Killing the Sacred Cows of Publishing: The Myth of Giving Away 15% Ownership in Your Work.

Oh, oh, I’m doing another Killing the Sacred Cows of Publishing post. Stay tuned, I have a hunch there will be more. And it’s time for me to redo some of the old ones as well. Things have changed.

Why this topic? Why now?

Over the last month or so I have been hammered by all kinds of writers bent on the belief, the myth, that giving a percentage of their work away is a good and smart thing to do. I went to the conference I talked about in a previous post and heard writers talking about giving away percentages. My wife, Kristine Kathryn Rusch, on her blog every Thursday has been pounding on how horrid traditional publishing contracts have become, detail by detail.

And the common thread on her posts is that writers are determined to give away control of their work.

And lately I’ve seen a couple of contracts that are flat horrid from epub companies (meaning companies that claim to “help” writers get their work into print while taking 15% or more forever).

And the key to all of this is that they take these rights FOREVER.

So what am I saying exactly?

Simply put…Writers should hold onto 100% control of their own work.

Period. No exceptions.

Sure, license a right to a publisher or a magazine or an audio company for a short use time, but keep 100% control of the underlying property. (If you do not understand what I mean by license your work, the you need to learn copyright. A great place to start is the Copyright Handbook from Nolo Press.)

And when the publisher is done with the work, get the rights back. And that means in the contract having a firm date you will get the rights. Not some stupid speed limit and the requirement that you then go begging the publisher to give the rights back.

Make the reversion of rights you license a set date.

Period. Again, there should be no exceptions.

And if you publish the book through your own indie publishing company, keep 100% control and ownership.

Sure, give bookstores discounts for selling a copy.

Sure, give distributors a discount for every copy they move to a bookstore.

Sure, give the print company their due for producing the book.

But never give away any part of the 100% ownership that is your work. (Again, if you don’t understand how you can sell a copy of your book and still retain all rights, get yourself to the Copyright Handbook.)

It really is that simple.

I can hear the questions. “But I can’t do covers, so shouldn’t it be all right to trade the work on the cover for a percentage of the sales?”

NO!!!!!!!!

For some strange reason, smart writer after smart writer seems intent on wanting and fighting to give away ownership percentages in their work, both with agents, with traditional publishers, with small presses, and with indie publishing “helpers.”

When it finally dawned on me that indie publishing might be a wonderful addition to traditional publishing for writers (not replace, an addition), I got excited about how writers could keep 100% control. (You can read my article in Kirkus about this.)

But the myth in publishing about giving away a percentage of work is so strong, indie writers figured out ways to do it. The worst thing about traditional publishing and indie writers worked it over into their world without needing to.

So this myth, simply put is this:

Writers (for some silly reason) believe it is fine

to exchange work for a percentage of their property.

Nope. It is not.

Not ever. That’s a myth, folks.

How flat silly is this practice when looked at in “real world business” terms?

For example, you have a gardner come to your house to mow your lawn. But instead of money, you decide to give the gardner a percentage ownership in your home.

I’d become a gardner if that was the practice and I hate mowing lawns.

It’s the same thing, folks. Exactly.

You want another example in the real world closer to “having a cover done.” How about you need a new kitchen in your restaurant? You hire a contractor to do the work. But not once, ever, would you think about giving that contractor a percentage ownership (or a percentage for even a few years of the income).

Writers, for some reason, think it’s just fine to hire an agent to sell a book and then give the agent some ownership in the work. For the simple task of mailing a manuscript to an editor, something the writer could do.  And now some indie writers think it is all right to hire a person to do a cover and give that person ownership or a percentage of the income for years to come.

What are you giving away is copyright. And copyright lasts 70 years past your death.

Copyrights are a form of property.

The solution, of course, is just think of your work as valuable property and stop giving parts of it away. For any reason.

I have seen this problem come up in different areas just in the last month. Here are a few of those areas.

Traditional Publishing Book Contracts.

The contracts from traditional publishers have become so abusive to midlist and beginning writers, it’s just stunning. Joe Konrath just did a new post about why he won’t go traditional anymore. He says he’s flat tired of being abused. My wife on her blog has done great articles about some of the clauses that take away writer’s rights. ThePassiveVoice blog also has talked on this issue at times in length. All worth tracking down.

But let me be clear here. Unless you are getting a huge offer, meaning up into six figures or more, you do not have the clout at the moment to negotiate with a traditional publisher in any way that will allow you to keep your rights on your work. Unless you have a darned good attorney on board and the publisher really, really, really wants your book, you will never own those rights to that book again. (Or at least not for thirty-some years…again, learn copyright.)

And worse. Traditional publishers now want to control what you write in the future as well. And they are getting away with it.

So caution. Get an IP attorney to help you with any offer from any traditional publisher and understand what you are thinking of signing.

Agents

Agents are slowly fading away in importance in this industry. But they are not gone yet by a long ways, and the lower level agents can really trap you. And some of the big agencies have turned to getting ownership in a writer’s work they represent in an effort to stay in the business.

(Makes sense…they own something, they get to hang around. If they are just making buggy whips, then few of them will survive.)

These rights grabs come through a number of ways directly in your relationship with the agent.

First off,  agency agreements often make a rights grab on your work. Never sign one. Period.

Second, caution about the agency clause in book contracts you sign. Rights grabs by the agents often happen there as well.

A second major area for agents to try to take a part ownership in your work is the agent’s scam of becoming a publisher.

I’ve seen some of these contracts between these “publishers” and the writers now, and trust me, they are rights grabs in all the worst ways. Most agent “publishers” want at least 15% forever, and they also get control of the work. You are not free to take your book out yourself.

So, what major clues are there to look for in an agency agreement or an agency clause or a clause with a agent-as-publisher contract? Biggest clue is the words “coupled with an interest.”

Run when you see that. It means the agent is trying to own your work for the life of the copyright.

But what is the real solution to all these agent problems?

Simple: Never use one.

Take your career into your own hands, go directly to editors with your work, and hire an IP lawyer to help you with the contract. It’s cheaper, safer, and twenty years from now you will thank me.

Companies that “Help” indie publishers.

There are two types of these companies. The Good and The Scam.

You always know The Good company when they never ask for a percentage of your work. The fees are up front for the work you need and stated, not hidden. And you always retain all rights to your work and the money goes directly to your bank account.

They work off of what is called a “menu” of services. They are, for the most part, the good. You decide how much you want to pay up front and either pay it or not.

The Bad company tries to hide any fees from you, tries to get you to give them a percentage, wants to handle your money before it goes to you with every sale, even tries to get you to sign up in their online agreements before you can even look at their site.

Solution: Run!!!!

The Real Hidden Ugly Side of All This

In a word: Accounting.

So far no person has managed to do an accounting program that WMG Publishing Inc. will sign onto that will allow us to simply find out how many books we are selling. A number of people have made great attempts at it and one I really liked except for the fact that they wanted me to put my entire company’s financial statements into some cloud and wanted me to sign an agreement that I wouldn’t sign on my first year of writing. And they would not budge and got mad at me for even asking them to.

So with 273 titles as of this moment published through WMG Publishing Inc., we have to hire data entry people to log in our sales to spread sheets to even get some idea how many we are selling of each title every quarter. In other words, we are trying to do it the same way traditional publishers have done it for decades, and trust me, that sucks. (You think it should be easy to just combine the statement spread sheets every month from bookstores and distributors. It’s not. Try it.)

Some major traditional publishing companies, with departments full of accountants and data entry people, are having issues with all this as well.

So you sign up with some small press publisher or some agent “publisher” who promises to get your book into electronic print, and then pay you FOR THE REST OF YOUR LIFE PLUS 70 YEARS 15% every month of everything that comes in.

Yeah, that’s going to happen and if you believe it will, I’ve got a very old bridge to sell you.

Imagine your grandkid trying to chase the grandkid of the agent sixty years after you die to get money and you start to see how really silly that idea is.

But it is not so silly when you suddenly realize you have, forever, meaning for the life of the copyright, given another person a partial ownership in your property.

Imagine in five years that person you gave a percentage to for your cover demanding their money, even though you have replaced their dated cover two years before.

Imagine the agent who grabbed a share of your property because they sold it ten years ago now getting that same percentage for the next fifty years of your ebook that you indie published. And taking you to court because you don’t send them a monthly check.

I can imagine much worse and have already seen it happening.

Summary

The myth that you need to give someone 15% of your income from your books started way back in the history of publishing. But back then contracts were easy, publisher’s didn’t hold onto books forever, agreements with agents were a handshake and no one tried to own your work.

In other words, back then, when the practice started, there was a respect for writers in this business.

In case you have been living under a rock and haven’t noticed, I need to say this: Publishing has changed!!!

Now agents want to own part of your work forever.

Scam “helpers” want to grab part of that ownership for simply doing a cover or putting it up electronically.

Traditional publishers are grabbing at anything they can grab at, including the lifetime of your work and your future work.

So what do you do?

— First, never, ever allow anyone to work for you for a percentage, either of income or ownership.

— Second, start learning how to indie publish your own work. It’s scary at first, but fun after that, and it gives you a sense of intense freedom. That way you can be clear-headed on signing a deal with anyone else.

— Third, make sure every contract you sign has a set date where the exclusive rights return to you. Period. Never sign a contract with a “speed limit” or a dollar figure of sales. Just set a date and if the publisher wants the work after that date, they can negotiate a new deal with you.

That seems very, very simple, doesn’t it? And actually, it is.

This is a wonderful new world for writers. More and more of us are making a really nice living. More and more of us are now allowed to write what we want without anyone looking over our shoulder. Readers can find our work and it will never go out of print, so new generations of readers can always find it as well.

The key is hold 100% of your work at all times.

And, of course, keep having fun.

————————————————

Copyright © 2012 Dean Wesley Smith

Cover art copyright Crowvb/Dreamstime
————————————————–

This chapter is now part of my inventory in my Magic Bakery.  

I’m now getting back to writing fiction, so every word I write here takes time from that. And I have to justify this somehow in how I make a living.

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

If you can’t afford to donate, please feel free to pass this chapter along to others who might get some help from it.

And I would like to thank all the fine folks who have donated over this last year. I don’t always get a chance to respond, but the donations and the comments both after the posts and privately are really keeping me going on this. Thanks!

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49 Responses to Killing the Sacred Cows of Publishing: The Myth of Giving Away 15% Ownership in Your Work.

  1. TheSFReader says:

    While I understand and agree with most of your arguments, I submit that there is at least one good reason where you could agree to a royalties split : translation and foreign language sales…

    Any thoughts about that ?

    • dwsmith says:

      SFReader, nope, see no reason to do any splits on translation. Pay a flat fee for the translation. Again, think about the accounting for your children after you are gone. Who owns the translation if you are splitting the income? Who gets the income first? And so on and so on. Ugly doesn’t begin to describe it. Be a publisher and just pay for the translation. Trust me, Bantam doesn’t split their profits on a book with any translator. Just like proofreaders and copyeditors, translators are paid a flat fee.

      There are no exceptions on this (splitting anything) without asking for tons and tons of problems.

      • TheSFReader says:

        And if you don’t have the money to pay up the flat fee ? Wait for it to be available ? If you don’t know the foreign language to manage the book in that foreign language.

        I understand clearly how a clear-cut rule simplifies things, specially that one, and in the long run, I think you’re right, but not everybody can wait and hope for the long run…

        • dwsmith says:

          On. trust me, SFReader, waiting is the best by a long, long ways in this instance. I would hate to have my voice haunting you in ten years. (grin)

          As for the language, under international copyright law and treaty, any dealings with an author must be in the language of the author. (That’s a major scam some agents use to take their client’s money by the way.) So there should be no language problems.

          And you sure don’t need an agent in the mix to sell overseas rights to overseas publishers (who will translate the work on their dime). In fact, once Kris and I took agents out of the middle, we got a ton more translation sales overseas. Stunning how that worked.

          Did you read my post about blowing off toes???? You know, the part about getting in a hurry???

          • Daniela says:

            Nod, using a agent is still relatively unusual in Germany. They are trying to get established. Have for maybe the last 10-15 years but most writers still deal directly with the publisher.

            Sometimes it’s even the case that a translator contacts a writer and then does the negotiation with the local publisher.

      • Daniela says:

        Actually no that’s not true. Translators can get contracts where they get a percentage (usually 5 or 10%) of the copies sold in addition to the fee they get. As far as I know that’s often done with bestselling writers or by big publishing houses. In Germany the norm for any translation of any kind of fiction is to pay per standard page (+ the percentage). Prices wary depending on complexity of text, language pair, genre and so on.

        I personally prefer to work with flat fees and sell all the rights I can sell. The one thing I can’t sell btw according to German law is the copyright. So I can sell specific rights but I could also say I’m only selling the rights for the print edition of a translation while retaining the rights of the ebook-edition.

        I know business translators who want to get paid for the web-use, print-use, audio use. Or who even split this up even more like translation can only be used for a brochure and using it for a flyer would cost extra and so on. Personally that’s too much hassle for me. Nice flat fee makes things so much easier.

        Even if you are gone the German translator would still own the copyright to the translation. Which is why there often exist several different translations of the same text.

        • dwsmith says:

          Daniela, you said, “Translators can get contracts where they get a percentage (usually 5 or 10%) of the copies sold in addition to the fee they get.”

          Let me simply say, folks, you do that, you deserve the court cases you end up in. RUN!!!!!! From that kind if silliness. Just because it sometimes is done does not mean you have to be stupid, folks, and do it. Daniela is right when she says would prefer to work for flat fees.

          That is the kind of thing I am trying to warn against. That, and letting agents mess with your mind.

  2. Nathan says:

    Hey Dean – I stopped by and couldn’t believe it. You’re still on the agents. :-)

    Yet most of my writing friends are still stuck on getting agents, and this stuff still needs to be said. You are so right that accounting (keeping track of what goes where) is why it all breaks down in the end.

    Warmest regards.

  3. Vera Soroka says:

    Oh, I hear you. Keep your rights! And I do believe it. My rights are very important to me and thank god I’ve discovered all these blogs like yours , your wife’s , the passive voice and Joe Konrath who have turned around what I have believed for so long.

  4. Bonnie says:

    This is akin to something that happens with small healthcare businesses owners (you know the new acupuncturist, massage therapist or naturopath). There’s this thought that well, 15% of nothing is nothing so there’s no loss. They go to work in a building that takes a percentage of all their income for rent- anywhere from 30 to 50%. This is great for about the first six months or a year, maybe even a second year, depending upon rents in the area, how successful they are, and the percentage they agreed to. However, at some point you’re making enough that it becomes silly to work on that percentage. Something they forget to do is to cap the number, probably because they don’t believe they will ever make that much money, or won’t that quickly.

    Writers are in essence thinking like that beginning practitioner. Unfortunately, they’re forgetting one major thing. That healthcare practitioner can move their office and not have to pay that percentage. The writer has just said they’ll pay that percentage for the rest of their life, even if they stop writing but the book is in print. That would be like the beginning healthcare provider saying, yes, I’ll pay you 10% of all income for the rest of my life, even if I retire, become disabled or move to a clinic across town. Even beginning healthcare providers would never say that.

    For the writers who do want to trade something, they have something other than a percentage of their rights. They can edit. They can market. If it really is a cover, they can go sit at a local art fair for a weekend hawking an artist’s stuff. There are all kinds of ways to trade and the typical writer has a lot of skills that don’t depend upon writing.

  5. I’m all about the end date. Be it a date, a figure, a combination of date and figure, whatever. I’m divorced. I already know that forever rarely turns out happy. I want an escape route ;)

  6. I think people are willing to pay an awful lot of money for validation. I think it’s an ego boost to say they have an agent, and to say they’ve just gotten a contract for their next three books. Any confidence game relies on the greed, the stupidity or the gullibility of the mark. This industry is fueled by vanity. That might sound like sour grapes. I would like to sell more books. I’m not giving away my blood, my toil, my tears and my sweat to people I don’t respect and wouldn’t hang out with under any other circumstances. Keep up the good work.

    • dwsmith says:

      Louis,

      What’s interesting is that there is a large group now who think having an agent is a sign of lack of business sense in this new world. So some writer thinking they will be validated by getting an agent is often doing exactly the opposite these days.

      And when I hear a writer has signed a three or four book deal for small money with a traditional publishing house, my first thought is to what kind of rights did they sign away for life and did they even know they were losing those books forever.

      So your points are spot on the money, but the validation aspect of this is changing quickly as each month goes by. A major writer did a post just lately about how traditional publishing is now the “vanity press” of old. Not far wrong I must admit.

      But that said, I am no longer working for traditional publishers except in the short fiction world. But sadly, I am working for a traditional corporation in WMG Publishing Inc. But you should see the contracts I have signed with WMG Publishing Inc. Very basic, rights for one year, then the contract renews and the company has to pay me again, or the company or I, either one, can cancel the contract at the end of the year.

      And the contracts WMG Publishing will do for Fiction River is exclusive for two months from pub date only, then non-exclusive to stay in the anthology. The writer can do what they want with the story from two months after publication onward. All exclusive rights revert after two months. And we are paying 6 cents per word for that. It’s all we need.

      And no, we area not taking submissions yet for Fiction River. (grin) We will down the road on certain issues.

      • ABE says:

        From a comment on Kris’ website that suggests a cap on money and/or time.

        I’d suggest that you put it in writing, and run it past an attorney when you design your contract with writers. Since you are going to put everything neatly in writing (Right?), make the attorney approve language that gives you what you say you want.

        If it’s not in writing, it doesn’t exist.

        And, while you’re at it, you might think of what happens to the author’s rights in a book if YOU go under for some reason, after you’ve acquired the book. Someone who buys you out gets YOUR contracts – if they’re not clear about what happens, and the law isn’t the way you would have wanted, your authors are out their rights – to their own books!

        (I’m not a lawyer – just helped train a bunch of teens for several years of Mock Trial, none of which involved IP cases (grin).)

        • dwsmith says:

          ABE, good point about you, or your publisher, going out of business holding rights. Or going bankrupt. The half of the contract or the 15% you have given away becomes an asset in the bankruptcy and thus can be sold or assigned to a creditor.

          Again, giving any percentage of ownership away in your work can and usually does lead to ugliness.

  7. This post is right on time. I’m helping someone get their work published through my small publishing company and I wasn’t sure how to handle how to get paid. It seems every example I’ve seen is that I’d get a percentage of each sale. Now, I see that’s not a good thing. Mind you, I was only going to do this to a certain amount–enough to cover my time and work–and then give the writer 100% of the profit and step out of the picture as far as money goes. Rights weren’t an issue. All rights would remain with the writer and they could walk away at any time after their book was published for a year. I hope, however, the relationship is a good one and we’ll publish more of her books together. We’re still working out the details that work best for each of us. This is the first writer I’m helping, so it’s a learning experience that will help me with other writers I hope to help in the future.

  8. J.A. Marlow says:

    Not only is it hard to combine statements from the bookstores and distributors, it’s made all the harder that they keep changing!

    I have my own custom-designed spreadsheet that is a modified version from where I previously worked. At my previous employment, they had the same sort of problem. The main program they used could spit out all sorts of pre-set reports, but there was no way to tell the system (for example), “I want to know how many of ‘THIS we need compared to THAT over here and how much does it all costs‘ that brings together information from three or more reports.” So, they used Excel to fix this, so that they could see the information in new ways that the over-riding program couldn’t handle.

    My version brings together all of the different monthly or quarterly spreadsheets statements and puts them into separate tabs. I don’t even try to bring them into one overall spreadsheet. Nope, that’s what a separate tab does, pulling like-information into one place from where I can create meaningful pivot tables.

    I love pivot tables. Can look at unit sales, money earned, percentages, fees, break down by month, by book, by series, by country, plus a bunch of other ways. All with a few clicks.

    Problem is, I have to adjust the way the information flows into the one tab when the formats of the statements change. It happens on a regular basis. Not a huge deal, but still annoying and it means I have to stay on my toes with each spreadsheet entry/update.

    Trust someone else to do that and keep the spreadsheet and formulas updated and accurate? Who is familiar enough with the books, trends, and numbers to spot when there is a problem with a series of cells? Trust someone else to even have a system in place in the first place, instead of just winging it? Who can keep track of all of it over hundreds of titles and possibly hundreds of authors?

    Yeah right. If you don’t want to buy Dean’s bridge, I have a bridge to the moon to sell you…

    • Sounds great! I’ve always wanted to drive to the moon… ;)

      I keep track in Excel, but I’m going to have to try your tabbing thing. With 7 titles to track now (some by various pen names) things are getting a bit unwieldy ~

      • J.A. Marlow says:

        I now have 30 releases, so some form of automation was needed. I can’t yet afford data entry people. :P

        Using tabs was the only thing that made sense to me. If one statement format changed, then I only had to worry about the formulas for that tab and the others could be left alone.

        (And forget the moon. I want my own spiffy spaceship.)

    • Daniela says:

      I’m wondering is a simply databse wouldn’t work for that. I know I set up something similar once as an Access-exercise for a fictional music-store. But Access is not the best tool for databases.

      One probably would have to hire someone who knows sql and who can program the database and all the forms and queries one needs. The biggest challenge with databases is usually the work that goes before the planning and decideding what the requirements for the database are, especially if it’s one that’s constantly growing.

      • I wrote some code to read each line of Amazon and Smashwords data and store it in an Access database. From there I can import to any spreadsheet (I use Excel) and run pivot tables. However, I only have one pen name published so far, so will need changes to the tables when I write under other pen names. And write more code when I receive reports from other sites. So far, it works well. :-)

  9. Jamie DeBree says:

    This is why, as I watch myriads of other indie authors go audio, I still don’t have my own books in audio (or even in the works). I can’t afford to pay the flat fee for a voice artist, and I won’t give away a percentage of royalties. Or go exclusive, for that matter. And I have zero time to even think about doing it myself. So I wait. Eventually (fingers crossed) I’ll have enough income from the book business to get that done. I’d rather wait than be tied into a royalty split and/or exclusivity to one business, even if it does have an end date.

    The two authors who publish under my imprint keep 100% of their royalties on other sites (the accounts are theirs) – they pay me for the services I provide (or trade services – editing/cover art for formatting, etc), and that’s that. It’s more we just help each other out. The only exception is the books sold on my BSB site – in theory, I keep 10% of those sales as a distribution fee to contribute to the cost of keeping the store up. But I rarely sell anything direct, so it’s kind of a moot point.

    For my anthologies, I purchase exclusive rights for a flat fee only until the publication comes out, and then I keep only non-exclusive rights after the publication date so the author has the rights back pretty much immediately.

    Accounting is the bane of my existence – moreso with every book I publish and have to figure out how to track. I have twenty books to do data entry on now, and it will be several more before the year’s out. I can only imagine the nightmare it is for WMG with over 10 times that many titles… good grief.

    • dwsmith says:

      Jamie, nightmare only begins to describe it. And the systems that must be set up to track anything in any real fashion are also nightmarish. And at 273 titles now, we are only getting going. We are about half way through fixing all the old stuff while still putting new stuff up. Once we finish the “giant fix” as I am calling it in a few months, our attentions move to only new stuff and we expect our titles to reach over 1,000 in two years. If we don’t have very, very solid systems in place long before then, we are in deep trouble. (grin)

  10. Dr. Doug says:

    Hi Dean,
    What type of deals are people getting with the new Amazon imprints. Thomas & Mercer, Montlake, 47 North.

    Are these similiar contracts to the Big 6 contracts?

    Can anyone speculate what type of deal Amanda Hocking got with her new publisher?
    Is there ever a time that its worth it, in this new world?

    I write non-fiction, health, diet, motivation. Would it help me? A major part of writing for me is to put me on the map as an expert.

    Would love to hear your thoughts.

    • dwsmith says:

      Dr. Doug, honestly never seen a contract with any of the Amazon imprints. So just don’t know. But more than likely they are similar, just with better terms on the electronic. A lot better terms. Not sure about some of the other provisions. Just have never seen one yet.

      Not a clue on Amanda’s contract, but knowing her agent and the deals I have seen through that agent, it can’t be great, except for the money aspects. But is there ever a time it is worth it in this new world? Answer: It depends.

      If you are making six figures a month, why go with a publisher and kill that golden goose? Amanda made over 4 million in advances on her six(?)books. The question is how much would she have made on those six books going on the way she was? Amanda is pretty smart, young, but smart, and she had her reasons. Every writer has their reasons. Usually personal ones.

      And remember, Amanda made this move early on in the indie process. In her spot, I more than likely would have done the same, but for different reasons. I have worked with traditional publishers with over 100 novels now and would have known exactly what I was getting. And what to expect with the money.

      Also, I have the ability to spend long hours in the writing chair, which means I am considered fast, thus six books for me in exchange for four million would be no big deal. Less than a year’s work. And a huge amount of pain-in-the-ass coming at me from the publisher, but again, after 100 novels in that system, I would have been able to deal with it just fine.

      But again, it would have depended for me on the contract terms and so much more. But if they are offering 4 million total, I could get pretty good terms because I would know what to ask for. And what to not bother with.

      The problem is when writers, all midlist and beginning writers, have no clout to kill some of these new, horrid contract clauses.

      So my answer to your question of “Is it worth it” is: “It Depends.” If they want the book bad enough, I can get the terms under control, sure. If I have no clout and I’m going begging to them, NEVER.

      It depends on the amount of desire on either side. If they want it and are willing to bend on terms, sure. If I want it and am forcing the book at them, never.

  11. Dean, I love the new art for this series; but I’m gonna miss the old cow!

  12. C.E. Petit says:

    <tangent-of-use-to-writers>

    May I respectfully point out that, in the name of brevity, the title of this post is wrong as a matter of law? And I’m not arguing about the substance or the sentiment; there’s just a technical legal problem with the title.

    Under the Copyright Act of 1976, an agent (or whatever) does not have an ownership interest in the work. At most, the agent (or whomever) has an interest of some kind — in all probability, not even an “ownership” interest, but a mere right to “an accounting” (a mixed legal/equitable contract remedy) — in part or all of the income stream from the work. All ownership of the work remains with the writer.

    That’s important because the writer retains all of the rights to authorize — or, for that matter, suppress — all derivative works. That includes abridgements, serializations, fix-ups, revised editions, sequels, prequels, films, audio books, live dramatizations, everything. The agent (or whomever) cannot authorize any of those without specific authorization to do so from the writer. Admittedly, sometimes that authorization for some of these is built into the author-agent contract… but it has nothing to do with ownership of the work, only with licensing the rights to the work.

    Yes, this is a tangent. I think it an important one, though, because the publishing “industry” (and in a wider sense, the entertainment industry) continues to use the rhetoric of “ownership” and “sale” as a not-so-subtle means of keeping writers from asserting and vindicating their rights… and preventing abuse by the distributor layer. The 1976 Act, as a matter of law, made every publishing transaction except works for hire a license, not a sale (even though the Act never uses the word “license”). I know full well that “sale” is a more convenient shorthand than “license”… in the same way that “all other persons” was a more convenient shorthand for “slaves, criminals, and indentured servants”.

    If we expect publishers (and others) to treat works and writers with the respect they deserve, we must treat works and writers with the language they deserve.

    We now return you to our regularly scheduled programming.

    </tangent-of-use-to-writers>

    • dwsmith says:

      C.E., I agree with you that in general, by being an “agent” under the copyright act, they do not have ownership. (Let’s not talk about all the places agents break laws…grin)

      But under contract, writers, as you say, have the right to sign away ownership. And thus, “agents” under the guise of their agency agreements and sometimes in their new “publishing” ventures, are having the writer sign over a percentage of “ownership” in the work.

      And that’s what I was talking about. Stupid writers giving ownership away where they should not.

      And yes, I agree with your point about terms of licensing and so on. I do try, at times, to use the right terms. But as you said, the entire industry uses some terms in a false matter and I am talking to the general public here, as well as new writers who think they are selling stories instead of licensing rights. So I try to walk a line here.

      MY POINT is that writers are SIGNING AWAY rights in their own work for no reason. Rights that they would not get back, in the best case, in 35 or so years. And that’s what I am trying to get people to see and wake up to.

      Thanks for the comments. Much appreciated.

  13. T. K. says:

    Dean, you’re a guy who likes to do the math. I’m not a math person, so tell me where I’m wrong.

    If an agent-assisting-writers-and-taking-15% has 7 clients,  he has 105% of his average writer’s income.  So all he needs is 7 clients to earn as much as a writer. If he has 50 clients, all who he “assists” and takes 15%, he makes lots more than any of his writers, without ever having to do anything hard, like write a book.

    I knew someone who self-published with the “assistance” of her agent. She was thrilled to have a “team” behind her, and said, “Of course my agent is hustling. She doesn’t make money unless I make money.”  EXCEPT the agent didn’t put any money up front, and encouraged the writer to hire professionals for everything. I believe the agent said something like, “If you self publish right, you can set yourself apart from the masses of self-publishers who just put up crap.” So the writer paid a cover artist, and paid an editor, and paid a formatter. The result was that the writer didn’t start earning money until she recouped all those expenses, while the agent started earning 15% on the first sale. Moreover, the agent told the writer to spend the time while the book was being edited and the cover designed  coming up with a marketing plan and figuring out how she was going to market her book. The writer said,”My agent is smart. I have a background in marketing and I think she’s right.”  EXCEPT the writer was spending all of her time marketing, trying to recoup her investment, while each time she got a family member or friend to buy her book, the agent got 15%.

    That is one smart agent.  All she needs is 40 or 50 suckers, and she’s raking  it in.  I agree with you. Agents are not going anywhere.

    One thing I noticed was that this particular agent had her writers promoting each other, giving each other interviews on their blog posts. So the writers were teaming up to help with promoting each other’s books. Agent win.

    • dwsmith says:

      T.K., you got it. One of the things we used to do was quiz writers coming to our master classes on who they thought made the most money. 1) Writers 2) Agents, 3) Publishers, 4) editors.

      It is, of course, in the order I put them. Writers make a ton more money than anyone else in the business, but agents do fine as well. Poor editors are so far down the list, it’s very sad considering how hard they work.

      • T. K. says:

        If the agent takes 15% of 50 writers, how can the writers earn more? seems to me the agent earns more, for less work.

        • dwsmith says:

          T.K., let me put it to you this way. Ever seen an agent on the Forbes’ List? Nope, never happened. But you see dozens of writers.

          And yes, if you have 50 beginning writers, all selling at low levels, the agent will make more than any single one of them will make. But as a class, writers always make more money than anyone else in publishing. Again, you don’t see agents or editors or publishers on the Forbes’ list very often. (Steve Forbes being the exception on that, of course.) But writers are always on there.

          Let me think…oh yeah, a fantasy writer is the richest woman in Great Britain, richer than the Queen.

          I’ve done numbers of articles about this topic, about the myth that writers don’t make any money. Guess it’s time to update it now that indie publishing is making it tip even more to the writers.

          • dwsmith says:

            And more thing, T.K., keep in mind a writer like Nora Roberts. She tends to make an official 20 million per year pretty regularly. Her agent will make 3 million. Not bad, but it would take 7 Nora Roberts clients for the agent to make more than Nora. And when you have a client as big as Nora, you tend to not have many other clients. The big gun takes far, far too much time.

            Your theory is why so many agents think they can get started and get rich. And why so many of them go out of business fairly quickly. In theory, it works. In practice, doesn’t happen.

          • T. K. says:

            Dean, I know writers can and do make a lot of money. I think you’re right, though: the way I was reasoning is the way newbie agents reason, and why they think they can succeed financially as agents. I figured the people taking 15 percent of enough writers were doing pretty well. I’m glad to think they’re not so they have less incentive to stick around. Like you, I’d very much like to see agents become less important and even go find a new line of work.

  14. I wonder what your opinion of ACX is then. They have an option for writers who can’t afford the flat fee to give a percentage of the work to the producer for the length of the seven year contract. Or does this fall under the “don’t get in a hurry” mantra?

    • dwsmith says:

      Amanda,

      Nothing against the ACX program at all. In fact, for some projects, we are going to be using them. Audio.com people are great in all ways. The key is 7 years. Period. Then it’s finished. It is exclusive for those seven years, but exclusive to the top three places that sell over 95% of all audio books. So not much of an issue there at the moment. But the key is 7 years. Seven years is a ton shorter than forever (or the life of the copyright). If traditional publishers would put a seven year sunset clause like that in their contracts, I’d still be working more with them.

      And ACX has a number of ways of doing this. If you think of them like a distributor, not an agent or some small press you are splitting rates for, then you are fine. Audio.com is owned by Amazon. They know how to do sales.

      • So a time-limited percentage deal doesn’t bother you as much? I have one book where I offered an editor 10% for the first year. It still leaves me with a bookkeeping chore, of course.

        • dwsmith says:

          All publishing contracts, Martin, are percentage deals. The key is how much of a percentage you get vs what the publisher gets. Where I have had problems as I have said before, is this: 1) Doing it yourself with another person. Too many chances for too many lawsuits. 2) writers screwing themselves with a 14% deal on electronic rights with traditional publisher. It was always 50% and it should be. 3) agents taking 15% of work they did not do, of future work, of long term work, and trying to grab rights they have no business trying to get.

          Then add in that traditional publishers are now trying to hold rights “forever” and I just get grumpy. (grin) And then add in writers in a hurry who give away percentages of their work for simple chores like a cover or proofing and my grumpiness turns to complete head-shaking.

          This business is stunning in how this “give away percentages” has become a part of the business without any thought on any side. It really, really needs to stop.

          How to stop it? Simple, stop giving away percentages on your own for simple chores. Stop dealing with agents at all, hire IP lawyers for a flat fee, and as often as possible go with publishers who pay flat fees for a set time frame. A lot of European publishers’ contracts are that way, all good short fiction contracts are that way.

          It is fine to give the players along the way to selling a single copy of a book a percentage, such as a bookstore, a distributor, and so on. But when it comes to the overall property, the golden goose that is your copyright, stop giving away percentages. It really is that simple.

  15. Dr. Doug says:

    Thanks Dean for taking the time and writing such a thorough answer.

  16. Teri Babcock says:

    I worked for an oil and gas exploration company for a number of summers. During that time, my company was putting together a huge development project in virgin territory – ultimately worth billions of dollars. The geologists and geophysicists knew there was gas there. It was just a question of finding where exactly.

    The company did something I thought was strange, given the certainty they had about the project. They sold 70% of it to another, larger company and worked with them in partnership. I wanted to know why they would give away such a large percentage of something they knew would hit. And the geophysicist told me it was about risk management.
    The other company had deep pockets and considerable expertise in operations, something we lacked. It might take many wells – expensive wells at a million dollars per – to hit pay. And so, this was the best business choice.

    It seems to me some authors are looking at their getting their books ready to market the same way. If they don’t have enough cash, and they don’t really know if their book is going to sell, it may seem like a clever idea to save cash and ‘spread the risk’. If the book doesn’t do well, the cover artist or translator gets nothing and the author is not out of pocket.

    But novels are not oil wells. An experienced writer who knows their craft and has some moderate success already under their belt should never make this choice. They will only lose out. If you are a brand new writer and your book becomes a good seller, either now or in the future, you lose out. The time or cost to a bookeeper for the accounting alone would make you wish you had invested the time in learning graphic design instead. This percentage model for services only benefits authors who have little to no sales.

    Going back to the oil company. Our big partner company bought in at 70% by covering 70% of all historical and future costs. All the land aquisition, the work that had gone in to prepare the project, they paid their share. They didn’t just roll into town and give us 70% of the drilling costs.

    By this model, anyone who takes a percentage in your book should be bringing to the table that percentage of value in past costs, as well as current. If you give an agent 15% of the rest of the future income, have they given you 15% of the cost to create the book? Will they continue to contribute 15% of the value to the work through the life of the book? Are they contributing an equivalent 15% of marketing and promotion, or some other service that adds tangible value to your brand or increases sales?

    If not, what are they actually being paid for?

    • dwsmith says:

      Thanks, Teri. Great comment.

      And with agents, I agree. I have said for a few years now that agents need to pay writers around $1,000 up front just for the chance to take a book out to sell it. A simple shopping agreement with no license or rights involved. If that became the norm, I could understand writers sending books to agents. But since it isn’t the norm in book publishing (it is in Hollywood), then I see no reason to ever send a book to an agent. Sell them to editors. Hire an IP lawyer to help with the contract.

      Remember, folks, I have sold over 100 novels to traditional publishers. AND NOT ONE WAS SOLD BY AN AGENT.

  17. Patrick Szabo says:

    Another great piece, Dean. Nice job.

    I have a really dumb question. I plan on doing all of the formatting, covers, etc., for all of my stories and novels. Around the ‘net I keep reading that word processor programs are not all that good to use because they are messy when converting to HTML to build the eBook. What do you write with? I don’t have a Mac so I have Word and Wordpad installed on my PC.

    I guess I am looking to streamline the process a bit. If I don’t have to spend a lot of time cleaning up a document upon completion so I can convert to ebook formats, then hell yeah!

    • dwsmith says:

      Patrick, I just use Word to write in. I have since I finally got tired of WordPerfect about twenty years ago. (grin) Easy to format and upload in Doc to Smashwords, and then I take the same master and save as an HTML file, then convert it to ePub format using Calibre and upload ePub format to Kindle and Pubit. Very very easy.

  18. Martin says:

    I am a gardener Dean, not a gardner is there some misunderstanding on my part here?
    http://plantingcrows.blogspot.com.au/2012/05/gardner-vs-gardener.html
    regardless I refuse to call myself a gardner, anyway back to topic, any problem with using a system like sm.shwords where they take 20% but you keep all copyrights ? thanks I will keep reading.

  19. Faye says:

    This really an amateur question. My 17 year old daughter is over half way through writing her first fantasy novel that she has created a whole world, back story and all. It will be a 4 book series. Her work has been evaluated by the head of her school English department who knows good writing who teaches AP.

    My question is what are the steps to publish. From what you said here skip the agent. How do you find the right publisher? What about publishing through Amazon?
    Thanks in advance

    • dwsmith says:

      Faye, the steps to self publish are outlined above under the tab “Think Like a Publisher” at the top of the page. As far as selling to New York, you would send the work directly to an editor at a publishing house with a cover letter and a Self Addressed Stamped Envelope for a reply. If the work is long like a novel, just send the first few chapters and a synopsis of the work. If the work is short, find magazines that publish similar stuff.

      Prepare her for lots of rejection. No offense to English teachers around the planet, but pleasing an English teacher does not mean the writing is professional commercial level. English teachers look for different things than an editor. Editors want good storytelling and something that fits their line and they think will sell to a lot of readers.

      Good luck to her. Hope this helped.

    • Carradee says:

      Faye, I don’t have nearly Dean’s experience in publishing. (I’m frankly an infant compared to him.) But I do have several years’ freelancing under my belt, and here’s something I’ve noticed:

      Good fiction ≠ good non-fiction. What’s “good” in one is actually bad in another, and generally speaking, fiction that can pass your standard grammar geek English professor is…bland, because it follows the rules of formal non-fiction. For example, in some types of formal writing, passive voice and linking verbs are good, whereas they tend not to work out as well in fiction writing.

      A lot of English teachers don’t realize that what they’re teaching for essays actually tends to be English for formal writing (though they sometimes teach a variant, such as English for informal writing). So they things they consider good or bad about a piece of writing might actually be the reverse for that specific type of writing.

      Again, just something I’ve noticed. :)

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