Home » Agents, Contracts, Passive Guy » Agent Fun and Stupidity

Agent Fun and Stupidity

6 March 2012

From author Dean Wesley Smith:

An agent the other day did a tweet that has to be right up there with the stupidest thing I have ever heard come out of an agent’s mouth, and I’ve heard some pretty damn stupid stuff over the years.  Quoting:

Terrie Wolf ‏ @AKA_Terrie
Authors, listen up. Unless you’ve passed the bar – don’t argue contract law with agents/editors. We get it. Promise. #pubtips

Now, if you believe that, and sadly, many writers do (because of the many myths I have gone over here in the last two years), you deserve what you get, because it won’t be much and it will be a very short career. And if you really, really believe what the agent was saying, I have some great land and a great bridge to sell you. Cheap. Great deal. Honest. Trust me.

. . . .

Folks, if you must have an agent these days, then for heaven’s sake, please, please, please get an IP attorney to look at the contract before you sign it. The agent can do the negotiations and all, but spend the few extra hundred to get someone on your side completely. (Agents work more for publishers these days than you.) And get the attorney to help you understand exactly what you are signing.

DO NOT TRUST AN AGENT TO DO SO. They are not lawyers. They actually have no legal right to give you legal advice in many ways.

Link to the rest at Dean Wesley Smith

For those of you who haven’t seen a typical publishing contract, one of the arcane habits publishers follow is to have people sign contracts that are marked up from the original – strike-outs and additions are shown.

In the reality-based contract world, this sort of thing went out of style 25 years ago or so, about the time red-lining software followed by built-in word processor red-lining functionality came into wide use among lawyers who deal with contracts. (Red-lining refers to what used to happen when legal secretaries or lowly associates went through a printed contract and indicated deletions and additions.) In Word 2010, this function is called Compare and you’ll find it under the Review tab.

In contracts PG has negotiated with organizations ranging from Disney to Apple to Morgan Stanley and hundreds of others, after the first negotiating session, one side sends the other a red-lined version of the original contract showing changes that have been agreed to and proposed language for open issues.

After a few rounds of document exchanges like this, a final, clean contract is signed. If it’s a revised version of a standard contract of one of the parties, the as-signed document is electronically compared to the form document and both the signed and red-lined documents are put into a file somewhere. If a question arises about the contract, you pull out whichever version will allow you to answer the question more quickly.

One of the reasons for using clean copies is that the redlines can become pretty cumbersome and it’s easy to make a mistake while reading through one of those beasts. PG can easily point to publishing contracts where the redlines in paragraph 3 conflicted with standard language in paragraph 15.

Sorry for the digression. One of the results of  the quaint contract habits of publishers is that any agented author can show Passive Guy a copy of the as-signed publishing contract and PG can see exactly what the agent changed . . . and what the agent missed.

Let PG assure you that agents are vigilant to make sure every author receives more free books than the publisher offers in the contract. “15 free hardbacks? Never! It’s got to be 30 or we walk!”

Let PG assure you that agents are non-vigilant on other items. Which items? Out-of-Print clauses that mean your book will never go out of print even if you haven’t received a cent in royalties in years or Warranty clauses that mean you cannot, during the remainder of your life, publish or self-publish a book in the same genre as the one the contract covers without the consent of your publisher. PG could go on at length about many others, but won’t.

Undoubtedly some agent somewhere knows something about contract law and how to protect his/her client from serious problems in contemporary publishing contracts, but PG hasn’t seen evidence of that in any agented contract he has reviewed.

Perhaps the agent discussed an obvious contract trap with the author before the author signed, but the author decided to go ahead despite the agent’s warning. PG asks about those discussions or warnings. Nada.

Dean mentions agents engaging in the unauthorized practice of law and PG agrees they are if they are negotiating contract terms and changes for their clients. PG won’t get into an argument about whether the unauthorized practice of law statues are out of date (they probably are), but when a lawyer provides bum legal advice or screws up a contract, the lawyer is liable for damages arising from those mistakes. When a non-lawyer provides bum legal advice or screws up a contract, the rules should be the same.

PG doesn’t know if New York courts overlook this odd local unauthorized practice of law or not, but a suit for damages for negligent representation and the unauthorized practice of law can probably be brought in many different states where an author may live.

Typical agency contracts include a choice-of-law clause designating New York as the place where disputes will be litigated, but tort actions are hard to corral with a choice-of-law clause. If a California court sees a credible claim that a New York agent was negligent in advising a California author about a publishing contract and such negligence damaged the author and is continuing to restrict the author’s ability to pursue her trade or profession, there’s a pretty good chance the agent will be defending a tort lawsuit in California.

Although he doesn’t litigate any more, when he did, PG was usually inclined to sue everybody who had damaged his client and might have the ability to provide compensation.

These days, if he were suing on behalf of an author to break an unfair publishing agreement (and for fraudulent underpayment of royalties because you’ll always find that), PG might well join an agent and agency who negligently advised the author to sign the contract in the first place as defendants.

There’s the old saying that if you throw enough . . . stuff up against the wall, some of it will stick. That sometimes works in litigation too.

The ironic thing is this type of liability would be a dead simple thing for agents to avoid, but they would have to inform their clients that the agent did not provide legal advice and clients should obtain advice from a lawyer (gasp!) if they had legal questions about the contract. Agents don’t like that idea because it might slow down the deal if a lawyer focused on more than how many hardbacks the author will receive. Better that the agent provide all the legal advice.

Agents, Contracts, Passive Guy

45 Comments to “Agent Fun and Stupidity”

  1. A look at Terrie Wolf’s public LinkedIdn profile shows not a shred of legal expertise.

    http://www.linkedin.com/in/terriewolf

    • It’s also a very strange sort of profile, Abel.

      With all the various colleges/universities she lists, I wonder if she’s counting conferences and seminars instead of degree programs. She mentions “University of Cambridge,” but everybody I know lists the college from which they graduated in a written description, e.g. “King’s College, Cambridge”

      • Yeah, when you see a ton of listings, odds are they’re just seminars and programs. Real degrees take time, and the people wise enough to get them don’t bother to tout anything but the top ones.

        That is, btw, the “Cool New Thing” in middle-management these days — to take seminars and put them on your resume as degrees.

    • She did have two years as a Clerk in the 17th Judicial District, which may or may not have been a legal role.

      Also, she doesn’t actually state what qualifications she gained (if any) through her education – like an associate degree, a Bachelor degree or a Masters.

      She also claims to have a “Queen’s Service Award (UK)”. A quick Google search shows that award is made to voluntary organisations, not individuals. Also, it was only instituted in 2002, and her LinkedIn profile shows her working exclusively in the USA since then.

      You might also notice that after a bunch of basic admin-type jobs, her first experience as a literary agent was working for Wolf Literary Services – which probably means she was either self-employed or working for her family.

      I too am a legal non-expert with no background in publishing, and no high-level awards for voluntary service to the community. If anyone would like to pay me 15% to act as their agent… they’d be a fool. (But then, you remember the saying about fools and their money…)

      • I’m skeptical that her work as a court clerk had any transferable legal skills attached to it.

        Even if she were permitted to provide counseling to people who came into the office, it was probably about how to file a small claims case or a pro se divorce.

  2. I wondered if you would comment on this: I thought it was the most incredibly condescending thing I could think an agent could say. Not to mention it implies collusion between agents and publishers.

    • Part of the message is, “Just shut up and keep your hands folded in your lap.”

  3. Worse, I HAVE passed the bar and even I know that when it comes to contract negotiations with a publisher, I’ll be at a severe disadvantage without an expert IP attorney. I might understand all the words, and I might be able to guess what those words might mean for the future and which clauses contradict each other, but I have no idea what is standard, what has already been litigated, and which clauses should be there… but aren’t.

    Hopefully my agent will be able to help with that, but you’re right–most of them aren’t licensed to give me legal advice. Bother.

    Is PG available for hire? :) (Not that I need him yet.)

  4. PG. one of the most eyepopping aspects of that tweet is that Terrie Wolfe seems to implying that the publisher’s negotiator (the editor) is on the reader’s side of the negotiation table.

    The editor isn’t on your team, the editor’s on the publisher’s team. They may be perfectly swell sweethearts during the pre-game show, but they’re paid to score points for the opposing team during the actual game.

    That Wolfe either doesn’t recognize it or want you to recognize that inconvient truth speaks volumes about the actual worth of her tweeted advice. In fact, Wolfe (in essence) jerseys up the agent and the editor onto the same team!

    And that team, dear writer, is NOT your team!

    How many points do you think you’ll score if your linebacker’s taking signals from the opposing team’s coach?

    • Agreed, Lee.

      As indicated in a lot of my posts on agents, an agent has a much greater vested interest in maintaining good relations with the handful of editors he/she deals with than with virtually any individual author. An agent can get along without a particular author, but the same can’t be said for a key editor.

    • Plus, you know, EDITORS KNOW NOTHING ABOUT LAW!! I’ve been an editor, I’ve worked with editors, and absolutely none of them, myself very much included, had any legal expertise! Editors send you the contract their bosses tell them to send you, and that’s it! Sometimes they don’t think the contracts are actually fair and would rather send out better contracts, but it’s not like they have the power to alter them!

      • You mean holding those contracts in your hand didn’t convey legal expertise to you, Mary? :)

        • Honestly, because writers deal with editors, they tend to have a very exaggerated notion of the power editors have. Expecting the editor to have control over your contract terms is like expecting the bag boy to have control over how much you pay for your groceries.

  5. Dean Smith knows what he is talking about. He and Kris have been in the business for decades. They’re the pros.

    I’m excited that I am going to meet them this April as they will be guest speakers at the Superstars Writing Seminar! I’m looking forward to picking their brains for the weekend! =o)

    • I think that will be one writers conference that’s well worth your time and money, Melissa.

  6. BTW, I noticed that her reaction to the reaction to her tweet is to pretend she said something different than she did. She claims she was “just saying that everybody has to follow the rules.”

    Hunh? How does “don’t argue contract law with agents/editors” equate to “follow the rules”? Unless she’s saying that the rule is to shut up and let the big people do the business and don’t bother your pretty little head?

    And the “Unless you have passed the bar” certainly implies that only people who have passed the bar should be talking about that contract, and if that is so…. she’s claiming that agents and editors are equivalently qualified to someone who has passed the bar.

  7. I saw her comment last week and can’t get this out of my head. I’ve passed a bar. Doesn’t mean I know a single useable or practical thing about contract law. Her comment is silly on several levels.

  8. I see no evidence of experience in publishing, let alone the law, with either her or her staff. She has four clients, three NF and one children’s book author- that book is ebook only and three of the books are published via small press. This should be a Writer Beware agency.

  9. Let me fix that advice:

    Don’t argue contract law with agents/editors, get a lawyer to do it for you!

  10. My guess is that this is an indication that writers are getting more antsy about contract terms are becoming less likely to accept “that’s just the way it is” as an answer. If so, that’s a good sign that the current disruption is seeping down and actually empowering writers to question and argue for more fairness in contract deals. It certainly does make agents/editors/publishers jobs more difficult when they no longer have a free hand to force whatever self serving terms they want into a deal.

    • I agree, Dan. This tweet is merely a canary in a coalmine. One could assume that if she took the time to publicly voice such an opinion, that more and more writers out there are seeking out actual trained, accredited professionals for career advice. And by that, I mean not agents.

      • Or, for that matter, just that her own clients are questioning her judgment in the negotiating process. And she’s getting tired of them getting in the way of her sucking up to editors.

        After all, who pays her fee!? Oh, wait….

  11. What value does this agent bring for her 15% share of your money?

  12. I think this comment probably takes the cake when it comes to treating authors like children. The total condescension in the statement is sort of shocking. No, I don’t trust people whose best interests don’t typically align with mine to present me with a contract that is to my benefit. I expect them to create one that is to their best interests; which is why I hire an attorney to read over contracts before I sign them and to tell me which clauses/language to change.

    In what other industry do people act this way? I’m trying to imagine my mortgage broker telling me not to worry my pretty little head about things like interest rates or monthly payments and to just sign on the dotted line (because it would be the best offer/contract I could possibly get) and he knew better than me.

  13. Nice.

    I’ve started to ignore any “advice” agents give when it belittles writers and praises the industry. All it usually means is the agent is having a bad day and wants to make herself look/feel better. Lame.

  14. In the entertainment world the talent (writers, directors, producers, actors) ALWAYS have lawyers review their contracts. The agents negotiate the deal terms, the lawyers negotiate the contract terms. That’s how it should be in publishing too.

    While there are a few literary agents out there who are better than most with respect to the boiler plate and minutiae, that’s not a substitute for an experienced IP attorney. I’m an entertainment attorney, not an IP attorney (yes, there’s a difference), and I definitely read my contracts much more carefully than any of my agents–and spotted issues they missed. At the end of the day you still may have to agree to provisions you don’t like in order to close the deal, but you should at least understand what it is you’re giving up so you can make an informed decision about the deal. Rely on agents at your peril.

  15. Honestly, I think that #pubtips hash tag is so abused. It’s like a hash tag for agents to be snarky and/or condescending about mistakes people made. It was probably originally meant to be helpful, but it’s deteriorated into venting. There are a number of agents I would have been very interested in before, but after I see their unprofessional tweets (there and elsewhere), I have lost respect.

    I work at a marketing agency, and I don’t tweet things about clients (prospective, current or past). That would just be stupid.

  16. [...] last post about agents by Dean Wesley Smith with links worth following and the separate comment of Passive Guy on the matter – if you want to hear the lawyer’s POV, of course… What I like [...]

  17. I’m aware of at least one agent who claims the legal expertise as an attorney to protect clients when it comes to contracts.

    What should be the first question I’d ask an agent who claims this?

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