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Monday, January 30, 2012

Agent Contracts: A Disturbing Turn

I had planned a different post today, but this was too important not to share. For those looking for an agent, or those who've recently been offered representation, PLEASE read that contract thoroughly.

Theresa from Editorrent has two posts about a rumor (subsequently confirmed) that at least two agencies are inserting into their contracts a clause that takes a standard commission on an author's SELF-PUBLISHED books.

I could barely believe it so I had to read it twice.

The theory Theresa proposes (and I agree with) is that since the agent is building the author's career, he is entitled to a cut of the author's other revenue streams from books.

These agents are counting on the desperate, or the person who doesn't read their contract carefully to sign on the dotted line. Either way, it's bad news. It also calls attention to the fact that agents are also desperate. Revenue from traditional publishing is drying up for them and they're frantic to hang on to their careers no matter what that takes.

Please, please, please. I know some of you would give your eye teeth for a chance at representation, but be careful what you wish for. This is such a crock I can't believe any agent would have the temerity to include it in their contracts.

Read Theresa's posts here and here.

Whatever you decide, be careful out there. If there are two agencies pulling this crap, you can bet they're not the only ones.

Tomorrow: Today might have been a crock of offal, but tomorrow we go right to the bladder. Pig's bladder. Stop by and visit with Krista D. Ball when she talks about preserving food (and other things) the old timey way.

Please chime in. What do you think it means for the industry when agents start to expect compensation for work they didn't sell, or agents who start their own self-publishing companies? Are we looking at the beginning of the end or something more complex?


Renee Miller said...

I don't think it's the beginning of the end for writers. I wasn't surprised to read this at all. Is that sad? Yeah, probably. As you said, agents are trying to hang onto their careers, by whatever means necesary.

What really bothers me is that while agents and writers struggle to adapt to the changing industry, publishers still don't seem to get it. They're publishing non-talents and celebrities. No agent, and no "real" writers necessary.

I share your concern too about the desperate writers not reading contracts carefully. I see much shit arising out of this development.

Maria Zannini said...

Renee: Sometimes I just want to shake the starry-eyed writer. I don't want to see anybody get hurt, but some people never learn unless they learn the hard way.

Renee Miller said...

Me too. But I agree with you 100%. I learned the hard way and believe me, I've been extremely careful since. I think what frustrates me more is the ones that don't learn despite the knocks. They just keep getting scammed.

Rula Sinara said...

Wow, thanks for posting this Maria. I checked the links but want to go back and read more carefully. The changes in the industry are trickling down into places we might not even think about. Thanks for being on the lookout!

Jennifer Shirk said...

Very interesting. I know my friend got an agent AFTER she self-pubbed and her book was selling. I wonder what's in HER contract?

Angelina Rain said...

The publishing world is changing, and I think agents are the first ones to go.

Back in the day, the author was just the author. Publishers were unreachable so authors needed that middleman to reach the publisher.

Now because of e-publishing and self publishing, authors are no longer JUST authors. Now we are our own agents, marketing managers, many authors also become editors, cover artists, even publishers. Now, because authors wear many hats, they don't have to share their royalties with the agents and ect.

I've noticed several traditional publishers are now accepting unagented works.

Maria Zannini said...

Renee: You can't cure pig-headedness.

Rula: I was shocked. Still am. But Editorrent has always been a reliable and trustworthy site. They know the business.

Jennifer: I have a friend who sent her agent contract to a lawyer and struck clauses I didn't even realize they had. There's no telling what's in today's contracts.

Angelina: It has changed so fast, and as Renee pointed out in the first comment, the publishers just don't seem to get it. It's like they're living on a different cloud.

K.T. Hanna said...

I think I'm the only one who doesn't have a problem with it.

Don't get me wrong - I find it horrible that the clauses were inserted without the author's knowledge. However, some agents are changing the way they work, have been for a long time now. And they've been vocal about it. They will help you promote and get your book out there even if you are self publishing.

For me? If I choose to self-publish? Someone to help me with the truckload of work that pops up to promote the book and give it a chance would be a godsend. I have friends who've self published and their promotion workload seems so big, they never get a chance to write, even though they don't work.

Me? I have a full time job. If an agent wants their 15% in exchange for assisting me in promotional activity, big site reviews and blog hops that appeal to readers as opposed to mostly writers? They can have it.

I don't agree with it being done underhandedly - but I have no problem with the honest concept.

Maria Zannini said...

KT: Unfortunately, agents don't promote you. They are supposed to sell for you.

That's why it's a problem. This goes against the AAR tenets. I'm interested to see how the AAR will respond to this.

If they want to get into PR, that's another career entirely and is usually handled on a flat rate.

K.T. Hanna said...

That's really odd, because there are now several agencies I've seen list three different rate descriptions. Once of them is to assist the author with all promotional activities should the author choose to self publish (prefer to self publish).

I wouldn't think they'd deliberately go against the AAR. Buuuuuut ;) that remains to be seen lol

Clarissa Draper said...

I haven't heard of that but it's scary to think someone would misuse an author like that. I do read my contracts very carefully and let my husband read it as well. I will haggle on my contract if necessary. Thanks for this post.

Melissa McClone said...

Interesting. I've wondered how things works if you had an agent and self-pubbed. I'm going to check out those links.

Krista D. Ball said...

If it's the two agents I *think* they are, they've always taken a percentage of all revenue from the authors. It's just they are they now being clear about the self-publishing, since their authors were thinking it was excluded.

I have nothing against agents. I've been lucky enough to enjoy some freedom in my career without needing one. However, I might need an agent one day and I'm ok with that (one of these days I might even start looking for one...).

BUT (and there it is)

BUT authors need to stop being some friggin' desperate and signing everything just to get an agent. People, an agent really doesn't mean anything. I've seen people get more excited over someone getting an agent than someone getting A BOOK DEAL. People - a book deal is far more exciting than an agent.

(and for the bulk of the people I've seen get agents, nothing ever comes of it)

Read your contracts. Think about what's in them. Take 3 days after reading. Ponder. Ask questions. Ask one of the directors or executives at work their opinion. Think more.

When I go through a contract, I highlight the parts I'm cool with, the parts I don't understand, parts I'm not sure what I think, and the no way parts. Then, I sit on it for a day, ponder those more, and then ask opinions of people I trust. Then, I make a counter offer.

Sometimes, it's as simple as "can you change 90 days to 45 days." Sometimes, it's "change this or I won't sign."

Authors need to stop being starry eyed when they read these contracts.

Dee said...

Oh, wow, I think that's awful! Just goes to prove you should READ IT CAREFULLY! Every single clause, even if the contract is pages and pages long. These things are usually negotiable. You can strike clauses before signing, and there's a good chance the agent will agree. If not, then you don't want him/her.

And if you don't want to read every clause, then spend the money to get an attorney to do it. It's worth it to protect yourself.

Maria Zannini said...

KT: A wolf in sheep's clothing is still a wolf. The agencies that are 'helping' promote their authors know about as much about promotion as the check out lady at the grocery store. Promotion and selling are two different animals.

Clarissa: I have two friends who are veterans with contracts who help me vet out each of my contracts. If I don't understand something, I ask the publisher until I get an answer I do understand.

Melissa: I think this asking for self-pubbed royalties is a new phenomenon. If you've been with your agent for a while there's probably no concern.

Krista: Amen. I have spent days going back and forth with publishers until we hash out our differences.

Dee: Yup. It's tedious, annoying work, but that's part of being an author.

Mike Keyton said...

Everything's been said, but I'm just wondering whether there is any kind of parallel between this and Estate Agents over here. If you sell a house through them but in the process find your own buyer, they will expect the percentage of the sale price previously agreed on for work put in. If however you take your house off the market for a bit and then find your own buyer, they don't make such a claim. Presumably if you left the agency and then self published, the agency wouldn't then be able to claim a percentage - or does the clause you sign extend to everything in perpetuity whether you're with them or not?

Raelyn Barclay said...

Wow. The more I learn, read, and think about the whole publishing process the more I want to stick to self-publishing. Whether I succeed or fail, it's all me. Thanks for the heads up Maria!

And Krista...eww. LOL. Though I'm sure it will be fascinating!

Angela Brown said...

I've noticed some agents who, after a bit of difficulty getting books picked up by the Big 6, encourage their clients to self-pub. I've seen agents mentioning they are branching their agencies into a boutique style to assist with self-publishing. This contract business is just another reason for an aspiring writer to be much more careful and less desperate. Also makes self-publishing sans agent that much more appealing so as to avoid some nonsense like this.

Maria Zannini said...

Mike: It's kind of the same here. If you signed a contract, it doesn't matter who did the work, you still owe them money. But I wouldn't it put it past those agencies to put that into their clauses. Heck, you probably just gave them the idea. :)

Raelyn: Publishing is a mess, that's for sure. I miss the old days if only for the stability. But with upheaval comes chaos and all the piranhas trying to nibble away at the author.

Angela: That makes me wonder now if they encouraged their authors to self-pub with the intent of taking a piece of their profits.

I wouldn't mind if they at least had some experience in promotion, but they don't. Their skill is hawking manuscripts to publishers.

L.G.Smith said...

I can't say I'm surprised to hear this. Things are changing quickly. More and more authors are seeing that they can self-publish and do just as well for themselves as they did with a small publisher -- only they get to keep more of the royalties. A smart agent would naturally try and take advantage of any future moves toward self-publishing. A smart writer would maybe push back and say no. :)

Maria Zannini said...

Ref: A smart writer would maybe push back and say no.

And there's the rub. :) Authors are so giddy at receiving the offer, they don't understand what they're giving up in return.

I turned down two agents. At the time, I had doubts I did the right thing. Now, I'm happy it was the right decision.

Krista D. Ball said...

Raelyn - I promise it will be enlightening. Or fun. Or slimy. Maybe all three.

Maria Zannini said...

Krista/Raelyn: I vote for all three. :)

ajkulig said...

I am not suprised by this AT ALL. What I want to know is, is it retroactive?

Maria Zannini said...

Angela: A contract is a contract. They can't claim something that happened before they burst onto the scene. At least I hope to heaven no one is foolish enough to put that in writing.

But who knows.

KarenG said...

I think what we're seeing is the end of agents as unofficial slush pile editors for big publishing companies, and the beginning of agents taking on the role of "agent who manages your career and makes you a better, more marketable writer regardless of what publishing path you choose, therefore I'm entitled to a cut." It does not surprise me at all, and it also won't surprise me when writers start bragging about being with such and such an agent who is now "managing my career." ie, taking a cut of all work regardless. Yep, I can see this very clearly.

Madeleine Maddocks said...

Oh dear that does sound rather disappointing, sad and desperate. Thanks for the shout out letting us all beware.

Sarah Ahiers said...

WTF? That's crazy. I really wish i knew which agencies these were, just so i could stay away. Because it would hurt to get an offer, then have to decline because of shady conract junk.
Though it would be a dodged bullet, i'd just rather avoid it all together

Lynda R Young said...

Interesting. Just goes to show that reading the contract in full and understanding it is so important.

Maria Zannini said...

KarenG: I'm all for them changing careers, but this business of taking a percentage is horse dung. They're used to taking a percentage so they want to keep doing that. In a way they're just as bad as trad publishing, holding on to the threads of the past.

Madeleine: Hi Madeleine. Nice to see you out and about. :)

Sarah: Things like this don't stay secret for long. I expect we'll start hearing about them through the grapevine.

Lynda: That's good advice for all legal documents.

Jenny Schwartz said...

Weird. I remember Uncle Jim from Absolute Write (and so many other generous authors sharing their experience) shouting "Money flows to the author". This doesn't sound like that.

Barbara Ann Wright said...

I think it's one more sneaky clause to look out for. A good reminder never to think of a business arrangement as a friendship. A partnership, sure, but a business one, always.

Maria Zannini said...

Jenny: I'm sorry for the agents, but what they're doing is not ethical.

Now it seems Kristen Nelson had gotten into the act, offering to be the middleman for self-publishers.

Mark my words. Agents are going to start convincing authors that they have the 'connections' to get them marketed.

Why are people so blind? The only connections they have are editors. Editors don't promote authors any more than agents.

I guess I shouldn't care, but I hate to see people waste money that could be used to take care of their families.

Barbara: Exactly. It's business and it sounds like agents are doing a fine job of blowing smoke.