So my agent announced the other day that she has started to provide self-publishing services for her authors, and, as I’ve been relatively outspoken in this area, people have asked me to comment.
I think I’ve made my feelings fairly clear. I believe that agents who publish clients are engaged in an unethical conflict of interest. I also think that agents have always provided clients with services, and that an agent can ethically provide services to a client. The salient difference between the two is that an agent who takes rights is publishing, and an agent who facilitates self-publishing is providing publishing services.
Kristin says in her post that she talked to her clients. I can’t speak for the substance of her conversation with other clients, but she and I had a very long conversation, both about what I did to perfect the work that I published to the level that I did, and about the models that she proposed. I cannot tell you the number of times we went back and forth, both on her models and on the contract–I lost count somewhere around seven or eight. I can tell you that every time I expressed a concern and said, “This looks like a problem,” she came up with a solution. I think I am personally responsible for adding about four pages to her DLP contract to make sure we were spelling out termination, various rights and responsibilities and obligations, and so forth in a way that made sense for an author. (And that’s only a tiny little bit of a joke.)
I can tell you that when I expressed concern about a way that her contract might allow authors to take advantage of her, she told me–more than once–and I paraphrase–“That’s a risk I take. I’m not going to bind my authors to do something that they don’t think is in their best interest just because I’m afraid of what they’ll do.”
One of the things that Kristin is doing that I think is different (in a good way!) from anything else that I’ve seen is that she is making it possible for her authors to use her to get on venues they wouldn’t get on in any other way, without requiring them to make any commitments or representations to her regarding exclusivity in time or over venues.
I’m mostly going to let Kristin speak for herself on this, but I want to clarify my understanding of her distribution venue option. I can send Kristin a valid ePub file for one of my books with a cover and say, “Kristin, please put this up on Overdrive.”
She does so. She only puts it up on Overdrive (unless I ask her to put it up elsewhere, too). I get 85% of the take from Overdrive. She gets 15%. I don’t have to deal with getting on Overdrive myself, or fuss with making sure I get the Onix metadata formatted properly or any of the other headaches.
If I go to her a week later and say, “Kristin, take it down,” she’ll do that, too. (It might annoy her, but she’ll do it. The contract gives her some time to make it so, since no venue is going to be perfect about removing material, but that’s it.)
In the meantime, I’m posting that same file on Amazon and B&N and a number of other venues personally, and getting 100% of that income without any obligation to Kristin whatsoever.
There’s no exclusivity for the distribution venue option. It’s simply that she is representing me to vendors and helping me license works to entities where I wouldn’t be able to license it myself. In short, she is acting as an agent to get me onto venues that are either too much of a pain for me individually, or flatly not available. If I decide that I no longer want Kristin to assist me in distributing my works through Overdrive, I can walk away from it and do it some other way with no obligation.
I plan to use this to get my work more widely distributed. It will make me more money than I can make for myself. That is what agents do.
As for her other option… Right now, I’m not planning on publishing my next series through her full-service option. There are a number of reasons for that, but the biggest one is that I’m not convinced that it is the right choice for me at this time. This is not to say that it’s a bad choice for others, or that I will always make that choice. Just that it is not right for me at this time. There are circumstances when it would be right for me, though, and I recognize that where I am is not where other people are. She and I have discussed this together, and she is and has always been 100% supportive of my making the decisions that I feel are the right choice for me.
I do not think her plan is unethical, which would be a concern. I have read through her contract multiple times, and while she says in her post “we ask them to commit to a two-year term of license,” the contract itself (IIRC) does not use the term “term of license” but “term of liaison.” The difference between those two matters. It matters because if an author grants her a term of liaison, the author can pull the work from self-publication and hold it back, and so long as it is not published anywhere else for two years, Kristin has no claim. It matters because an author can choose not to have the work on a particular venue, and Kristin must respect that choice, even if it costs her money.
It matters because if an author breaches the contract and places the work for sale herself on another venue, Kristin’s only remedy is to file suit for breach of contract and ask for 15% of the amount made. She cannot file a takedown notification with the service. She has no claim or right to the material in question. This is precisely the same remedy Kristin would have if she negotiated a deal with a publisher, the client fired her, and then signed directly with that publisher. In other words, she has the claim of an agent–a contract claim–and not a claim in property.