Saturday, January 28, 2012

Just to Clarify

Many questions regarding my post yesterday. One of them is important enough to post about. Several of you asked whether this clause came from one of those agents helping an author self-publish.


These particular agents have no hand in any self-published material. They don't read and provide feedback on manuscripts, format or typeset them, or provide cover art. They don't write jacket copy or arrange blurbs. They don't upload anything, and they don't download anything, and they don't provide networking assistance.

They do nothing. It could easily come to pass that you would self-publish a work without them even seeing it or being aware of it. And yet you would owe them a commission on it. It could even come to pass that you would have This Book with them, and while they shop it, you upload That Novella as a self-published work. They fail to make the sale on This Book, and yet they are still entitled to a commission on That Novella. (One of you argued that this would never happen in the real world. Maybe not -- certainly it should not -- but the language I saw would allow this exact possibility.)

I could draw lots of analogies here to help you understand how damaging this is. Imagine you bank at Big Horrible Bank With Protesters Out Front. And every time you make a transaction at this bank, they charge you a quarter. You don't mind paying the fees because you figure they've earned them. It's fairsies. But then you open another savings account at another bank, and the Big Horrible Bank With Protesters Out Front is now claiming that you owe them a quarter on every transaction made at the new savings account, whether they ever touched the money or not. So when you find a ten dollar bill in the grass and decide to deposit it in the new bank, BHBWPOF wants a commission on that. And when your grannie writes you a birthday check from a bank other than BHBWPOF and you deposit it into your new account, you owe BHBWPOF a commission on that. And so on. "It's only fair," they say, "because by using our banking services, you learned some things about using banking services." Yes, and they were paid for it, a quarter every time you made a transaction at BHBWPOF.

Just remember what you own and what you pay for. You own your brand. You own your skills and knowledge. You might pay someone to help you improve those things, the same as a soft drink company pays ad agencies to craft memorable, brand-building commercials. But that doesn't mean your ownership is suddenly converted to co-ownership. It means you paid for a service.

One of my friends said, roughly paraphrased, "It used to be my trad pub that made my house bills and insurance payments each month. Now they can only make the house bills, but my self-published books are covering my insurance. Just barely, but they're covering it. If I have to give that up or split it, I would have to get a day job again. I can't take any more cuts to my income."

To that, many industry professionals would respond with a shrug. If this one drops out of writing, ten others are waiting in the wings to take her place.

That attitude and reality has scared authors into accepting bad terms in the past. But the difference then was that there was only one path to publication, and that path ran through the people offering the bad terms. Now there are other options. Is self-publishing the savior of everything? No. It changes some rules of the game, but we're all still playing the same basic game. Nevertheless, it's an important change because of the way it empowers writers. Don't give away that power. Don't even give away 15% of it.



green_knight said...

(verification: undaze. Topical, or what?)

On the one hand, I understand the agents' point of view. It is traditional that they had refusal on anything a writer wrote - if they didn't want to shop it around, the writer was free to sell it on their own, but as I understand it, some agents were taking money for deals they didn't broker even then. And suddenly authors decide which works they want to sell traditionally and which ones they don't, and I think it's pretty obvious that writers with traditional contracts and the visibility that brings with it *do* have an easier time self-publishing - so I understnad the feeling that the agent who brokered the big six deal ought to get _something_ for it.

This doesn't have a solution. Getting a percentage when you haven't lifted a finger isn't right, accepting retainers or other payments *also* isn't right, because it opens the door to scammers, and raising fees on the books they sell to publishers will backfire with more writers deciding that agents take too much money. (And the agent publishing the book is the worst of all options: that's a conflict of interest which must be avoided at all costs.)

If the agent gives editorial guidance and works with the writer, I think they deserve _a_ form of monetary recompense - after all, they give up their time and employ their skills, and the writer would otherwise have to pay an editor out of their own pocket.

Last but not least, I cannot imagine having a good relationship with an agent and not planning my career with them. That means I'll show them anything I am working on, and we decide together whether it's better suited to self-publishing, or whether they should offer it to publishers first.

So, no answers whatsoever, just a few more things to consider.

Edittorrent said...

I've had 7 agents of varying ability, all reputable, several connected to major agencies. Not one ever asserted any ownership of any work he/she hadn't personally sold. They all, of course, belonged to AAR and the code of ethics has always specifically prevented this, which makes me wonder what AAR is doing these days.

This is new. Really. This is an agency situation, just like a real estate agent. The one who sells your house on Maple Street (or just signs an agency agreement) is not due a commission on your house on Elm St if someone else (or you) sold it. Even if the real estate agent suggested that you have the house repainted, she still doesn't get a fee unless she sells the house. If she wants to get paid for giving advice, she's no longer an agent.

But sure, some agents are trying to get a piece of every pie. That's new, though. There have always been legal and ethical rules, and this was always against the rules. Always. I've been agented many of the last 30 years, and I can tell you, this is new. It sounds like real desperation too.

The agent who brokers a deal gets 15% of the deal. She's not due anything else. I don't know why she'd think she's owed anything for a book she didn't sell. There's no justification for that other than "I need to make my boat payment," and that's her problem, not mine.

If agents want to get a monetary reward for the "editorial guidance" they've often forced on writers as the price of representing them, then heck. I think all those writers we've helped as teachers and editors and bloggers owe us too for any future work that mi. But of course they don't. Whatever help is given, unless there's a specific agreement, is GIVEN. It's always been unethical for agents to charge for editorial work, or even to accept kickbacks for referring writers to free-lance editors.

So yeah, this is brand new. And if agents can't make a living on commission by selling books, then maybe they need to look for another job.

Yes, many questions! I think agents who are very clear about only taking money they earned by selling the writer's book will have an advantage over those who are trying to take money for work they never did.
Alicia (not a fan of the whole system, obviously)

Dela said...

Edittorent, actually, no, this isn't new at all; it's is just a new variation of a very familiar old problem in dealing with literary agents.

For example, in 2010, a literary agent sued (and LOST, thank goodness) a lawsuit against a former client, in which case the agent claimed he was owed a commission on a book the writer sold TWO YEARS AFTER FIRING the agent. The case was covered in the press. Here's a PW link:

That case was particularly important to the industry because that agent was FAR from being alone in trying to claim a right to commission on deals he hadn't handled.

For example, Writer Beware has written often about a clause which has become increase increasingly common in literary agency agreements, dubbed the interminable agency clause, the perpetual agency clause, or the interminable rights clause (somewhat related to a similar issue, the "agency coupled with an interest" clause), which is "language inserted into an author-agency agreement whereby the agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates, but for the life of copyright." So, for example, you sell Brilliant Novel for $5K in a badly-negotiated deal with your first agent. You fire the agent a year later. Two years after that, the book goes out of print and you (without the agent's involvement) get all rights reverted. Ten years later, your career takes off, and you resell that old book for $30K... and now, because of the "interminable rights" clause in that long-ago agency agreement, you have to pay 15% commission on the deal to that long-ago-fired agent (as WELL as paying 15% to whatever new agent you may have hired who actually negotiated the new deal).

I'm providing a link to a Writer Beware piece about this, but the problem of agents trying to attach themselves to works for, in effect, the life of copyright, has been going on for a number of years and has been written about by many sources:

Edittorrent said...

Dela, good info! And Thanks for reminding us that if another agent actually DOES sell the second book, having to pay the agent who did nothing means that we're paying out 30% to agents.


Missy Lyons said...

Very informative post. Thank you.