story is here: http://www.matthewlieberbuchman.com/?p=12

So my questions is this: Have agents lost their minds? One agent wanted to hold all rights forever, even after the original contract was finished. Nope. Matt smartly laughed and walked away. And if you want to see how ugly that can be, reread some of Laura Resnick’s great comments after the agent posts in Killing the Sacred Cows of Publishing (tab at the top of this page).

And the other three attempts Matt made with agents went nowhere, to the point where the editor was worried about so much time going by and Matt smartly went with an IP lawyer and did most of it himself.

I have always given the advice that the best way to get a top agent is get a major publisher to offer you a deal, then call the agent you want to work with to help with the contract. It’s free money to the agent. It seems that now I will no longer ever give that advice again.

My advice now: Go sell your own books, as Matt did with his four book deal, then call an IP Lawyer as Laura Resnick suggested. (Names on her site and on NINC site.)

Agents have lost it. Matt offered four agents a four book offer in his hand. Free money. Three didn’t bother and one wanted to control his books forever.

Free money. Matt was offering agents free money to simply negotiate a contract! 15% of the books and all the side stuff that will go along with the books and all their earning power under that contract.

Free money. And he couldn’t find an agent to take his money.

So I stand by my question: HAVE AGENTS LOST THEIR MINDS?

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93 Responses to More Agent Stuff

  1. heteromeles says:

    Math Part 2.

    Laura brought up a great point about the high turnover of agents.

    To me, this suggests a huge problem with working with any agent: they’re probably not going to be in business very long.

    This is okay if you’re only planning on having a book earning money for one year. However, if you’re planning a “magic bakery” like the one Dean has, watch out.

    Imagine how much “fun” (not!) it will be to have your agent go out of business, go bankrupt, or sell the agency business to someone else.

    I know very little about legal contracts with agents, but I can easily see a work getting tied up by the failure of the agent. The publisher and author may be in total agreement about the future of the work, but the former agent’s creditors may cause problems as they try to get “their share.” Furthermore, said creditors may know nothing about the literary industry.

    To me as a novice, it looks like agents are likely to be ephemeral. Therefore, the author has to insist on good clauses in every contract for reclaiming control of their own work from the agent as a standard part of doing business with them.

  2. Thanks, C. E. I thought that might have been what you meant. I’m interested in the history lesson but that’s nothing new ;) I didn’t know mailing it to yourself was meaningless, but I did know it was unnecessary anyway!

    Dean, why is it particularly good to register anything in a series? Is it in case the publisher tries to hire someone else to write the series?

    • dwsmith says:

      Kaitlyn, no a publisher would never have anyone else try to write a series that belongs to you. Never would happen. However, with more books, the more chance of theft by Hollywood and the gaming industry, both of which are known for theft. Also, but getting the registration in on one book in the series, it helps settle time-lines and other factors that might become a critical point in a lawsuit down the road. The key with lawsuits is that you never completely know which detail will be important, so be safe and cover what you easily can. It’s why C.E. talked about the means of tracking royalties. Registering your work is just another safeguard that is only needed if a problem comes up.

  3. “One thing I suggest is recreating your royalty statements in something like Excel.”

    Good point. I do this. (I confess that I didn’t mention it before because, what with the color-coded highlighters, etc., I was concerned I’d start to sound psychotically compulsive-obesessive if I mentioned that I -also- translate my roylaty statements into my own customized Excel docs. You GOT me!) I pull out several figures from each statement that I know I may want to refer to very quickly and put them into my own Excel docs, such as earnings to date for a given title, units/earnings each period, etc.)

  4. Matt Buchman says:

    Laura’s advice and Dean’s follow-up a few messages above is what kicked my butt into gear about 6 years ago, long before I made this sale. You need to study before you need the knowledge. “I’ll take the test and then I’ll study.” Um…. “I’ll get the call and then I’ll figure out what to do.” Recipe for failure.

    By the time I got the call, I’d read three books on literary contract law as well as the Nolo “Copyright Handbook.” I’d taken Dean’s exceptional class on reading literary contracts and studied my notes at length immediately afterward. And a lot of on-line study (list of some of my references are in the comments on my blog http://www.matthewlieberbuchman.com). When the call came (my blog topic for next week), I knew not to agree to anything. I especially didn’t say “yes!” I was pleasantly excited on the phone (read as “ecstatic” in real life), and said I’d get back to the editor.

    While I was pursuing my failed attempt to get an agent, I was also rereading my notes from many sources and researched the outlines of the offer and formulated a counter-offer. Again, I studied before the test. Even after negotiations I didn’t really say “yes.” What I said was, “I think we have something that’s going to work here, but I’d like to see it in contract form first.” When the contract came, I dissected it with a stack of reference books by my side, as well as my notes from the offer and the negotiation, and the advice of several “pro” friends. Again, careful preparation the whole way, all before I said “yes.”

    As Kris & Dean have said many times, “You are responsible for your own career.” Not your agent. Not your lawyer. And not that little minx on your shoulder that says, “I’ll be ready when the time comes.” You could get the call today. Are you ready? You are a selling author, you could get the big call today. Are you ready? You hit the NYT and are about to receive a potentially career-killing amount of money (and that’s not an exaggeration from stories I’ve heard). Are you ready?

    • dwsmith says:

      Well said, Matt, well said. I wish every writer who came though the Anchor did what you did and got as prepared. Well said and well done.

  5. Matt Buchman says:

    And thank you all for the education. This set of comments is going into my permanent reference file. As my wife would say, “Holy Wow!”

  6. That’s not psychotically obsessive-compulsive – well, not any more than is admirable in a small business owner, anyway! ;)

    I’ve owned a few small businesses, with a range of success from “OMG what a flop” to one that I sold off and is still running nicely 15 years later. Maybe that’s why this stuff doesn’t sound odd to me. The details are new, mind you, but the overall “feel” just sounds like common sense. They’re things that tend to spell the difference between those flops and success.

    Sounds like the problem a lot of folks are having is that they haven’t associated their writing profession with owning and operating a small business.

    Anyway – thanks VERY much for the tips here (everyone!). The details folks have posted here have been incredibly educational.

  7. C.E. Petit says:

    Oh dear. Topic drift… in which I’m going to have to vehemently disagree with Our Gracious Host.

    Register the US copyright in every US-published work. If you don’t, you will be sorry.

    Details:
    (1) That means after publication. Do not register manuscripts unless on legal advice (e.g., a book has been picked up for a film/game option before publication); do not mark manuscripts being submitted to editors with a copyright notice, unless they are previously published and/or derivative works (in which case the marking goes on a separate page at the end, not the title page or a separate “copyright page” right after the title page); do not mention copyright in letters to publishers, agents, etc. that do not directly concern an infringement. This is all understood in publishing, and since 1989 marking has been meaningless (not to mention that anyone who would be deterred only by marking is probably not someone you want to be doing business with in the first place).

    (2) That means relatively promptly after publication — within 90 days for a book-length work, and within 455 days for shorter works in periodicals, collections, anthologies, etc. This is not a requirement, but has distinct advantages.

    (3) That means that if you haven’t already registered, and you become aware of a potential or actual infringement, do it now… because you can’t file suit until you’ve got registration, and there’s a time limit on that.

    Why register?
    (a) So you can file suit if necessary. Under US law, a registration is a prerequisite to filing suit. That doesn’t mean you have no copyright without registration (like under the 1909 Act, which has only been obsolete for three decades), or that you can’t take steps short of a lawsuit.

    (b) So if/when you do sue, and you timely registered the work, you have the chance to get statutory damages instead of having to prove “lost profits” through expensive expert witnesses.

    (c) So if/when you do sue, you have a chance of getting your attorney’s fees paid by the other side when you win.

    (d) So if/when you do sue, you can have a broader injunction entered against the infringer.

    Remember how I asserted that the native language of those who wrote the Copyright Act of 1976 was Gibberish? Well, the material in the Act dealing with registration and remedies is the third-most-obvious exemplar (the other two being the WFH provisions and the termination/revocation provisions).

    The mechanics of registration (and the cost) are a lot more manageable now, particularly thanks to the Electronic Copyright Office initiative that allows doing almost everything online:
    http://copyright.gov/eco
    The confusing part is how to register all those short stories, etc., which is covered in detail in the “group registration”
    http://www.copyright.gov/fls/fl104.html
    which saves money and headaches. Further, the cost is less than $50 per registration (and remember, those group registrations are for more than one work)… not the hundreds for a trademark or the thousands for a patent. It’s a deductible, one-time business expense. The only real downside is that registrations by authors usually result in lots of junk mail from scam artists who prowl the new registration lists, but that’s so far off topic that I can’t even see the topic in the rear-view mirror.

    • dwsmith says:

      Oh, C.E., we don’t really disagree in the correctness of what you are saying. Of course writers SHOULD register every work they publish. (And folks, even though it says your publisher in your contract will register it, don’t depend on it. Check.) And of course you are correct that the advantages if there is an infringement are fantastic if you registered the work ahead of the infringement, thus another reason why EVERY writer should register EVERY story they publish.

      The fantastic advantage I had when the Science Fiction and Fantasy Writers of America organization stole one of my short articles against my express denial of permission is that by accident the article was registered. I had done it with all the other articles in the first book when we published it under my old company Pulphouse. So when I called the SFWA attorney and explained the problem, she went nuts, especially when she learned that not only was the article hurting me, but I had expressly denied them the right in writing to republish the article, and that a lot of copies of the new book with the stolen article in it had gone out over the period of a few months in different groups. The registration sealed the problem. I let them off the hook with only a thousand dollar slap on the wrist which in hindsight I should not have done. But I had my reasons at the time.

      So C.E., I agree completely, every story should be registered when published. But the reality of getting writers to even register the ones headed into trouble areas is almost impossible. So I dial back my advice to get them to at least do high probability problem stories. That’s all. But we are not disagreeing.

  8. Laura – that book you suggested is on Amazon (all three updates). Was only $4 from a used dealer (including shipping), so I went ahead and ordered. Looks like a good place to start reading. I’ll probably pick up the other that CE and Dean suggest after I finish (and understand) that one. Even though I haven’t sold yet, once I get to that point, it’ll actually be too late, so I’d better start reading now.

    Thanks guys for all the good info.

  9. And for another example of ways to monitor sales and royalties, check out Jim Hines’ blog post on this today–with color-coded charts!

    http://www.jimchines.com/2010/10/royalties/

  10. Hey Dean, for what it’s worth, you made me sit up and pay attention when I came out to Lincoln City and you let slip the occasional remonstration about fiction writers being ignorant on copyright. I’ve still got homework to do, but now that I am seeing contracts coming in the mail, it seems like one of those “duh” moments where the more knowledge I can arm myself with, the better. So if I fudge up in the future, you won’t hear me blaming it on lack of warning. You were rather specific on this one. Like, four-letter-word specific.

  11. Pati Nagle says:

    How does one check whether one’s publisher has registered the copyright?

  12. This is a great discussion here, and I hate to go back to something from the beginning, but I just came across the information last night, which might be common knowledge.

    I was away from home for a few days so I recorded Friday’s Oprah because she did a one-hour interview with J. K. Rowling, and I wanted to hear that.

    a couple of the most interesting pieces of information in that discussion were that:

    1) Harry Potter and the Philosopher’s Stone was rejected by twelve publishers before being picked up; this is probably common knowledge among writers, but I’m sure not everyone knows it.

    2) (And more interesting) Rowling kept submitting that manuscript despite the fact that her agent cautioned her, saying, “go ahead, but you’ll never make any money writing children’s books.”

    Of course, almost no one will ever be Rowling, but that jumped out at me as a prime example of an agent not knowing what the market will buy, and how an agent could have not only destroyed the most brilliant career we’ve seen, had Rowling listened, but additionally the childhoods of millions of children (and adults) who’ve identified with her characters and story.

    • dwsmith says:

      Thanks, Jeremy. I found the agent story with Rowling so telling and so typical. Luckily she was desperate and didn’t listen to the idiot who was called an agent. Thankfully to an entire generation of new readers.

  13. One only hopes Rowling fired this agent as soon as it sold, but sadly somehow I doubt it. This agent should have been fired just for saying something so ignorant.

  14. Indeed. But to be fair to that agent, I imagine almost any agent (at least of the new type) would have said that.

    And really, her case shows that persistence in submitting to editors will ultimately pay off if the story is good.

    And that is saying something, because her story is off-the-charts good. Not perfect writing, and so on and so forth, but the story and characters are so good that nobody cares. We all just love going along for that ride, because no matter how strong or weak, popular or unpopular, or athletic or book smart we were in school, we all know what it felt like to be Harry or Hermione or Ron or Neville, and so on. We’ve all felt like every one of those characters at one time or another, and that’s why it resounds with us.

  15. Dayle says:

    Coming late to the party as usual, but I’ve read through the comments twice and copied out the material I want to review again.

    I also want to echo the thanks those have given Dean for the awesome copyright workshop (I’d take it every year if it were offered!) as well as the question of whether you’ll offer a workshop on reading/understanding/handling royalty statements?

    Most importantly, though, THANK YOU, all of you. This is beyond awesome.

  16. Gabby says:

    Hi,
    Where is the Lawyer list on Laura’s site? I’m sorry but I couldn’t find it. I like the idea of learning about contracts and possibly having a lawyer help me with the details.

    thank you for the great blog. I’m new to the site but I’ve found it really helpful.

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