Killing the Sacred Cows of Publishing: You Can Trust Your Agent


Okay, I’m going to grab hold of the third rail of fiction publishing with this one and see how long I can hold on.

Myth: You can trust your fiction agent. Major myth, actually. And one I have tried to deal with in a number of ways in this book.

For some reason, the same person who will give a stranger all their money and the paperwork for that money will at the same time shout about a reader stealing a book online. I shake my head at that. That’s like complaining someone stole the mirror off your car while at the same time a moving van has backed up to your house and strangers are stealing everything you own. But, of course, theft in modern fiction publishing conversations is limited to the theft of the mirror and we just won’t notice how all the furniture is gone.

In some great comments under a recent post with Laura Resnick and C.E. Petit, the topic of how to check money you get from publishers came up, along with how much agents can help you with the money from publishers, and how much they can’t. You can read all the comments here.

The myth (the deeply held belief until smashed out of a fiction writer by hard knocks) is that once you will get an agent they will take care of you, and all your money, and make sure that you get all the money you are owed. Well, in theory, that’s the way it should work. Sadly, it doesn’t anymore, if it ever did.

Now fiction agents are far too busy to chase money, or check royalty statements for their clients to see if the math is correct, or even bother to send the money along to their clients. And keeping track of paperwork is just beyond them these days. For example, I had a top agency for seventeen years and sold a ton of books through them. However, two days ago I got a huge packet of royalty statements from one of my publishers through my former agent’s office. In the packet were royalty statements from two other writers (and not my pen names I’m afraid). My former agency couldn’t even sort out the royalty statements by name, let alone check them for accuracy. And five of my books that should have had statements in the pile didn’t. No telling where those statements went.

And last week my wife got a very large check from a former agent made out to the wrong name. It was her check, correct amount of money, just the wrong name on the check. That was just in the last week. Things like this are so common anymore as to not even cause a ripple. Wow, is that sad. I know agents should check these things, but alas those days are long gone.

In many Killing the Sacred Cows of Publishing chapters I have shouted about all the problems the agent system has these days, including handling money. That money chapter is here.

The bottom line of that chapter is to never let anyone, let alone an agent, get your money before you do, along with all the paperwork that comes along with that money. When you take that practice and place it in the real world, you see how fantastically stupid it is.

Let me ask you…In the real world of business, would you hire a stranger who has a business card with his name on it saying they are a stranger and do no more checking? Then would you give all your money and all the paperwork with the money to the stranger first, without seeing it? Of course you wouldn’t in the real world, but that’s exactly what fiction writers do and then wonder why there are problems.

Let me simply say, “Duh.”

But that said, I got a number of private letters after that first chapter on this topic asking me why I didn’t like the idea of agents handling a writer’s money. Seriously. So after that and the last discussion, I figured it was about time I grab the never-discussed third rail of fiction publishing. Here goes.

Do Fiction Agents Steal From Writers?

Of course. Some do, most do not. And people in agent’s offices like accountants and secretaries do also. Of course, so do some fiction publishers in other ways such as publishing without paying, but not anywhere near as often as agents. The biggest problem is the fiction agents and those working for them, and the system the fiction writers have set up with them, giving the agent and their people opportunity with all the money and paperwork first. (That can be changed easily at the contract stage, but the writer must stand up for themselves and most writers don’t because they are too afraid for some unknown reason. More in a moment on that.)

What fiction writers have done is give agents opportunity. Embezzlement is a crime of opportunity. Writers, by allowing agents to see their money and the paperwork first have given agents opportunity. Easy opportunity. And again, most agents do not take advantage of the flawed system and are very honest, but some do. Also some people who work for honest agents do, and the problem is you don’t know which ones.

My wife, in her very young adult days before me, had a bank employee steal money from her account because Kris and her first husband were disorganized and the employee of the bank knew that. This employee stole from a lot of accounts that didn’t bother to balance statements every month. It took the bank almost two years to catch the employee and pay the money back quietly. Opportunity is the key.

So let me outline clearly, for sake of helping fiction writers at least come aware of the problem areas, how a few agents take writer’s money. Sadly, I will only cover the main scams. And again, there are many honest agents, but how do you know if your agent is one or not? Best way to make sure is get your money and all the paperwork before they do. If they won’t give it to you, you better believe they have a monetary interest in not doing so, because by not doing so, they cause themselves extra work. And that just makes no business sense at all.

Scam #1: Domestic Royalty Statements.

Fiction writers sign contracts and usually know when they are due the different payments under that contract. But the contract also has royalty periods where a short time after the end of a certain period of time the author should get an accounting from the publisher of the numbers of books sold against the advance in that period of time. That paperwork, and any royalty check due, goes to the agent first. Writer has no clue other than knowing that a royalty statement is due. (If they remember from their contract, which the unorganized fiction writers usually won’t.)

So, the agent sometimes sends on the first royalty statement to the writer because there is usually no earned income in the first one. Usually the periods are short periods or have large reserves held against returns or both. Maybe the second statement is also sent along six months later if nothing is earned yet. By this point the book has been in print for about 18 months. The third statement has money with it. Great! But now we are talking two years out and the agent knows the author is disorganized and doesn’t care about all the paperwork, so the statement gets shredded and the money put into the agent’s account and no check is ever sent to the author.

Those of you with contracts with major publishers, first have you seen royalty statements at all through your agent and did those statements sort of just stop after #2? If so, I’d be asking for them real quick. (Oh, yeah, I can hear it now…“I trust my agent, they are my friend, they would never do that to me.” Well, how about someone you don’t know in the agency accounting department then? You know and trust that New York stranger who is having bill problems and a kid in an expensive school? If not, get your statements.)

Scam #2: Overseas Royalty Statements

Oh, this is a major one. I can’t begin to tell you how many times I have had agents tell me how hard it is to get overseas royalty statements. Yet those companies give you contracts with royalty periods in them, and tell you exactly in the contract when the statement is due. But alas, here comes the agent problem on this one. Since you, the fiction writer, are not dealing with the publisher directly as you can do these days, your royalty statement and any money with it FIRST goes to an agent in the country of the publisher. Who knows how many people touch it, but I can guarantee at least three or four complete strangers see your money and have some control over it before it is sent on, if it is sent on, to your New York agent.

And then the second level comes in. Your New York agent knows you are disorganized, know you don’t care about all that “business paperwork” so if money does make it to your agent, again the paperwork can just vanish, the money stays in the account, and guess what, the agent is making more of a profit. And the fiction writer will never, ever know. And, if by some chance, the fiction writer asks about those overseas statements, the agent says, “Oh, I’ll see what happened to that, but you know how hard it is to get royalty statements from overseas.” And that’s where the fiction writer drops it, moving on, never knowing there was money owed. And more money in six months. And so on.

Scam #3: You don’t Need to Sign That, I’ll Take Care of It.

Darn I wish I was kidding on this one, but I listened to some top fiction writers (whom I admire) go on about how they have given their agent power of attorney to sign those pesky overseas contracts. I got so upset at that stupidity, I had to lay down.

So, not only is the fiction writer giving a stranger all their money and the paperwork with that money, but they are giving the stranger the power to sign contracts. It was just about that point I knew I had to start talking about all this. Those writers thought that normal, and when I questioned them, their reasons were clear as long as trust was a major factor. Basically the reason for them was “It’s just easier and quicker.”  The quicker part made me lay down for a second time.

But where this scam really hits home is with newer writers. Under international copyright rules, the contracts are always in the language of the author. But agents will tell young writers there is no need for them to see the contract because it is in German or French or whatever and they wouldn’t understand. The agent “will take care of it.” One agent who at the time was serving as the president of the agent’s association was pulling this scam on writers. More than likely still is.

So let me be clear. Under this scam, the author never sees the ORIGINAL contract. So if they do see a contract at all, it could be changed before it gets to them. Or more than likely they will never see a contract, or a royalty statement or anything. Of course, some money will be sent on to the author because the book is in print overseas. But a nice 10,000 Euro contract might get the author $4,000 and where does the rest of the money go? Nice little bonus for the agent with the stupid fiction writer client.

Okay, that’s enough. I had a few more, a couple concerning Hollywood money, option money, and other odd rights sales, but I won’t go on. You get the idea.

Do Publishers Steal From You?

Sure, but not very often. And more often in smaller publishers who are tight on cash flow.

For example, I had a small press company called Pulphouse and near the end we got tight on cash flow. Was I slow paying some writers? Sure. But I never took any writer’s money because I structured all but one of our series to never have royalties and thus they were not needed in the contracts. (Remember I was a writer first, publisher second.) And the only series we did with royalties I made sure the first printing was under the amount that would start triggering royalty money to authors. (I wasn’t stupid, I knew we were short on money and I didn’t want the temptation.) We paid one royalty check ever in all the years of Pulphouse. And I paid all writers kill fees who asked for them when we went down and I couldn’t get their work into print as promised.

And often a small publisher will steal copyright from a writer by publishing their work without payment. That happens a lot with cash-strapped smaller publishers.

However, in the big companies things sometimes do happen and it is often the employees buried in accounting that are the problems, or a general corporate policy that turns out to be theft and takes years to clear up with many lawyers and professional accountants involved. Writers in contracts are given the chance to audit their paperwork. If you decide you have to do that, hire a professional versed in your area of publishing to do it. Often there are no problems found, but every-so-often there are.

If you are smart you get your share of the money sent directly to you and copies of the paperwork with that money. However, if you send all your paperwork to an agent even if someone in a publishing house is ripping you off you might never know.

And by the way, in case you were wondering, fiction editors in major houses never get near the money at any time and will have no idea any of this even goes on.

So instead of worrying about some fan taking one of your stories online, here is what you should be doing to get all your money and protect your work.

SOLUTION

One… In all fiction contracts, including overseas, without exception, split payments with your agent. Your agent can get his share and a copy of the paperwork. You get your share and a copy of the paperwork. Do this at the contract stage with the publisher. And if your agent says it is just too hard to transfer money from overseas or gives you some other lame excuse, just remind your agent this is 2010 and it isn’t difficult or expensive anymore. Put the details in the contract.

Two... Check the paperwork to make sure the numbers add up each time and the amount you have been paid is correct. If there is a problem, talk to the accounting department in the publishing firm. Not your editor. Again, editors are not connected to the money in any way.

That’s it! Two simple steps to make sure you never get stolen from. Simple steps.

WARNING SIGNS OF PROBLEMS.

Here are some warning signs you are with an agent who wants to get more of your money than they are entitled to.

Warning #1: They will not split payments in your new contract and will give you all sorts of varied reasons. Understand, splitting payments allows them to do LESS work. If they will not split payments, I’d be going back and checking older contracts and statements with them, and I sure would fire them in a heartbeat.

Warning #2: They want you to sign a power of attorney so you don’t have to sign those pesky overseas contracts. RUN!!!!!!

Warning #3: They will not allow you to split payments with your overseas publisher. Ask them to explain clearly why not and have enough understanding of how the money can get sent directly to you so you can direct what needs to be in the contract to get your share of the money sent directly to you. If they still won’t do it, you may be in trouble.

Warning #4: You haven’t seen an overseas royalty statement on any book, or a domestic royalty statement on a book has suddenly stopped after #2 or #3.  Start hounding for those statements. More than likely there is some money tucked somewhere that has been “misplaced” as agents say.

Warning #5: If you have a Hollywood option and you hear nothing about a renewal, don’t just figure the Hollywood connection didn’t renew. Check with the Hollywood connection, not your agent. Major money goes to agents from Hollywood on option renewals that fiction writers never seem to find out about.

Do agents steal your money? Yes. Most do not, but some do. Again, embezzlement is a crime of opportunity. Writers need to take the opportunity to embezzle out of agents’ hands. Agents are strangers to you, they have lives and bills in these tough times just as you do. If you are disorganized, don’t want to bothered, want them to take care of you, then you are doomed. You have given even honest agents an opportunity. Your agent won’t take care of you, but some of them will take care of your money of that there is no doubt. Don’t even give the many honest agents the opportunity.

Let me repeat one more time that there are two simple steps to solve this problem. Step one, split all payments in your future contracts with ANY PUBLISHER and step two, check your paperwork and make sure you get it all.

Okay, now I am letting go of the third rail and going on happy that at least I tried to wake up a few writers.

Get the money, get the paperwork before anyone else. And then check it. It’s only good business.

Don’t give anyone the chance to take your money. It really is that simple.

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Copyright 2010 Dean Wesley Smith
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Okay, I admit it, I don’t have an agent so any money you donate will go directly to me. And 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.

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. 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!

Thanks, Dean


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68 Responses to Killing the Sacred Cows of Publishing: You Can Trust Your Agent

  1. It should be mentioned (and probably will be at some point) that many of these same issues apply to book packagers.

    • dwsmith says:

      Ahhh, forgot all about dear old and departed Byron. Yeah, no idea how much he stole from me total, but when I stopped counting it was over ten grand. And that was before he died. But no speaking ill of the dead I suppose.

  2. R. L. Copple says:

    It’s so simple, it just, might, work!

    Thanks, Dean, for reinforcing that. It makes so much sense that it seems crazy that it isn’t the industry standard. Maybe in the future it will be.

  3. And here’s the key thing:

    Although most agents would NEVER embezzle a single penny from a client… the small percentage of agents who do, alas, do not helpfully wear hats, pins, or T-shirts identifying themselves as embezzlers. They look, sound, and smell exactly like the majority group, i.e. the non-embezzlers. Yes, that’s very inconsiderate of them, but there it is.

    Pretty much the only way they’re ever identified is AFTER a bunch of their clients have noticed that a bunch of their money is missing.

    Off the top of my head, I’m thinking of three agents in particular, precisely because so many of my personal friends were involved in those costly, litigious messes (at least one of which also involved a criminal investigation and the arrest of the agent). These certainly aren’t the only incidents where a well-established agent was found embezzling from clients, but they’re the cases I know best because I sat through so many conversations with the victims–i.e. the writers. In every instance, these were smart, experienced career writers dealing with reputable agents who were well-known in the industry; the victims were not isolated, unwitting newbies taken in by the hot-air pretenses of a disreputable scam artist. Even more chilling, most of these writers had been with these agents for years.

    Which is by way of saying, EVERYTHING that writers say about why they’re comfortable with their agents getting THEIR paperwork and THEIR money BEFORE they do… is exactly what all of THOSE writers thought. EXACTLY. “This is a well-established professional, we have a solid relationship, I trust him/her, there’s no need for me to demand split payments, etc.”… ALL of that was the sentiment of the dozens of writers, many of whom I know personally, whose money disappeared in those embezzlement scandals with (say it with me) well-known, well-established, reputable literary agents.

    And (again) here’s they KEY point: Those agents didn’t ever, at any point, thoughtfully wear T-Shirts that said, “I have a weak character and hyper-flexible morality, so when things get tough, I may steal from my clients.” Moreover (and this is the REALLY inconsiderate part), once they DID start stealing from clients, they did NOT wear hats or carry cards identifying themselves as embezzlers. In fact, they relied on and specifically took advantage of the TRUST (in contrast to common sense or sound business practices) which defines the fiscal structure of the traditional agent-author business model… TO steal from their clients.

    So all the statements along the lines of, “It won’t happen to me,” “My agent isn’t like that,” “My agent would never do that to me,” etc… are shockingly naive. Not because agents are larcenous; but because the very few who ARE larcenous–darn them!–take great care NOT to be identified as such (until they’re juggling so many balls that they all fall down and a bunch of writers finally realize that thousands of their dollars are missing).

    (Of those three embezzlers who represented many of my friends and acquaintances: one is now deceased; I don’t know what happened to another; and another is–wait for it!–back in the business now, under a slightly altered name: Writer Beware did an update… and was angrily attacked by aspiring writers who think this agent is, er, “nice.”)

  4. Something else well worth noting: money isn’t the only way TRUST can be a problem in the agent-author relationship. An agent who has no intention of stealing from you can nonetheless violate your trust in professionally damaging ways.

    After I fired one of my former agents, and editor told me I had made the right decision… and proceeded to describe to me exactly how the agent had deliberately sabotaged a deal of mine with this editor… because the agent (for reasons which will forever elude me) didn’t want me to write that book. (I have since heard similar stories of that agent sabotaging other clients’ deals when they were–for reasons which will forever elude me–deals the agent didn’t want the writers to make.) And to reiterate, this is (all together now!) a well-established, well-known, reputable agent.

    A writer who called me this week to discuss problems with an agent (one who, precisely as Dean warns above, claims the writer has seen no overseas royalties statements because “they don’t exist” or are “impossible to get”) has learned, since firing the agent, that this agent was sabotaging this client with the publisher–learned it from the editor.

    (In general, editors are in a tricky ethical position in such instances, and therefore usually don’t tell the writer about agent behavior like this until/unless the writer fires the agent. There are also too many practical risks in speaking up while the writer is still a client of that agent–including the very real possibility that the writer will get angry at the EDITOR rather than at the agent; that the agent will create a stink in-house about the editor’s “false” statements to the client; that the editor’s superiors will get angry about the editor’s candour leading to an unnecessary stink with an agent; etc.)

    Here’s another non-monetary way in which TRUST is a problem (one to which I don’t really see a solution) in the agent-author business model: Most agents, when taking on a new client, express some variation of, “I love your writing,” and, “I’m in this relationship for the long haul.” This was, in fact, exactly what I was seeking in my agent-author associations, what I specifically said I was looking for each time I queried and interviewed agents over the years, and what I reiterated before hiring each agent was my bottom line: Someone who loved or believed in my writing, and who was interested in a long-term, career-building association. Indeed, I specifically told every agent I ever hired, during the querying/interview process, that my books don’t usually sell easily, and that a number of my projects don’t sell at all, so I =HAD= to have an agent who loved my work, because most of the time, my agent would need to stick with a project for a while to find the right market for it.

    In EVERY case, the agents I hired assured me that were EXACTLY that person: they loved my writing and were looking for a long-term, career-building association with me. In every case, I believed them. In every case, they betrayed this trust. Two of my agents NEVER READ my work while I was a client; one of them read only my synopses, and I’m not at all sure the other read even that much. Another dumped me within four months of my hiring him, after the first MS I gave him got five rejections. (So much for loving my work.) Another substantially changed the terms of our business agreements 2 months after I became a client, with the clearly implied threat that the association would end (or at least go into paralysis) if I didn’t cooperate. (So much for longterm commitment.)

    So for me, in multiple ways, the attempt to build a business relationship based on TRUST with someone whom, in fact, a scant acquaintance, at most… always turned out to be oxymoronic.

  5. Oh, P.S.. where I wrote, “Two of my agents NEVER READ my work while I was a client…”

    To clarify, this wasn’t about ego, stroking my back, holding my hand, or wanting to feel loved. This was about business. I found it a serious disadvantage to be professionally represented in publishing by someone who didn’t know what I wrote, didn’t know my strengths as a writer, was unfamiliar with the quality or tone or my work, unfamiliar with my subject matter, etc. In fact, I found it SUCH a disadvantage that, after leaving an agent with whom I had this problem, I said specifically, emphatically, and repeatedly in my pre-hiring interviews with my next agent that I considered it CRUCIAL that my next agent be someone who actually READ my work. My next agent specifically, emphatically, and repeatedly assured me, “Absolutely. Of course! I read everything my clients write. I couldn’t represent them properly if I didn’t!” And so on. And that is the agent who not only never read any of my books (including books on which this agent was earning commission) while I was a client, but who I’m not at all sure ever even read my synopses.

    • dwsmith says:

      What Laura said about trust in so many ways can be shattered and often is these days. And it can happen at any level. Great points, Laura, thanks!

      I’m not sure which agents you are talking about, but one major agent known for sticky fingers and scams with overseas royalty statements is still a major agent and working. This agent has been sued a number of times, but always settled with the writer involved with an agreement to stay silent on the writer’s part.

      And I agree with you Laura on the point that most agents are honest. And the ones that are not are often the most respected and writers sure can’t tell. But also, folks, remember, if the money goes to a big agency where your agent works, there are a lot of people along the way who can embezzle some or a little off the top. I was with one agency for seventeen years and never met the folks in accounting and didn’t meet a couple of my agent’s assistants, two of which were fired suddenly and without any announcement as to why. Your agent may be trustworthy and honest. But that person in accounting may have another issue.

      Split payments and both get copies of the paperwork. A very simple solution that any honest agent should not have a problem with in the slightest. It saves the agency a ton of work and doesn’t give opportunity to anyone in the agency.

  6. Jeremy J. Jones says:

    Laura wrote: “Here’s another non-monetary way in which TRUST is a problem (one to which I don’t really see a solution) in the agent-author business model: Most agents, when taking on a new client, express some variation of, “I love your writing,” and, “I’m in this relationship for the long haul.” This was, in fact, exactly what I was seeking in my agent-author associations, what I specifically said I was looking for each time I queried and interviewed agents over the years, and what I reiterated before hiring each agent was my bottom line: Someone who loved or believed in my writing, and who was interested in a long-term, career-building association. Indeed, I specifically told every agent I ever hired, during the querying/interview process, that my books don’t usually sell easily, and that a number of my projects don’t sell at all, so I =HAD= to have an agent who loved my work, because most of the time, my agent would need to stick with a project for a while to find the right market for it.”

    I think if that is what a writer is searching for then yes, there really is no solution for it because agents will always tell writers that. That’s their biggest power over writers, I believe.

    So the only solution is for writers to not need their agent to love their work. If writers stop looking for an agent who showers them with praise, they would be less susceptible to falling in with any old agent.

    Of course, that won’t happen for most people. It’s a bit like people who get involved in romantic relationships with anyone who comes along because they require a relationship. That usually ends badly, or worse, continues badly forever.

    To be clear: I’m not trying to insult you, Laura, and I’m well aware that you are out of working with agents, more than likely forever. But when I read that, I thought of writers who are desperate to be told their writing is great and who would get seduced by someone with a slick delivery.

    • dwsmith says:

      Jeremy,

      And thus the main problem with this, and all the scams and stupidity around agents. I have never blamed agents, but always tried to get writers to WAKE UP! Your point about writers being needy for some person they don’t know to say they are great is spot on the money. And with that as the starting point, is it any wonder writers say “Hey, here’s all my money and the paperwork with the money. Go ahead, take some if you need it as long as you tell me I am great.”

      It is that aspect alone that I hate most about writers. That aspect is the deep root cause of all stupid decisions in this business. And agents know that and feed into it. Interestingly enough, publisher’s don’t. They mostly just buy books and the writer is the supplier. What Laura and I are trying to do in so many different ways is to simply get writers to wake up and realize that getting an agent is a choice and one that should be made cleanly and with business in mind. But if you make it as you described Jeremy, every agent as you said will tell you that and then just not read your work, as Laura said.

      Editors HAVE to love your work, folks, because they are putting their job on the line to buy it and working with your work for sometimes months and even years. Agents don’t have to bother to even read it and many, as Laura has pointed out, don’t bother. Send your work to the editors, the real people who love fiction and are willing to love and fight for your work.

      If you need someone to pat you on the back, get a writer’s workshop. It’s cheaper than bending over for a crooked agent.

  7. Dean and Laura,
    For those of us in the early stages of a career, could you please comment on how much leverage a writer has with contract negotiations. I suspect that part of the problem is that a newer writer goes through so much to get an offer on the table that he or she if afraid of losing the deal by pushing for changes in the contract. Of course, that does not mean you take what they give you and set yourself up for a fall. What I am asking is how much wiggle room is there in book contracts? How far can a writer push for those safeguards without offending the editor and risk losing the deal? Just how open are these contracts to negotiation? I’d love to see a chapter on Book Deal Etiquette: how much you can push for and when. What is your strategy when you sit down to negotiate?

    • dwsmith says:

      Marta, good question and impossible to answer of course. The only correct answer is “It Depends.”

      As Matt and others have proven, a writer, with help of a good qualified in fiction IP attorney can negotiate a contract themselves. Will they get everything perfect for them? Of course not. Meeting in the middle is the idea in any negotiation. If you are asking about splitting payments, there is no reason for a publisher to not agree to such a simple change if the agent on board asks for it. The key with the topic of this post is making sure you and your employee are on the same page on this. No publisher will say no if the agent asks for it. Of course, if you do it yourself or with an IP attorney, there is no need to ask for that. All the money just comes to you.

      If you want to go in and change boilerplate in contracts as a new or even experienced writer, you had better have real clout. Not going to happen.

      So it depends. What is interesting is that writers think they will mess something up by asking. Asking never hurts. Demanding is stupid, but asking never hurts.

  8. nathan says:

    Having sat at lunch with you & Kris a number of times I’d say you didn’t really grab 3rd rail on this one–you just kind of poked it with a semi-insulated stick.

    The fact of non-disclosure agreements as part of settlements is insane. It makes the writer an unwilling accomplice in the agent’s next theft.

    I’ll be honest, the gravitas of the name and SIZE and ubiquitos nature of some of the agents I’ve heard these stories about is frightening.

    For those reading this remember what Dean wrote–one of the thieves he’s talking about was the PRESIDENT of the agents association. how high profile do you think that person was, what would that person’s stable look like?

    You didn’t mention funneling writing into book doctors, you didn’t mention…never mind, my coffee’s kicking in.

    It sounds like I’m complaining about you and I’m not. It’s just that being privvy to some behind-the-scenes conversations over the years made me realize how many writers are excited about getting “top” agents only for me to be sitting there knowing those same “names” have stolen in the past.

    Heed Laura’s comments folks and read between the lines of what Dean’s saying. This kind of thing isn’t religated to the fly-by-night greasy-suit wearing comb-over crew…it happens at the houses of the biggest names too.

    Man I wrote so fast you’ll have to excuse the spelling.

    Great article Dean, I hope many, many people think hard about this. Mainly because getting published is hard. Getting ignored with submissions is frequent and temptation to give the grief over to someone else to handle is incredible. The myths exist because they’re pretty, shinny lies that make us feel warm when we believe ‘em.

    Thanks Dean (and Laura).

  9. C.E. Petit says:

    I suggest that a large part of the problem — for agents, for publishers, for lawyers — is inappropriate admixtures of roles. Perhaps a few examples will help illustrate:

    * An agent must evaluate literary and financial merit of manuscripts (and the basic sanity of the authors); cajole publishers into agreeing to license those manuscripts for print publication; engage in (increasingly complex) contract negotiations over those licenses with persons who usually are not themselves competent to negotiate; manage derivative rights licensing; obtain and audit financial statements; sequester client funds; etc., etc., etc.

    * A lawyer must manage client moods; investigate factual circumstances; perform legal research; write write write write write in a field that positively discourages clear writing; either prevent or resolve disputes with parties with a wide variety of trustworthiness issues; and somehow manage to get paid. (Lawyers and dentists are a lot alike: Expensive, not covered by insurance if worthwhile, consulted only when there’s already a lot of pain, and entirely dependent for results on how the client/patient behaved outside the office before the first visit.)

    * A publisher must determine and implement a business structure and model; determine what material it wishes to license; negotiate licensing agreements (aka “contracts”) with people who do not understand its business structure and model, and who usually have inflated (if not grandiose) ideas of the commercial value of their manuscripts within the publisher’s existing business structure and model; engage in the editorial process; engage in the publicity process; engage in the s&m (sales and marketing, you prurient readers!) process; either produce or contract for the production of copies; take and fulfill orders; account for revenues and costs, and spit out royalty statements, despite the monopolistic downstream distributors’ lateness and inaccuracy (not to mention the unduly ridiculous returns system); etc., etc., etc.

    The obvious problem here is that we’re asking each of the actual/potential downstream participants in the process to be highly expert at intellectually, psychologically, and doctrinally incompatible things. Of course there are going to be problems… even if everyone is operating in good faith; and since we’re talking about human enterprise, not everyone will be operating in good faith.

    None of this is to excuse anything; it is only to understand. As an example, I simply do not stand (and almost never have) between the author and the publisher during contract negotiations; that is not my skill set (I have a tendency to intimidate and piss off non-lawyers when advocating for a position, which is at least as much a relic of the better part of a decade as a commanding officer as it is of getting that J.D.). But that’s because I can step away from that particular aspect of my “job,” as I simply limit the scope of consultation; in the contemporary system, agents can’t do that and publishers won’t do that.

    Can you guess who ends up paying for all of the mistakes caused by these incompatible roles? (Hint: It’s not the agent or the lawyer or the publisher.)

  10. heteromeles says:

    I’d suggest a third requirement: Have a contractual way of ending the contract with your agent.

    I’m not a professional fiction writer, but I studied symbioses for my PhD. The world runs on mutually beneficial relationships between unrelated organisms. Our domestic animals, our stomach bacteria, etc. The details vary endlessly, but just about every multicellular organism has some symbiote, somewhere. Most bacteria do, too.

    Symbiosis is, essentially, a business relationship, where partner A pays partner B to do something in return for partner B’s goods or services. Like any business relationship, there are quite a few ways that a symbiote (a beneficial partner) can turn into a parasite (a non-beneficial partner).

    How do bacteria and all the rest maintain their symbioses? By having an effective mechanism for detecting cheating and punishing a partner who cheats. When they lose the ability to detect or punish a cheater, they invite in a parasite.

    That’s all any writer (or business-person) has to have to create a beneficial business relationship: the ability to detect and punish cheating. When both partners have that ability, it paradoxically keeps the partnership mutually beneficial.

    Even bacteria do it!

  11. “But also, folks, remember, if the money goes to a big agency where your agent works, there are a lot of people along the way who can embezzle some or a little off the top.”

    That’s an excellent point. One of my former agencies, with whom I had trouble collecting statements as soon as I became an ex-clients, has a four-person accounting department; I did not interview, choose, hire,or ever even meet any of those people. (And RE assistants: After becoming a client when I already had an offer on the table, I eventually wondered why the final negotiations on my contract were taking SO LONG… and was STUNNED to eventually learn that, without consulting or notifying me, the agent whom I had recently hired, er, had turned over that business to the assistant–someone whom I had NOT interviewed or hired (and the delay was precisely because the assistant was completely clueless.)

    Another of my former agencies (the one where I have far and away the most trouble since becoming an ex-client), I again didn’t interview, choose, hire, or ever meet the bookkeeper–and our only contact has been based on my having problems with this person’s work (such as, oh, how MUCH TROUBLE I have collecting my royalty statements from this agency, which repeatedly refuses to consent to split payments). RE assistants again, that was another agency where I one day got an offer on the table myself, via my own contacts, and suggested to the agent that a reduced commission would be appropriate, since there was already an offer; the agent refused,m declaring that a full 15% was merited; so imagine my surprise when, er, the agent’s ASSISTANT thereafter wound up negotiating that deal. I was now paying a full commission on a deal -I- had gotten… to be negotiated by someone I had never interviewed or hired (and, indeed, didn’t know from Adam, as the saying goes).

  12. “If writers stop looking for an agent who showers them with praise, they would be less susceptible to falling in with any old agent.”

    Jeremy, maybe you hadn’t yet read my follow-up post. This isn’t about needing to be loved or showered with praise; it’s about BUSINESS.

    An agent who doesn’t love your work (a) usually doesn’t know what to do with it, (b) often won’t send it out, and (c) invariably gives up after his/her 2-3 closest buddies have turned it down and won’t send it anywhere else.

    Thus, unless you luck out and happen to be a writer whose work one of the agent’s 2-3 first submission choices loves, it’s VERY HARD to sell books and make a living if the agent doesn’t love your work.

    Repeat: This is about BUSINESS, not about strokes, and not about desperation.

    It’s also why I disagreed with someone on the previous topic who thought an agent made a poor business decision because she recently turned down an author who had an offer on the table. In fact, that was a commendably ethical decision on that agent’s part, given that she defines herself as an agent who needs to love the client’s work to get behind it and stick with the client over the long haul. Too many agents DON’T ask themselves the key questions they should be asking when they’re queried by someone who’s got a commission already lying on the table, just waiting to be collected; they DON’T ask themselves, “If the house refuses to accept the MS after it’s delivered [yes, this happens], is this still a writer I want as a client? If sales are weak and the house drops the writer after this contract, do I want to do the work of placing this writer at another house?” If the answer is yes, there’s potential in the association. If the answer is no, an agent will usually pass. Unforunately, too many agents simply say “yes” because there IS money on the table.

    Because what many agents like more than good writing is money on the table. If you’re a very commercial writer and/or well-suited to one of the agent’s handful of editor buddies, then you’re easy to sell–and thus, you may well =never know= whether or not your agent actually likes your writing. It’s when selling your work ISN’T as easy as falling off a log that you’re probably up shit creek if your agent isn’t committed to your career–and what will mostly commit an agent in those circumstances is your WORK: the agent loves it and/or believes it’s very commercial but just currently under-recognized and/or not yet published right.

    As I stated in my previous post, I told each agent before hiring them that I specifically needed an agent who loved and believed in my work, because it has always been my experience that my projects aren’t easy to place, so an agent would usually need to stick with a proposal for a while before it sells. The need to “stick with a proposal for a while before it sells” was precisely why I was at a disadvantage with agents who didn’t love and believe in my writing, and therefore invariably quit after 1-4 submissions.

    • dwsmith says:

      I agree, Laura, again it is back on the writer and the way a writer enters the employee/employer agreement.

      If a writer enters the agreement with an agent with the attitude they want to be stroked, all agents will do that for them as long as the agent has an easy sell. The moment the easy sells stop the agent will stop returning phone calls or worse yet, tell the writer to write something the agent loves, not the writer’s vision.

      But if the writer enters the agreement with the agent that the agent must be behind and support the writer’s work, whatever the writer wants to write, as any good employee does for any employer’s product, then as you say, Laura, things have a shot.

      But as I have been saying all along, it is how and why the writer enters the agreement that is the problem. All of this always comes back to the writer, folks. So many writers do exactly as Jeremy described. Longer term professionals do as you describe, Laura. Problem is, agents are so good at telling writers what they want to hear, and the difference on the surface is slight between a writer wanting to be stroked and a business writer wanting an employee behind their work. And as Laura has told us, you don’t discover the real truth behind the sham of support until the going starts to get tough.

      I agree with Laura, I would never want an agent who won’t stand with ALL of my work as my employee and be supportive. I could give a rat’s &%# about being stroked. If I cared about that I wouldn’t write these things. I care about business and having an agent who is behind my work PERIOD.

      And Laura, here is where you and I might differ some. I want an employee who will stand behind my work and push it EVEN IF THEY DON’T LIKE IT. That’s why I hired them, they had better darned well do the job. Doing otherwise would be like an employee taking a job promoting a soft drink, but then going around saying no one should drink them because of the sugar. If I hire an employee to support my work, I COULD GIVE A RAT’S &%$ if they like it or not. Just do their job and support it and sell it. Otherwise don’t take my money.

      Impossible to find now I’m sure in this modern world of writers and myths.

      I learned this lesson by hard knocks at Pulphouse. I had a bunch of employees who thought I was too harsh, too nasty, and started wanting to do the business I had built their way. Instead of firing them and finding people who would work my way, I caved and tried to become a kinder more understanding boss. And that decision was more than likely the main reason Pulphouse failed. I lost my vision and started letting the employees run the business.

      When did it become required that an employee like every product they help sell? This fiction business is so screwed it, is it any wonder so many are running to independent publishing?

  13. Herteromeles wrote: “Have a contractual way of ending the contract with your agent.”

    Actually, this is in most agent-author agreements. It’s usually very vague though, seldom specifying more than one party has to inform the other in writing, and given XX days notice.

    Knowing what I know now, I’d have a MUCH MORE THOROUGH clause for this, specifying things like:

    – all domestic submissions must be resolved or withdrawn within xx days
    – all foreign submissions must be resolved or withdrawn within xx days
    – all payments/statements all all existing deals to be split 85/15 immediately by all publisher’s involved, at the agent’s request; the agent’s commission is to be forfeited and 100% goes to the author if the agent has not done this witin xx days of the association being terminated in writing
    – the agent immediately surrenders all interest in any rights which he has not already represented in deals (IOW, if he sold two books in the US, the termination of the association clearly states he will have no rights whatsoever to represent any subrights for those books, nor to claim a commission on any subrights sales subsequently made for those titles)
    – the agent is entitled ONLY to a commission on deals already made at the time of termination; no subsequent commission or partial commissions are to be requested or considered (this on the basis that one of my former agents claimed I owed her a commission on a book, if I ever sold it after firing her, simply because she had read the proposal–we had never even discussed the proposal, and it has been on her desk for barely a week when I fired her; but she was trying to claim I owed her a commission on any subsequent deal I made for that book because… she had read 60 pages of it)
    – any “agent’s copies” of the author’s books in existing deals which are still to be published and shipped will be shipped by the publisher to the author (of the author’s next agent) rather than to THIS agent

    Probably some other stuff, too, but that’s off the top of my head. And, once I’ve laid all this out, probably any agent in the land would decide I sound like a surly bitch with a load of baggage and they don’t want to work with me. (g) And yet, these are all obviously common sense things that, this being a BUSINESS association, really OUGHT to be clarified about what will happen with the money, the intellectual property, and the rights or perceived rights to commissions and representation, if the association terminates.

    • dwsmith says:

      Hey, Laura, I have a better idea for a termination letter. How about if the agent quits the writer or refuses to send out a manuscript, all monetary interest in any property sold terminates and agent shall be entitled to no more money period. That could be put in a clause in the contract. Might change the dynamic of an agent selling a few books for a writer and then walking away from that writer.

      Yeah, and that’s going to happen… Ahh, a writer can dream… Granted, now I am just being silly… Writers have given agents free money for so long, why would the agents agree to a termination clause that forces them to work or get no money. That would be too close to normal business practice. Too scary.

  14. C.E. Petit says:

    On termination:

    If agents were licensed, and subject to regulation and discipline like that for lawyers, the regulatory code would certainly include an appropriate termination requirement like that for lawyers… which requires lawyers to turn over all papers (etc.) to the new counsel and gives them at most the right to sue/arbitrate over fees allegedly due/paid/overpaid/whatever — not to hold papers or moneys due hostage when there’s a dispute or disagreeable parting.

    It’s not going to happen. Publishers don’t want it, because that would tend to reduce their negotiating leverage and ability to screw with agents who don’t know any better (since, if they’ve gone through a licensing process, there’s a decent chance that they will know better). The current agent community doesn’t want it, because it would represent an additional cost of doing business and perhaps result in the expulsion of some of them. Authors don’t want it as a group, both because they don’t know any better and think they’ll get stuck with the check. And media companies (especially H’wood) don’t want it, because they’re scared to death that somebody might actually read their damned contracts.

    On powers of attorney:

    There are only two people who should ever ever ever get your power of attorney:
    (1) Your spouse/next of kin/guardian, for dealing with medical and other emergency circumstances only; and
    (2) Your licensed, regulated lawyer, for dealing with matters requiring legal judgment.
    Nobody else.
    For any purpose.
    For any reason, “convenience” or otherwise… even a healthcare provider claiming that it needs a power of attorney to file for insurance reimbursement (it doesn’t). And if it’s a foreign-rights agency making the request, or foreign publisher claiming that it got rights that it didn’t because it assumed that the foreign-rights agency had a power of attorney, contact counsel of your own.

  15. “Just how open are these contracts to negotiation? ”

    It varies, Marta; but the most relevant specific thing to keep in mind is that no legitimate publisher withdraws an offer because the writer wants to negotiate.

    Publishing deals fall apart because there are clauses within the contract on which the publisher and the writer can’t reach an agreement; NOT because the writer and/or the writer’s competent representative says, “I propose these changes to these 14 clauses in the contract.”

    (I say “competent” because someone INCOMPETENT can screw up an ordinary negotiation to the extent that your name becomes mud at that house. That’s very unusual, but not impossible.)

    The notion that I can negotiate and you can’t (I’m using a generic “you” here), because I’m an established pro and you’re a newcomer, is mistaken. Erroneous. False. Nonsense.

    In many cases I am more likely than you to get more of the contractual amendments than I want–but this is for the same reason that, in many cases, I’m also more likely to get a bigger advance than you. (CERTAINLY not always, though. There are many examples of writers whose first novels were perceived as such commercial properties that they got big advances and had considerable weight in their negotiations.) But no one involved would perceive that I have more “right” than you to ask for what I want on that basis, or that you have less “right” than I to ask for what YOU want.

    In general, HOW negotiable a contract is depends on a variety of factors. In certain programs (Harlequin’s “series romance” imprints–Harlequin and Silhouette–is a very obvious example), only a small number of clauses in the 25-page contract are negotiable, and that’s just inflexible house policy. And on any number of occasions, Harlequin has choosen to lose valued writers who won’t agree to certain clauses, rather than negotiate those clauses with those writers. (Jennifer Crusie’s departure was a high-profile example. She wouldn’t sign the new “moral rights” clause that Harlequin introduced into their contracts about 15 years ago. She was one of their most popular writers (and she went on to become a hardcover NYT bestseller, thus earning tons of money for her next house), but Hq nonetheless wouldn’t negotiate with her on this clause, even though they knew they’d lose this valuable writer over this clause.)

    However, that’s fairly unusual. Not unknown, but not the norm in major publishing. At most major publishing houses, the contracts are HIGHLY negotiable. And in those cases, the author’s status is a substantial factor (ex. Nora Roberts gets more of her desired changes into a contract than I do, because I’m a spunky midlister, whereas she’s one of the most commercially valuable writers in the world). Other factors may be entirely internal–changes in house policy, recent house experiences, recent changes in distribution standards or printing costs or licensing standards, etc. (For example, the major houses have lately been trying to float the idea of a one-size-fits-all non-negotiable e-book royalty rate. Writers and agents are trying to sink that idea.)

    But, overall, my own experience and the experience of many writers I know is that contracts are very, very negotiable and all SORTS of things can be changed, added, deleted, and discussed. Moreover, one of my most interesting discoveries since shedding the agent-author business model is that a number of clauses that my former agents declared were “non-negotiable” or “industry standard” can indeed be negotiated. Not only are literary lawyers much more knowledgeable about contracts and contract language than agents, but they’re completely willing to toil away at it until every detail is just write–because that’s how they earn their money. By contrast, once the agent secures his/her commission via negotiating the advance, my own repeated experience with agents (and I’ve heard this too often from other writers, too) is that the agent then just wants the remainder of the negotiation to be over as quickly as possible–because, since s/he’s working on a commission basis, the agent doesn’t make any more money for spending 12 hours negotiating the clauses than s/he makes if she only spends 30 minutes doing that. Taking that into account combined with the lack of expertise that many agents have in terms of contracts (yes, some are EXCELLENT in this area; many are competent, others mediocre, and some are very weak in this respect)… my own experience has been that my agents were less thorough and less creative in contract negotiations than the results I get with my agents.

    Many established agencies have their own boilerplates with the publishing houses they deal with. In other words, if you’re a client of Slick Agency, which agency makes a deal on your behalf with Purple Publisher, and Slick has done business with Purple before, then your deal probably won’t open with Purple’s standard boilerplate; it’ll probably open with Purple’s “Slick Agency” boilerplate, a contract that Slick Agency has already negotiated with Purple which meets Slick’s standards of, in effect, the terms below which they will not make a deal with Purple. (Ex. Purple’s standard boilerplate says the option period lasts 17 years past when the moon was last in Aquarius; but Purple’s “Slick” boilerplate says the option period lasts 60 days after receipt of your next proposal.) This is a reasonable time-saving device, since negotiations can start from a boilerplate that’s already in some sort of reasonable shape, rather than from Purple’s boilerplate–which is NOT in reasonable shape, from the writer’s perspective.

    However, although the boilerplate is often cited as a reason for a writer to work with agencies, I think it’s wildly overrated. By virtue of having my lawyer negotiate for me, I now have a “Resnick” boilerplate with each house I work with (and I have it for a LOT less money than agency commission would have cost me). And, to reiterate, my contractual terms are better than they used to be, because my lawyer and I are more thorough and creative than my former agents were, and we stick with a negotiation longer than my former agents did. MOREOVER, in each instance where we negotiate from a publisher boilerplate to a “Resnick” boilerplate… the “Resnick” boilerplate is what we’ll start out with thereafter at that house, which will cut down considerably on the time/effort involves in future negotiations with those houses (and also cut down considerably on my future legal bills–on a previous deal with a house, I spent about $1600 on my lawyer; but now that contract is so close to what we’ll want it to be next (though we will negotiate for more changes/improvements) that I’ll be pretty surprised if my legal bill is even as much $800 on the next negotiation with this same house.

    Finally, not only do I find that contracts are more negotiable than I realized back when I was an agented writer… there are also clauses that a house starts out saying are indeed non-negotiable… which then, in fact, turn out to be negotiable. It all depends. And IT NEVER HURTS TO ASK. No deal–NO DEAL–falls apart because you ask. Deals fall apart because you and the publisher can’t come to an agreement over crucial terms. (And sometimes an agreement means the publisher says, “No,” and you’re disappointed but accept that and move on. Other times, it means a publisher agreements to a cange you suggest; or doesn’t agree to it, but makes a counter-proposal that meets you halfway; or says no, but then says yes when you propose a different alternative to the problem; or says, “No, and here’s why,” and the reason makes sense to you, even if you’re disappointed.)

  16. “How about if the agent quits the writer or refuses to send out a manuscript, all monetary interest in any property sold terminates and agent shall be entitled to no more money period. That could be put in a clause in the contract. Might change the dynamic of an agent selling a few books for a writer and then walking away from that writer.”

    Crikey, I almost made a terrible mess of my keyboard when I read that.

    I gather that writers secure a deal, a publisher, an advance level, and a professional reputation via an agent, then fire the agent and thereafter keep making deals with the same house, sprindboarding off the agent’s initial work to get them into that position but thereafter cutting the agent out of any work.

    I gather this from -agents-. Because ever since I got into the business, I’ve heard agents talking about their worries that a client will do this to them.

    In my own experience, 20+ years of working in the biz, I’ve never known or heard of even ONE writer who -actually- did this. I assume there MUST be one somewhere; the one who started the legend that a significant percentage of us are PLANNING to do it. But I have personally never known, met, or heard of a writer who actually did this to an agent.

    Whereas, as by contrast, agents FREQUENTLY dump clients (or completely ignore them) when the writer stops being easy to sell. Not only do I know this from personal acquaintance with many, many, many writers over the years who’ve experienced (and, indeed, these days, in this tough market, it’s an epidemic), but -I- have experienced it–with TWO of my four former agents. That’s 50%!

    So, yeah, Dean, I like that clause you propose. I like it! (g)

  17. Annie R says:

    Awesome post, Dean.

    Nathan – NDA’s (non-disclosure agreements) are a common part of business settlement agreements, esp. when the dispute involves the reputation of one of the parties. Yeah, they suck if you’re trying to investigate someone’s reputation or past history and a writer who’s been wronged can’t talk about his or her case against the agent. But often a party won’t settle unless the settlement agreement includes an NDA, so it’s either take the settlement money and keep mum or face a long, expensive lawsuit where the outcome’s not all that assured and even if you do win a judgment, there’s no assurance the bad guy won’t just file bankruptcy.

    C. E. Petit – dude, best description of a lawyer’s role *ever*!

  18. Dean wrote: “And Laura, here is where you and I might differ some. I want an employee who will stand behind my work and push it EVEN IF THEY DON’T LIKE IT. ”

    Well, in theory, I don’t disagree with you.

    In practice, the problems and logistics of this gave me many, many migraines back when I was still dealing with agents.

    One of the most frustrating, exhausting, and stressful problems I had as a client (and it was particularly costly and career-damaging with one particular agent, but it was an across-the-board problem for me with agents) was my agent declining to send out my work.

    Based on the relatively recent tendency of agents to have clients rewrite and rewrite to the agent’s specs (which I don’t recall being an aspect of the biz when I got into it 20+ years ago), this sort of thing may not be the gobsmacking surprise to aspiring and new writers now that it was to me–but it was a HUGE surprise to =me=. (And since I’m a slow learner, it surprised me over and over and over. And it continued frustrating, depressing, and impovershing me even after it stopped surprising me.) Until it happened to me (and then KEPT happening to me) I was unaware that a writer could send her agent a new proposal and… the agent would REFUSE TO SEND IT OUT.

    And my unwillingness to simply accept that decision led to SO much conflict, strife, and stress between me and agents–indeed, just “talking” about it now, after all this time, I can feel my teeth grinding, my jaw clenching, and my hand muscles getting so tense they hurt. (Pardon me while I regroup…)

    So, in principle, I agree with you; but in practice, I haven’t found it an expectation that can be fulfilled in this business model.

    Moreover… as I know from the confidences of editors and the experiences of other writers (and as I imagine you additionally know from your experiences editing), an agent who doesn’t like a project may well do such a male job of representing it that the agent, in effect, sabotages it, intentionally (to teach the author a lesson) or not (simply through diffidence, confusion, indifference, lack of market research, lack of polish in the agent’s presentation, etc.). So, again, although I agree with you in principle… in the real world, I think that an agent sending out a project without liking it too often works AGAINST the author in the HIGHLY competitive industry.

    (There is one obvious exception. If the writer is a bestseller or at least pulling in big advances/sales. As many pros know, since so many agents are blabbermouths, when attractively large sums of money are involved, a number of agents cheerfully send out work about which, in private, they’re snide or dismissive.)

    So I say what you’re saying, Dean, and I agree in theory… But all my observation and experience in the real world tells me that the theory rarely works in practice.

    Meanwhile, one of the surprises I’ve had as an unagented writer is that my response times improved rather than gotten longer (and this has been true not only since I quit the author-agent business model, it also turned out to be true during my brief self-representation period between my third and fourth agents). To clarify: With their one or two best buddies, all my agents could get VERY fast responses; 2 days to 2 weeks. Apart from those specific relationships, though, my agented proposals waited 1-7 months for a response from editors (and, come to think of it, I made various option submissions via agents that waited LONGER than that for a response). Whereas, between my third and fourth agents, and since quitting agents altogether, my response times have so far been about 3-7 weeks.

    This isn’t the expectation other writers have of an unrepresented writer. I also think that the reasons people assume for this (when telling me why being unagented may work for me, but it won’t work for someone else) are quite erroneous: the assumption is that my UNagented response times, to date, have something to do with me being well-connected, or known, or commercially hot, or whatever. (The short version is: I assure you, that is NOT an accurate reflection of my career at the time I quit the author-agent business model. And it’s probably not an accurate reflection even now, though things are certainly much better now than they were then.)

    -I- think (and this is just my opinion; we’d probably have to poll a bunch of editors to get anything remotely more factual) the reason I get good response times is that I put together a much better query package than any of my agents did. I invest a lot of effort in this (and it always seemed to me my agents invested far too little), and I write much better cover letters than they did (because I’m a much better writer than agents are). I think -presentation- is why my UNagented packages so far float to the top of the submission pile faster than my agented ones did.

    I could be wrong. But that’s my theory for now, anyhow.

  19. Er, I MEANT “lame job,” NOT “male job.”

  20. Oh, P.S. Actually, I think another reason for my so far improved response times is that I may well be choosing editors better.

    Despite more arguments (and stress) about this than I have energy to recall or recount during the years I worked with agents, my experience was that agents preferred to submit to their pals and to editors whom they knew, to whom they’re sold previously, with they’d had relationships, etc. And that they, meanwhile, were VERY RESISTANT to my suggestions about editors for the most part–including editors who had said to -me-, “I love your work. I’ve love to get your under contract. Please send me something.”

    I by contrast choose editors first and foremost on the basis (GO FIGURE) of editors who’ve said to me, “I love your work. I’d love to get you under contract. Please send me something.” (And this has worked out very, very well for me.) I also choose editors on the basis of: Who has a great reputation among writers I know, who’s acquiring stuff similar to my project, who has said they’re looking for something like my project, who I’ve enjoyed working with before and would like to work with again, etc. IOW… my choices are tailored to myself as a writer and to my work… Whereas it always struck me as a consistent problem that my agent’s submission choices seemed to be based on who THEY had relationships with. While that’s often cited as an ATTRACTION of working with an agent, it doesn’t work for =me= (and I have to base my career decisions on what works for -me-), it was consitently problematic and unproductive for -me-, and on the only occasion I can remember where that submission strategy actually resulted in a sale… it led to what was hands-down the worst editorial relationship of my life and, indeed, the worst professional relationship of my life, and a period so depressing and stressful that my mother eventually because to fear I had neurological damage (I didn’t; it was just the stress). But the editor was, you know, the agent’s friend. (sigh)

    Anyhow, I do think that probably another factor in my response times is that, IMO, I target editors for my work better than agents did.

  21. That list sounds great, Laura, and powerful. Realistic? That I don’t really know.

    If you go check out Writer’s Digest (OK, not really useful information there, but most novice writers Don’t Know That), or I’d say about 99% of the “how to write and get published” books out there in print, you read a few things:

    – You may not ‘need’ an agent to get published, but it’s almost impossible without one.
    – You should submit your book to agents. With a lot of luck and a good book, you might get one.

    That stanza has novice authors desperate to get agents, frustrated and often giving up when they can’t, and pretty much willing to give the agent whatever they ask for if they do get one willing to take them. After having it hammered into their skulls that they Need An Agent and that Agents Are Selective and You’re Lucky To Get One, most folks at least out of the gate are not going to be willing to push for clauses that might make the agent walk.

    As long as agents are still able to act as keybearers to a career, they have a lot of power in negotiation with an author. In most cases, it seems more like the author asking “what do I have to do/give?” rather than asking the agent “what can you do for me?” Unfortunate, but for now…

  22. Oh, and incidentally… Symbiosis includes all forms of close relationships between living things; there are three main forms – mutualism (beneficial to both), commensalism (beneficial to one without hurting the other) and parasitism (beneficial to one at the expense of the other). All three are symbiotic relationships, however.

    It’s sounding here like agent-author relationships are indeed a form of symbiosis…although often not of the mutualistic variety. ;)

  23. Joe Cron says:

    Dean, Laura, whomever… a question: at several instances throughout the Sacred Cows posts and comments, it has been mentioned that certain circumstances might warrant conducting an audit of a publisher’s books. With agents, on the other hand, discussions have mentioned investigations, even criminal charges, etc., but not audits per se. Does anyone ever have their agent audited?

    • dwsmith says:

      You know, Joe, now that you mention it, I have never heard of one. C.E or Laura might know of some cases, but I haven’t heard. The reason is that agents are in essence a hired contractor, basically an employee. You tend to press charges or sue past employees, but seldom audit them. Also, I have never seen an agency agreement that would agree to a writer auditing the agent. In fiction publishing, the terms in contracts for audits are laid out in the contract between the two parties involved.

      Where with publishers you are in a contractual relationship of two equals, with agents you are in theory a boss hiring a contractor.

      However, on a couple of the top law suits where I was behind the scenes (C.E. might be able to speak to this in general as well), the District Attorney of New York stepped into one agents office with warrants and basically did an audit. And audits are done for civil suits between writers and agents, but that is part of the discovery of the case. Outside of a law suit, I just have never heard of it being done, even by a writer’s organization.

      Actually, writer’s organizations are deathly afraid of the top agencies for some reason. I suppose because of the myths and the organizations are usually run by want-to-be writers who buy into all the myths completely.

      Great question…

  24. heteromeles says:

    @Kevin: Absolutely agreed. Thing is, there are several different definitions of mutualism and symbiosis floating around. Yours is one of the common sets of definitions. Back in grad school, I had an hour-long lecture the topic that I used to confuse undergrads.

    I didn’t want to get pedantic about it, especially when my real point is that the ability to detect and punish cheating seems to be critical in maintaining mutually beneficial relationships.

    This is a paradoxical but important point, because many people aim instinctively for friendly relationships. Friendship is wonderful, but if your friend takes your money, you need to be able to take it back and either terminate the friendship or make it harder for your friend to take more of your money. That’s all.

  25. C.E. Petit says:

    Explicitly not saying more than this:

    Yes, there are authors who let the agent work, then fire the agent and take advantage of spin-off. They are more common than you might think… and almost always were bad fits for that agent in the first place, so one might infer that the relationship was in the process of breaking down before that initial deal. There are even agents who make a business of poaching clients from other agents with the intention of doing exactly this (I’ve got a dozen in mind without even thinking very hard).

    Further, due to those pesky NDAs, I sayeth not.

  26. Joe– great question! And you know, I never thought of that.

    Dean covered this pretty thoroughly in his response.

    SFWA’s Grievance Committee is proactive in helping authors in disputes against agents. But because so much of the agent-author relationship is NOT written down legally, and also because so many authors (my hand goes up) sign legal agreements ALLOWING the agent to be the first recipient of all the author’s money and paperwork, there’s often only so much (or even nothing) a writers org can do–apart from (as several have done on my behalf) write a firm letter to the agent exhorting more rational and professional behavior.

    • dwsmith says:

      Laura is correct about some writer’s organizations grievance committees working to help writers in disputes against their agents. But again, as Matt pointed out in his post that got an earlier discussion going, the agent wanted him to sign a legal agreement basically giving the agent long term control of the copyright of the book he sold and the money from those sales, even if the agent was not involved and had been fired years before. Writers sign these things all the time.

      Writer’s organizations it must be quick to say, have no legal standing and can only after a few stern letters tell you to hire an attorney. And many writer’s organizations are run by want-to-be writers with time to work on an organization instead of write (which is why many of them will never be writers). Remember I threatened SFWA with a copyright law suit and they settled because the organization stole my copyright. I keep thinking about joining NINC because they seem to have their feet and focus under them. (Focus meaning the organization focuses on education.) And a friend signed me up for Thriller Writers of America even though most of my thrillers are written under very secret pen names. I am just not a believer in writer’s organizations. They help out with medical of writers in bad spots, a good thing. And sometimes a stern threat from one can help in a case. But more often than not, you are better served to just get a good, and appropriate for the area of publishing, attorney to help you out.

  27. “They are more common than you might think… and almost always were bad fits for that agent in the first place, so one might infer that the relationship was in the process of breaking down before that initial deal. ”

    Well, this is where INTERPRETATION plays a big role in such events.

    I do indeed know writers who left an agent very early in their career, sometimes even as early as between the first and second deals. However, the reasons, when they discussed it with me (in private or by email) or talked about it more publicly in my presence (ex. at the bar, on a panel, in a speech) or wrote about it (ex. e-list, article, interview, or column), they left their first (or second) agent early on for the same reasons writers leave at ANY point: The agent was incompetent and/or unprofessional and/or too hard to work with and/or non-response, etc., etc.

    As has been discussed before here, very often, a brand new writer isn’t able to get a very good agent. There are agents whose whole careers are characterized by client relationships that seldom last for more than one deal, and usually with new or first-time writers… because as soon as you start actually DOING business via these agents… you discover how bad they are at business, and you realize you need to leave. There are lost and misplaced contracts; lost and misplaced checks; editors contact writers and say things like, “I’ve emailed and phoned your agent several times this week and can’t get a reply;” your agent tells you the “17 years since the moon was last in Aquarius” option clause is “non-negotiable,” whereas you personally know two other writers whose agents got that clause changed within the past month to “”60 days after submission;” the editor loved your idea for the option book when you pitched it to her, but the agent is telling you it’s a terrible idea and decliing to submit it as your option book; or your next proposal sits around unread on the agent’s desk for five months; etc.

    So the writer leaves… and then, some agents, having deserved to lose that client, claim the writer used them and discarded them.

    Since you tell me there are actually writers who use and discard agents in a calculated way, to get the sale and then not have to pay any commission on the option deals, then I accept your assertion–and since there were NDAs involved, I assume Bad Stuff did indeed happen.

    But all of my own experience and all of my observation in the field is very much in contrast to that.

  28. P.S. Unclear phrasing on my part here: “As has been discussed before here, very often, a brand new writer isn’t able to get a very good agent. ”

    I meant, it’s very often the case that a brand new writer can’t get a good agent. (I was one of them. I wasn’t able to get an agent at ALL as a new writer.)

  29. RE writers organizations, I’m as ambivalent about these as I am about conferences. I have belonged to two (NINC and SFWA) for many years; but I think seriously each year, at renewal time, about whether I still want to belong. I used to belong to RWA (and may or may not rejoin), and I have considered joining the NWU.

    I think the networking and information are the key values of such organizations, and I regard anything else as benefit which may or may not continue to be reliable and supported by successive Boards of Directors (which turnover every year or two in these volunteer orgs). I was, for example, working with the Agent Relations Committee (I -think- that was what it was called) of RWA on problems with my third agent, and I really thought the committee was being helpful and proactive… and then one day she and I received the stunning information that the new RWA Board had actually shut down and disbanded the committee two months earlier… WITHOUT the committee’s knowledge! And so any and all activity of the committee (including assisting me with my problem) was to wrap up and cease instantly.

    Well, the bureaucratic gaff of neglecting to inform the committee it no longer existed was the sort of comically absurd thing that can happen in large orgs. And being unaware of the budgetary or policy decisions behind the decision to disband the committee, I won’t comment; maybe RWA had good reasons (ex. perhaps there were liability issues which were not sufficiently covered). I have on idea.

    But it was certainly a lesson to me that in terms of org advocacy. Yes, take advantage of what’s on offer from your writing orgs (for example, this year, I applied for and was granted assistance from the NINC Legal Fund when a publisher was violating my copyright and ignoring my attempts to contact them about this)… but don’t COUNT on your writing org’s advocacy or assistance, don’t let their involvement be your entire strategy, and don’t assume that in an organization with high turnover of volunteer staff that conditions will remain stable or that the quality/quantity of assistance you get will remain reliable.

    We also saw about 10 months ago that another challenge orgs face, in terms of advocacy, is that they’re comprised of a lot of people, not all of whom agree on policy or advocacy. When Harlequin last year announced it was opening a vanity press division, and that it would be encouraging rejectees from the slushpile to spend their money on that new division, SFWA, MWA, RWA, and NINC all publicly protested. (Other orgs may have done so, too, but these are the instances that I followed.)

    RWA took a very strong stand against Harlequin’s announcement. (I don’t remember the exact details–you can easily google it–but it was something along the lines of, they withdrew RWA recognition of Harlequin as a recognized publisher, which withdrawal had a broad variety of ramifications.) I applauded that decision. After all, RWA has got thousands of members who are aspiring romance writers–and such writers were precisely the intended victims of Harlequin’s scam. (Since that’s accusatory language and I’m publicly naming the publisher in question, please note that I am expressing my own opinion, and this should NOT be mistaken as an opinion or viewpoint endorsed by this blog or the blog owner.)

    But advocating for writers is never that simple. =Within= RWA this was very controversial. It’s not as if there was a unified voice saying, “Yay! Demand legitimate business practices from the largest publisher in this genre! Condemn them for preying on aspiring writers with a costly con!”
    Yes, there was indeed some of that. But there was also a TON of discord and controversy. For example, while some Harlequin writers completely supported RWA’s position, other ssaid, “Er, hang on… you’ve essentially just declared that, within RWA, I’m no longer considered a published professional… even though I’ve made a dozen advance-paying, royalty-paying publishing deals with this house. How does your stand against this vanity scam, which has nothing to do with me or my career at Harlequin, make ANY sense in terms of MY position?” There were a fair number of aspiring-writer members of RWA completely taken in by Harlequin’s specious promo-copy about the vanity program, who considered the vanity scheme an “opportunity” and condemned RWA for trying to destroy their dreams and intefere with their chance to be, er, “published,” too.

    And that’s a not-at-all-unusual example of the sort of internal disputes and disagreements that occur in most orgs over most advocacy decisions, especially when it involves the org taking an official policy stand (rather than one committee member or one special fund helping one member who applies for help in a specific situation).

  30. C.E. Petit says:

    Our Gracious Host has hit a nerve. Accidentally, I’m sure, but I’m feeling like Arlo Guthrie in the psychiatrist’s office at Whitehall Street, jumpin’ up and down on the table screaming “Kill! Kill! Kill!” Our Gracious Host said:
    “The reason is that agents are in essence a hired contractor, basically an employee. You tend to press charges or sue past employees, but seldom audit them. Also, I have never seen an agency agreement that would agree to a writer auditing the agent.”

    No. An agent is not a mere employee, contrary to how inept litigation over the issue in New York courts — too often pro se (without a lawyer), or through a family attorney, by the author — has tended to treat the issue. An agent is a fiduciary (and, for that matter, an “agent,” not “employee,” but that distinction is for another time).

    By definition, a fiduciary is subject to audits, regardless of any contractual silence or even prohibition. A fiduciary also has explicit legal obligations to rapidly and accurately account for every penny owed to the fiduciary’s principal. In fact, under New York law’s “unfaithful servant” doctrine (which has equivalents in most states, and would be an equitable consideration in others), the moment a fiduciary so seriously breaches this requirement that the fiduciary is no longer a faithful servant to the principal — such as by favoring one co-author over another, or failing to render statements, or failing to inquire of the publisher when on notice of discrepancies — the agent may be divested of the right to compensation from that moment thereafter. Not must; it is at the option of the court.

    Yes, there are real matters behind this particular rant… behind the seal of privilege and further underneath other confidentiality provisions. Unfortunately, two of them involved one of those agencies that operates on the vulture model that I referred to previously.

    • dwsmith says:

      Oh, C.E., of course I know all of that. And I honestly do understand the fiduciary nature of an agent, and have been behind the scenes in a number of law suites against agents where that was the major point. And the writers always won.

      But legal in this instance and reality are so far separated in this instance as to be laughable. Writers hire and sign up these agents without a thought to any of this. And they sign those agency agreements as I ranted about in one chapter without a thought (thankfully Matt gave it a thought in his case and didn’t sign). You work in the trenches, down where reality meets the road in the legal system. I am up here on the surface trying to explain to writers who think that getting an agent is a top thing in their career the truth of the working nature between writers and agents. Laura and I both have tried to shout to writers that there are options, often far better options.

      So no disagreement with me at all. I’m just trying to put things in words that writers can understand is all. Most beginning writers when told that their agent has a fiduciary job to do under the law would look at me with a blank stare and have when I have tried that approach in workshops. So instead I tell a writer to treat an agent like an employee and darned near everyone understands that. Not 100% legally correct, granted, but closer to the truth than a writer thinking that the agent runs everything they do and should be in charge.

  31. In a related vein, I was interested to hear from a friend recently that a number of writers we know are lately pondering whether an agent’s services are indeed worth 15% of their income.

    The changes in the industry and the general malaise of the economy have combined to ensure that print runs and sales are down, which also mean that for many writers, advance levels and royalty earnings are down. And I gather that the agent’s sizeable bite out of writers’ reduced incomes is starting to look like a big enough expense that some people are starting to wonder, “Am I getting services that are worth as much money as I’m paying for them?”

    Or, indeed, with so many professional writers having been dumped by their agents, or having left because they couldn’t get the agent to send out their work or answer their emails, etc… I gather some are starting to wonder whether it’s a fiscally sound decision to commit to paying 15% of their future income to another agent.

  32. Steve Perry says:

    Devil’s Advocate here …

    I just have to point out that the logical aspect of because-somebody-has-access-to-your-money-they-can-swipe-it is true. But, then so does your spouse, at least in some cases.

    You keep a sharp eye on Kris, Dean … ?

    The nature of trust is tricky, but we all trust perfect strangers with our lives every time we get into our automobiles and go for a ride. At any moment, some loon could cross the centerline and smack head on into you. Run the cold red light and T-bone your car; mow you down in the crosswalk.

    You trust the bus driver, the train engineer, the airline pilot, and your life is worth more than however many foreign rights your agent might kype.

    Yep, you can be a defensive driver/walker — though not a defensive passenger, unless you are helping your spouse drive, and we all know how that goes — but you can’t crank it up and toodle down the road with any serious attention that every car you see is about to go psycho on you — that way lies madness. Or at least staying home all the time. And then you have to worry about those crazy airplane pilots and the meteorites and all …

    I’m not saying you should close your eyes and open your wallet to passersby; however, there has got to be some level of trust in any business transaction or business will never get done. If you start out by saying to a potential agent, “Listen, don’t take it personally, but I don’t trust you.” I’m guessing that well’s water is going to have a urine flavor to it …

    Just sayin’ …

    • dwsmith says:

      You make a good point Steve. (Especially about Kris…kidding…Kris….I’m kidding….Kris….)

      But Steve you are right in trust, and with an agent in the right way, you still put a ton of trust in them, as Laura said, in so many other ways besides money. I’m just saying to take that element out of the picture is all. Not tell your agent to not trust them.

      In other words, when climbing in a car with another driver, I’m telling you to buckle up inside the car, not sit on the roof. Right now, with agents, writers are sitting on the roof and then wondering why they so often slip off into the ditch.

  33. heteromeles says:

    Steve,

    You might not be able to drive that way, but it’s certainly doable.

    The trick, in defensive driving, is to evaluate where the threats can come from and work out in advance what you can do if it happens. Or, simply, if something comes at your car with enough time for you to react, which way are you going to turn? It’s certainly not going to work in all cases, but it’s a lot better than chattering away on your cell phone while driving at 70 mph in heavy traffic.

    This actually applies to agents, I think. The two relevant points are:
    –You can’t get the risk to 0, no matter what you do.
    –Nonetheless, it’s a *good idea* in any career to reduce the risk by learning what is likely to go wrong, and taking reasonable measures against them.

    For example, as a beginning writer, if I negotiated my own contract, I would probably screw myself worse than an agent would screw me. Not that I really want an agent, but the point is that I’m still a tyro, and if my manuscript sold tomorrow, I’d be emailing Dean and Kris to beg for agent or IP lawyer referrals.

    As part of my training as a writer, I’m reading Dean’s essays assiduously, reading the books he, Laura, and Kris recommend, and working to learn the business as well as the art. I’ve got a long way to go on both.

  34. Joe Cron says:

    Thanks, guys, for all the great discussion following my question.

    So, I looked up “fiduciary,” having seen the term before but not ever knowing what it is. Yes, it clearly reflects the writer/agent relationship, but I was intrigued by one sentence in the Wikipedia article about it: “The word itself comes originally from the Latin ‘fides,’ meaning faith, and ‘fiducia,’ trust.” Ah, if only the agent scenario could be characterized by faith and trust.

  35. I think Dean phrased that very well. Travel in a proper seat in the agent’s car with your seatbelt on, not clinging to the exterior of the vehicle. There are many underdeveloped nations where riding a vehicle by clinging to its exterior is a common, daily practice–and injury and mortality rates for this practice are MUCH, MUCH higher than they are for people sitting -inside- vehicles with seatbelts on. So it’s a good analogy.

    Marriage is NOT a good analogy, in the sense that it’s an intimate personal relationship -as well as- a social contract. You share a home with your spouse, love your spouse, know your spouse extremely well, socialize regularly with your spouse, see your spouse in-person on a daily basis, have a sexual relationship with your spouse, and may well become parents with your spouse. Of all relatioships in society, that’s one that obviously SHOULD be heavily based on trust.

    Compared to, for example, There does indeed have to be -some- trust in a business relationship, such as an agent-author association. (ex. The author needs to trust the agent to do what he says he’ll do, or else there’s no point in being in that association.) But marriage is NOT an apt analogy for a business relationship with a scant acquaintance (i.e. an agent) who lives hundreds (or thousands) of miles away from you, whom you seldom (if ever) meet face-to-face, about whose life you know extremely little (and, by and large, only what this person himself tells you).

    HOWEVER… as it happens… marriage is an analogy often used in the biz to describe the agent-author association, and this exemplifies the way that relationship is misperceived and mishandled throughout the business. The idea that each of 30, or 50, or 70 clients “should” have or ideally -does- have a relationship as tailored, specific, and TRUST-based with a scant acquaintance in a business association as people have with their spouses. Which has a lot to do with the emotional and irrational perception (which I shared for years, since it was–and is–the industry norm) that there’s something WRONG with or INSULTING about a writer who, for example, DOESN’T WANT her agent to receive HER 85% of the money and all her paperwork on her behalf.

  36. BTW, worth noting how MUCH LESS trust is expected or involved in my relationship with my literary lawyer.

    1. There is MUCH MORE transparency with my lawyer than there was with my agents. I’m copied on all correspondence, I see every phase of negotiations and follow-up, I’m consulted on every phase, and all phone calls are reported to me.

    2. There is also MUCH, MUCH more transparency in terms of my being able to understand exactly what services I’m paying for and why $XXX is the sum I’m paying her this month. I get a breakdown in every bill of exactly how her time has been used on my behalf.

    3. Her role in my business is MUCH more specific, defined, and limited, and -I- define the scope of her involvement. That is, she’s involved in my business when I request her involvement; apart from that, she’s not remotely involved (and has no other claim or perceived/implied/supposed rights on me, my income, or my work apart from the).

    4. Although, as in any business association, I need to trust that her advice and her work is worth paying for, or else there’s no point in my continuing to deal with her… With an agent, trust in an agent’s assigned WIDE-ranging areas of expertise is based on experience and reputation; whereas with a lawyer, trust in the lawyer’s assigned narrow and specific range of expertise is based on experiece, reputation, AND formal specialized training AND licensing.

    • dwsmith says:

      Laura, thank you for those four points. And because of those four points exactly I will be using IP Lawyers when I need one. I don’t see that happening much these days, but that is now my first option, where just a year or so ago my first option would have been to call one of my top agent friends. (Of course after these blogs, not so sure if they think of me as a friend anymore. (grin))

      I went back and counted and I have to go back twelve books since I had an agent involved. I’ve dealt with more books on my own, doing my own contracts and everything in the last few years than most writers write in entire careers. Now that’s a scary thought.

    • dwsmith says:

      And Steve, I think your point is again well made and a point that writers should look at. You can’t go into an agreement with a fiction agent by saying you don’t trust them. But you can go in acting as a smart business person who doesn’t want to have someone else handling all their money and paperwork before they do. There is a difference there, but would come down to how it is handled.

      My issue, and clearly Laura’s, and many other writers these days from Koontz to King on down is that the agents have lost our trust. And they have lost it in so many ways, not just by theft, which happens and still happening to friends of mine but I am loathe to mention it to them because of their feelings for their agent. But the loss of trust has come in so many ways, many of which Laura detailed out. For example, a friend of mine right now has a top New York editor who wants to see an entire manuscript that was sent in partial form by the agent. But the agent doesn’t think the book is right, so won’t send it, even though the editor WANTS it. What is the friend to do? If the friend goes around the agent, the editor will bail, but the agent has an ego involved and wants the writer to rewrite a fine novel to some personal taste of the agent.

      This sort of thing happens all the time. The writer is so angry as to punch walls. Trust lost, and the relationship between the author as person hiring the contractor has been broken by the contractor. Only one minor example of what is so wrong right now with this system.

      So, Steve, I’m going to add one more detail in the idea of riding with an agent strapped into the seat instead of hanging onto the roof. Make sure when you get in the car, the door has a handle on it.

  37. Oh, and here’s another area where much LESS trust is involved in dealing with my lawyer than dealing with agents: additional or conflicting relationships.

    In an instance where there’s a conflict of interest, an attorney’s ethics require them to decline to handle the matter for a client (or to cease handling the matter). There are no formal or standard guidelines, however, for what an agent is to when confronted by a conflict of interest.

    Moreover, it’s very common for agents, when asked about this, to claim that conflicts of interets don’t arise, or that matters which others are specifically SAYING is a conflict of interest is, in fact, NOT. Here are some really obvious examples:

    Off the top of my head, and I’m acquainted with at least two well-known agents (there are probably more, but these immediately come to mind because I have friends who are/were clients of these agents) who are now, in addition to agenting, writing and selling their OWN novels in the same genres (and at the same houses) where they represent clients. One of these agents, I know, has vehemently denied to a departing client that there is any possible conflict of interest in this situation. Whereas I would say this is a situation so clearly RIFE with conflict of interest, it’s almost impossible to figure out how to address such a specious claim.

    There is also a full-time staff editor at a major house who is -also- a literary agent in the same genre, handling foreign subrights for several clients (whose US-rights agents don’t deal in subrights, evidently). An editor I know was FLABBERGASTED upon learning this, absolutely stunned that this editor/agent couldn’t see that a clear conflict of interest was being exercised here in being both an acquiring editor in book length fiction -and- a literary agent.

    Most recently, of course, there’s the question which has arisen in the press of whether agent Andrew Wiley is exercising a conflict of interest by becoming the e-publisher of the clients of his own literary agency.

    I don’t have to trust to my lawyer’s integrity in CLEARLY murky, questionable, conflict-laden business circumstances… because lawyers risk losing their license to practice if violating ethical boundaries. So (unless you’re dealing with a charlatan), they take care NOT to do the sort of things I’ve just listed reputable, accepted, legitimate agents as currently doing.

    The chances that my lawyer is going to be negotiating on my behalf with, er, HERSELF in her dual capacity as my e-publisher, or the chances that she’ll be negotiating on my behalf with an editor while ALSO negotiating a contract on her OWN behalf for her OWN novel with that SAME editor… are roughly on a par with the chances that my lawyer will grow second head. The ethics of her profession clearly require her to say to me, “I can’t handle this negotiation for you, I have a conflict of interest here,” and–rather than my having to rely on her being a Good Person–I know that she’d have to be willing to risk be de-barred in order to ignore that conflict and negotiate my deal in such circumstances (i.e. never mind needing to rely on her good heart and sterling character, neither of which I’ve had any occasions to veriufy in our long-distance business relationship; I just need to rely on her not being a gibbering idiot who wants to detroy her career and be kicked out of her profession for the sake of negotiating one deal for me at her standard hourly rate).

    And, as we’ve already talked about before here, too… My lawyer’s relationship in a negotiation is strictly with -me-; she’s not simultaneously cultivating a relationship with the person we’re negotiating with. If legal disgreements or problems arise between me and the house, my lawyer’s clear ethical position is to advocate solely on my behalf, not to develop or maintain a relationship with the house during this dispute, and not to take their interests into account AS WELL AS MINE.

    Whereas a literary DOES usually have a relationship to protect during an author’s dispute with a house (and many an author has found the agent therefore not as proactive on their behalf as might be hoped; while agents meanwhile universally and steadfastly claim this NEVER happens), and an agent usually DOES have a relationship with an editor to cultivate or protect or enhance during contract negotiations, etc. So, for example, with regard to one house I delat with, one of my former agents had a very strong, close, busy, lucrative relationship with that house… and the upshot was that all of my problems with that house, dealings with that house, and dealings with that agent viz that house were perpetually dominated by the agent’s clear and obvious priority (though vehemently denied) in these matters being to protect and enhance the agent-publisher relationship rather than to serve the paying client. Business with that house was worth a LOT more to that agent, in terms of income and career enhancement, than -I- was; so–precisely because of the way agenting works–it would have taken a much more ethically remarkable individual than that agent was to put my interests ahead of the interests of the agent-publisher relationship when addressing my problems and business viz that house.

    All of which are examples of why trust is so much less NEEDED in working with a literary lawyer than in being the client of a literary agent. And since these are all long-distance business associations with scant acquaintances, I find I MUCH prefer dealing with a lawyer to dealing with agents, precisely because I think TRUST is a foolish primary basis for a business relationship with someone I scarcely know.

    • dwsmith says:

      Laura said, “I find I MUCH prefer dealing with a lawyer to dealing with agents, precisely because I think TRUST is a foolish primary basis for a business relationship with someone I scarcely know.”

      Yup, spot on. I also agree that trust is a foolish primary basis for a business relationship with a stranger.

  38. C.E. Petit says:

    I cringed when I saw that someone went to a dictionary to try to understand fiduciary duty. Not even “specialist legal dictionaries” (like Black‘s) get it right; there’s a plethora of reasons that three to five full class sessions in the required legal ethics course at all American law schools are devoted to “lawyer as a fiduciary,” and even that barely scratches the surface. Fiduciary duty is an extremely nuanced concept that distinguishes among “loyalty to the principal’s best interests, whatever they may be and even if inconsistent with express directives,” “loyalty to the principal’s stated interests,” and “loyalty to the principal’s financial and business interests.” And that’s just the starting point.

    I have less trust in attorney ethics than do many, because I think the legal ethics rules are much too loose (plus, I know way too many lawyers ;-) ). In my first career, we had a much tougher rule, and it’s the one that I still follow:

    The appearance of a conflict of interest is a conflict of interest until it is cleared by a competent investigation by a disinterested party, and may not be waived if that investigation discloses a live conflict that might impair an officer’s mission execution or judgment.

    Lawyers don’t even come close to that (for one thing, lawyers are allowed to stop working if the client’s bill is “too far” in arrears, which is a big fat hairy conflict of interest in itself)… but the legal ethics rules are still a lot better than the fiduciary duty rules that bind agents, if only because they’re actual rules and not merely marginal prohibitions.

    There’s an old rule in dealing with military allies: Trust, but verify. At least with lawyers, one has an obligatory way to get that verification; with agents, verification is strictly voluntary. And that, in the end, is one of the most significant differences between a mere fiduciary duty and a lawyer’s duty: The fiduciary is only required to act, not explain thought processes or educate or anticipate undelineated needs.

  39. R. L. Copple says:

    I would agree. Trust is essential to any relationship, but as pointed out, the closer the relationship, the more trust can play a part in the foundation of that relationship, like marriage.

    For instance, if I go get my car worked on, I’m trusting the mechanic a lot. He can come and say, “This dohickey isn’t working, and will cost $900.00 to replace it.” Now, at that point I can go get a second opinion, but if I trust that mechanic’s opinion, I’ll more than likely, if I want to keep the car, agree to pay for the repair. When the real problem could very well be a bad spark plug wire for all I know. But that’s the level of trust. When that trust has been violated, whether in reality or perceived, I’ll go find a different mechanic.

    But the current author/agent/publisher model sounds more to me like walking into the car shop and saying, “Something’s wrong with my car. Here’s a signed, blank check. Figure out what’s wrong, fix it, and let me know when I can come pick it up.”

    Now, that’s total trust. But I can bet if I did that consistently, I’d be much more likely to lose a lot of money on either unnecessary repairs, or even repairs that never happened or were needed. Remove that opportunity, however, and there simply isn’t that temptation. That’s what I hear Dean saying, and I can’t see any reason why an honest and reputable agent wouldn’t want to do that.

    I do accounting for a living, and my bosses both in the past and currently place a lot of trust in me. By the nature of the job, they have to, even on the first day I go to work for them. I often get a key to the place, and the key/combination to the safe, and access to online bank accounts within a week if not the first day of starting to work for someone.

    But that’s because the business has no choice if they want me to do my job. Yet, they place all sorts of checks and balances to help insure that I’m not going to easily rob them blind, making it harder to embezzle, and much more likely I’d get caught if I tried it. So it removes that opportunity. And even though I know I’m an honest bookkeeper, and would never consider doing that, I appreciate those checks and balances because I know it puts the boss’s mind at rest that I’m not likely to do that with those levels of accountability in place.

    But with the current agent/author/publisher model, it would be the equivalent to the boss saying, “You can be the sole signatory on the account, manage the business, get performance bonuses, etc., as long as you send me my portion of the profits.” Then the boss never checks on the business or me, the accountant, again. Trusting that I’m doing what we agreed to.

    And I worked for a bookstore owner who had that happen to him. He was foolish enough to hire a manager, who also did the bookkeeping, and his contract provided him a bonus on profits to the bookstore. You can see this coming, can’t you? The owner thought the bookstore was turning a profit, because the P&L said it was. The manager got bonuses. It was only after he left (when I came on board, and he knew someone else would be looking at the statements) that we discovered he hadn’t not only not turned a profit that year, but actually lost around $30K. He also balanced the check book with massive hundred dollar plugs into equity…money we never did figure out where it went…but we can guess it well enough went into his pocket.

    This is called a conflict of interest, when someone makes money based on reported sales, and has “control” of those reports, whether they be financial statements or royalty statements which is in control of the agent’s possession before the author ever gets to look at them, if they get to look at them. Anytime you have that situation, no matter the business relationship, it is bad, bad, bad. For both parties, really. Which is why honest agents should welcome not having that conflict of interest inherent in managing an author’s statements and money, which they are making money off of.

    At a minimum the author should get the statements straight from the publisher to verify the money they should be getting from the agent. And ideally, their portion of the money straight from the publisher as well. As Dean has said before, in any other business, you’d be seen as foolish and stupid for agreeing to such a deal.

  40. “I cringed when I saw that someone went to a dictionary to try to understand fiduciary duty. ”

    You see your insidious effect on us, Charlie?

  41. C. E. Petit: I also went to a dictionary to find out what a fiduciary is. Since most people reading this are not lawyers, do you have any suggestions for learning what you have insisted is the role of an agent, and how it differs from an employee?

    • dwsmith says:

      Kaitlyn,

      And your question is exactly on point from a different angle. 90% of all modern agents don’t know what the term is either. And don’t understand they do have some basic rules of fiduciary that they must follow. They don’t have a clue because as I have shouted a bunch of times before, there are no “agent” schools or any organization that requires an agent to take any classes or anything to even begin to understand what they need to do under fiduciary rules and regulations of the state. And because they don’t know and are not trained in any way, the agents just do what they want with your money. Sure, when push comes to lawsuit, their attorney soon tells them differently, but alas, most of the problems with agents DO NOT go to suit in any way, and often the ones that do are covered over with nondisclosure agreements to save the agent’s reputation.

      It’s fine for C.E. to tell us how things SHOULD work legally, and for all of us to understand even how the term fiduciary applies in this business. But understanding is far, far, far removed from the normal practices of this business at this point in history. The practices of agents and how writers deal with agents is so far skewed off of any normal or practical business practice as to be funny (if not so tragic). And how far from legal these practices of agents are is anyone’s guess.

      • dwsmith says:

        And here is a challenge. Those of you with agents who are trusting them, ask them to describe to you their fiduciary requirements. Ask them if you and your money are treated exactly the same as their top bestseller’s career. Oh, and ask them how your money is treated when it arrives at the agent’s office. Does it go into an agency account or a client’s account? Are the agency rent checks taken out of the same account as your money? And what is the name of their bookkeeper or the head of their accounting department. Or does the agent do it all. Does the agent even see your money at any time at all.

        As C.E. will point out, that’s so basic as to be laughable and not completely accurate but should at least get you a sense of how much your agent knows and if trouble is brewing on the money side. (Again,working on the surface here, C.E., not teaching a legal class. (grin))

        The response from your agent might just scare you.

  42. Steve Perry says:

    Well, long as I am defending the Devil here …

    This trust-but-verify stuff is cool, but most of us don’t do it in our daily lives, so making the one place we do with an agent seems odd.

    You trust the guy serving your dinner not to have poisoned it. When’s the last time you ran a poison scan on your linguini?

    Sure, he doesn’t have any motive, unless you’ve been in before and are a lousy tipper. Or he’s a psycho. How would you know?

    You do know why medicine bottles and Catsup and all are sealed, right?

    Defensive driving is well and good — I’ve been doing it for years — but you can’t cover all those bases, so there is an implicit trust there. There will be times when you won’t have any place to go if somebody crosses into your lane.

    Marriage is not a good analogy? Really? How many marriages end in divorce — some of them really ugly? You think that naked picture of you won’t wind up on the internet if you kick your spouse out?

    We all stand on shifting sand as the tide comes in, and there ain’t no guarantees we’ll keep our footing. I agree with the notion that you should Pay Attention! in all aspect of your life, but while you don’t lose if you never take a risk, you can’t win if you never take a risk, either.

    Dean is a poker player. He know this. Sometimes, you just gamble.

    Some agents are crooked. So are some cops, judges, doctors, and lawyers, and that’s just the way of it. Some are honest. If you start out assuming they aren’t? Where do you go from there?

    Dean’s experiences and Laura’s are valid, and that they are sharing them here is a good thing, and useful for folks who don’t have those years in the field. But they aren’t the only path up the mountain, and now and again, there will be folks who take another road and get there just fine.

    I’ve had my own troubles with agents, and most of what Dean offers makes sense. But he doesn’t care for The Elements of Style, and I think it’s the best how-to book out there.

    I think he’s wrong. And if he’s wrong about that … ?

    It’s what makes a horse race …

    • dwsmith says:

      LOL, Steve. But I know I am not wrong about the Elements of Style. Even the author, E.B. White agrees with me. (grin)

      Besides a bank, which is heavily regulated and should be regulated even more, where do you give all your money to a person besides an agent and all the paperwork with it to show how much money is there?

      Sure, sometimes you have to just go for it, actually gamble a little. But as a poker player, I never bet unless I think I have the best hand. Sometimes I am right, sometimes I get drawn out on, but I am always in control. It’s why I never put any money in a slot machine, ever, unless I am goofing around with someone on vacation. When I do that I know the money is gone the same as paying for a movie ticket. Entertainment. I play poker for money and have played for a living off-and-on over the years. I write for a living. There are enough variances in publishing without taking a stupid slot-machine-like bet by letting a stranger have all my money and all my paperwork for that money. ESPECIALLY when there is no reason for it.

      Again, I am not saying a writer should not use an agent if they want to. Fine by me, but for heaven’s sake, take the gamble out of it, take the opportunity away from the agent to rob you or do what some have done to Laura and just give money and reports. Use an agent, trust an agent with the writing and marketing and contract negotiations. But for heaven’s sake, why trust them with the money as well. There is no reason to since it is so easy for a publisher to just split payments and duplicate paperwork. Why defend a practice that has no justification and just causes problems??? That’s what is confusing me.

      And if it is just because “that’s the way it is done” then I rest my case. But if there is a valid reason, any reason, for an agent to get all the money first, I would like to hear a reasoned argument for it. But so far I have heard none except “oh we should just trust them.” Nope, I’ll trust them fine with helping me with my career and with marketing advice and helping on negotiations and talking with editors and sales. But when it comes to getting all my money first, the trust ends. There is no reason for this practice and I have yet to hear one from anyone.

  43. Toni Lendich says:

    Now that I have successfully wasted (*) an entire morning reading this, with delight, I might add, I have a question. When you say:

    “In all fiction contracts, including overseas, without exception, split payments with your agent. Your agent can get his share and a copy of the paperwork. You get your share and a copy of the paperwork. ”

    … can you be a little more specific about the split, please? I assume you mean directly from the publisher? How often does that happen? How can you make it happen?

    Not that it’s a problem for me yet as I am still trying to (a) get published, and/or (b) find an agent, a British one for preference, as my books are unlikely to appeal to an American readership. I have exhausted the possiblities of finding an Australian agent and few publishers here will accept direct submissions.

    * PS “Wasted” means time not devoted to writing.

    • dwsmith says:

      Toni,

      Splitting payments happens in contracts. In a publishing contract at the moment, you sign it and in the contract you tell the publisher to send all the money and all the paperwork with that money to your agent of record in the contract. It is just as simple in the instructions to tell the publisher to send 85% of the money and a copy of all the paperwork directly to your address with your SS# on the account and 15% of the money and a copy of the paperwork to the agent with the agent’s tax number on it. Since you are signing the contract, you can put this in easily. Agent gets their money and the paperwork to see how your book is doing and you get your money and the same paperwork.

      As we have detailed out here, so many problems arise when everything goes to the agent. And we haven’t even talked about the old tax issue. When the publisher sends the agent all the money under the agent’s tax number, it is considered income to the agency. Yup, your full money is income to the agency. Then they send you a 1099 form sometimes for the full amount, sometimes for the amount after their fee, depending on the agency practice. That means you are considered an employee of the agency, not the other way around. And so far I have not heard of a tax case on the legality of all this mess. You see, when you sign a contract with a publisher, that is your earned income off of your work, not the agents. Yet the income for writing the book is credited for tax purposes to the agent and never to you. Ugly mess there I would love to see a tax case on someday.

      So how often does it happen? At times. How easy is it? Fantastically easy if you have that agreement with your agent when you hire the person. Might get ugly if you surprise them with it at signing time. But to be honest, they never have to know. You just switch out the agency paragraph with your own split payment clause in agreement with the publisher. The agent does not sign on the contract remember. Just you and the publisher.

      However, that said, if you have one of the super agencies, where the publisher is more afraid of the agent than of you, then you might lose that fight. And if the publisher, the company that wants to buy your book is more afraid of an agency than you and won’t split payments, that means your best interests are not in play from either the agent or the publisher and you might want to save yourself a lot of pain and just walk away. But I can’t imagine that happening to be honest if you act clearly and have talked with your agent about this ahead of time.

      • dwsmith says:

        Toni, remember if you use an IP lawyer, you pay the lawyer for their time, then ALL the money comes to you directly from the publisher. From a person who hasn’t used an agent now in the last dozen books or so, I like having the full amount come to me. For some many years I would look at a $20,000 contract and know I was only getting $17,000. And I had sold the book myself and all the agent had done was make one or two phone calls and then get all the money and I often had to fight to get the money and/or paperwork out of the agency. Trust me, having all the money just come directly to me is heaven. Pure and simple heaven.

        Hey, Steve, you ought to try it some time. (grin)

  44. Joe Cron says:

    So, trust is necessary in our daily lives. Fine, trust as necessary, or when it helps you. Sometimes, even in business, showing trust is a smart good-faith gesture. But in business, it’s usually smarter to verify. The basic issue, and the reason I know Dean always feels like he’s screaming into a gale wind, comes back to creative types so often feeling uncomfortable or helpless thinking of their creativity as a business. It happens with all creative disciplines – actors, musicians, whatever. They just want to focus on the creativity and be taken care of with the rest.
    As we’ve seen with famous actors or musicians, even having a family member in that role doesn’t always mean you can trust them. There is no substitute for taking charge of your own business career. Think about it – if you not only produce the product, but can function as the marketing and accounting departments as well, you are a self-contained success machine. Write creatively, run your business intelligently. Can’t lose!

  45. Steve Perry says:

    White’s opinion?

    Since when is a writer the best judge of his or her own work … ?

  46. Dean,

    I’m curious if you saw the article in Sports Illustrated entitled “Confessions of an agent” about 20 year NFL agent Josh Luchs:

    http://sportsillustrated.cnn.com/2010/magazine/10/12/agent/

    I know sports agency and literary agency are different animals, but I imagine that there are a few parallels. Luchs describes some pretty dodgy business practices, and basically says they are industry standards. I’m curious what you make of his allegations (when I read the phrase “I had breached my fiduciary duty” I immediately thought of this thread). Do you think sports agency and literary agency have much in common?

    • dwsmith says:

      Oh, wow, Andrew, not a clue. But let me read the article when I get this workshop done and I’ll see if I can see some comparisons. Thanks for sending it.

  47. Thomas Pluck says:

    I never got a kill fee for “We’re All Guys Here”… but I doubt I asked for it. I sold it elsewhere, and this article alone is worth more than that fee plus any compound interest.
    Thank you for writing this series, Dean.

    • dwsmith says:

      Thomas, glad you did resell that story. And yes, now that you mention it, I did have writers ask for kill fees if they wanted them. And now that I think about it, only about half did ask, which I remember at the time was very helpful in clearing off other debts. Thanks!!

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