Dear agents

In the last 24 hours, I have heard not one, not two, not three, but five separate tales of woe about agents attempting to wrest certain concessions from authors. I’m not going to go into the details; those are private.

So this is an open letter to agents who are thinking that they need to get authors to sign away as much as possible, RIGHT NOW.

I know some of you are worried about how you will make money in the future. It shows, because some of you are claiming you have rights to things that you really shouldn’t have rights to. Others of you are setting up business models that, frankly, suck for authors.

How do you think your author is going to feel when they discover that you’ve screwed them over? Are they going to want to do business with you in the future when you try for massive land grabs?

Who do you think is going to win? Every commercially viable author has a lot of choice as to who her agent is. I know that some of you believe that you are in demand, and you are–but an author who is commercially viable is also in demand. There are not enough commercially viable authors to go around to all the agents who are in business today. You know it. We know it, too. We have choices.

If you are so focused on getting the maximum number of dollars out of an author today, you are going to lose tomorrow, because nobody will want to work with you. If your business model actively harms an author’s best interest, you won’t be her agent tomorrow.

Here’s the reason you make money today as an agent: Because you zealously represent your clients’ interests, and because she knows she will make more money working with you than she would working on her own. See that? It’s perfectly obvious: If your business model doesn’t make the author more money than she could make on her own, you don’t have a business. The worse your terms are for the author, the faster you will not have a business.

So think twice before you screw your authors. It might make you a few bucks today, but it isn’t going to last. If you want a business in the future, the question you need to ask yourself is: “How can I make my author money?” The question you shouldn’t be asking yourself is: “How can I make money off my author?”

12 thoughts on “Dear agents

  1. That sounds pretty scary for a new author like me. I hesitate to even try to find an agent in the first place. I do have a question. Does an author who intends to self-publish her work actually need an agent? Please explain.

  2. Kitty,

    Talk to other authors. That’s how we find out when agents are pulling some screwed up stuff–by talking to each other and asking, “Does your agent do this?” and comparing notes. When someone doesn’t measure up, we find out. Research the agent. E-mail authors. Look at her deals on Publishers Marketplace, and then look at the authors she has sold who are now with other agents. Talk to those people and find out why the relationship went south.

    If you’re just self-publishing, do you need an agent? Well, of course you don’t! Obviously, you can self-publish without an agent. If you are successful at it, you may want an agent–for negotiating foreign deals, for instance, or getting you traditional deals, or selling subsidiary and/or nonexclusive rights.

  3. Thanks for all of these wonderful posts on your journey to start your own “publishing house”. I loved Unlocked and look forward to your forthcoming books.

    My question regarding relating to what these agents are doing in setting up their own publishers is “wehre are their lawyers” or are they even getting legal advice. In Canada (and the U.K.), the basic common-law principles regarding the fiduciary duties of agents (among which include the obligation for the agent to obtain the best possible outcome for the principle and to not self-deal because of the inherent conflict of interest this creates) have been well-established for centuries. We still quibble about some of the finer points of who owes a fiduciary obligation and when an agency relationship is created (and in Canada, at least, this seems to be an ever expanding category). Are these principles not as settled in U.S. law? If these principles apply, then I would think that the lawyers for these agents (assuming that they are even being consulted) must be tearing their hair out at the potential lawsuits that their clients are opening themselves up for.

    Once again, thanks for all of these great posts, I find them fascinating.

  4. Lynn,

    In the US, agency law is state law (meaning that it varies from state to state), and so even if the principles are fixed, they’re not entirely fixed, if you know what I mean.

    That being said, although I haven’t done a 50-state survey of agency law, you’re right–this is both a conflict of interest and self-dealing and as far as I can tell, that’s flat not allowed. This stuff is utterly crazy.

  5. Thanks Courtney (I won’t get into anymore “law talk” here), but I am pretty sure that some creative litigators are eying rhese agencies with interest :-). I’m surprised that the professional associations such as RWA and Author’s Guild haven’t come forward to oppose or advise against the agencies that are doing this.

  6. If I recall correctly, RWA recently (this March?) said that it will not recognize agents and allow them to take pitches at conference when they engage in self-dealing.

    RWA’s policies and procedures manual says:

    17. 2 Industry Professionals shall not represent both buyer and seller in the same transaction.

    This is not as clear a prohibition on self-dealing as I would like, but I do think it prohibits agencies from becoming publishers.

    Right now, the problem is that the information about which agents are engaged in self-dealing is not obvious: authors are not telling RWA when their agents start self-dealing, and so the provisions aren’t enforced. I think we need to educate members about the problems with this.

  7. There are also a lot of fairly high-powered agents who are re-publishing their authors’ backlists (e.g., Steve Axelrod) and big agencies that have started quasi-independent digital publishing ventures (Waxman has one, I believe, and possibly Wiley). Even though I think this represents a clear conflict of interest and is really problematic, I’m not sure how RWA is going to come down on these agents/agencies because, frankly, they do a lot of big deals with major publishers despite their subsidiary publishing ventures, and I think it’s tricky to decide at what point those ventures are actually taking advantage of authors vs. simply providing a service the author WANTS. As I said in my post on my blog today, taking on all the aspects of self-publishing your book, even if it’s a backlist title, is no mean feat, at least not if you want to do it RIGHT. I can see why some authors, particularly those with active contracts to fulfill, might prefer to subcontract that job to their agents, who are likely to be people whose judgment they respect and whose ethics they inherently trust.

    I’m completely with you in feeling this is deeply muddy water and I personally would not sign with an agent/agency that had started its own publishing venture. But would I LEAVE the agent I’ve worked with for years and trust because SHE started one? That I’m not so sure of. I feel like I’m savvy enough not to be manipulated into making bad choices and smart enough to avoid contract terms that are not in my best interests. On the other hand, if I can’t always be sure that what my agent recommends is, in fact, in my best interests as she sees them, then there’s definitely a problem.

    Yeah, I don’t like this part of the brave new world of publishing. Not one little bit.

  8. Jackie and Courtney: When I made my comments above about RWA et al., I was thinking about agencies like Axelrod and Wiley – somehow I can’t see RWA saying that they can’t accept pitches at conferences. Do you know how the business arrangement is working between agencies like Axelrod et al. with respect to author’s backlists? Are the authors paying fees for the agent’s services or are the agents getting a percentage on the titles? From my perspective, I think that it’s still self-dealing on the part of agents, particularly if they are getting a percentage. Are the agents actually shopping the backlist titles around like they are supposed to do? Are they providing full disclosure to their principles about all of the alternatives out there? Are they actively discouraging their principles from going the self-publishing route? Whether it’s backlist or frontlist, I just see so much for potential for the agent to breach his/her duty in these types of arrangments or to be accused of breaching his/her duty (and the inevitable lawsuits that will follow) that I would think that a court would take an even dimmer view of an agent who breaches his/her duty to a long establsihed client simply because there is a higher level of interdependance between the principal and agent. Do U.S. courts impose exemplary or punative damages in breach of fiduciary duty cases? it makes me wonder why agents want to expose themselves to this risk.

  9. I think it’s a very interesting question about what, if anything, RWA will do with Axelrod, who last I looked, represented J.R. Ward, Susan Elizabeth Phillips, and Suzanne Brockmann, among others, all of whom have significant sales in both their initial hardcover runs and traditional paperback (I’m assuming their e-sales are up there as well).

    I always assumed (dangerous, I know) that agents like Axelrod generally get a percentage of their authors’ sales. Is that incorrect?

  10. I always assumed (dangerous, I know) that agents like Axelrod generally get a percentage of their authors’ sales. Is that incorrect?

    Hard to know, since the authors who have entered into these arrangements with their agents haven’t, to my knowledge, been forthcoming about the terms. And honestly, since these deals are between them and their agents, I’m not sure they should feel any particular obligation to divulge the details or explain the reason they entered into them.

    I’d like to think agents in these deals are taking flat fees, but I doubt it. I’d like even more to believe that AT LEAST they are not taking more than 15% (although, even then, I think 15% verges on abusive because of WHERE the 15% is coming from). My impression, however, judging from the information that’s been announced publicly by the agencies that have formally opened their own digital presses, is that they are taking a great deal more than 15%, but likely less than a traditional or digital-only publisher would.

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