In the business world (as opposed to the publishing world), contracts normally talk about what each party will do, their responsibilities.

If the Vicinanza contract described what is implied in an agency relationship – actively work to find a publisher, help promote sales, license movie rights – the death of Mr. Vicinanza and implosion of the agency might constitute what lawyers call a failure of consideration. Failure of consideration means that one party is unable or unwilling to provide what was promised under the contract.

Dear Clients:

On May 9, 2011 the two agents employed by Ralph Vicinanza Literary Agency quit their jobs without giving any notice. As a result the agency is no longer able to accept any new business. At this time you should retain a new literary agent. We will of course promptly pay you all royalty checks as they are received from publishers. The office address and telephone number is unchanged and the office support staff is available to help you.

Please contact:
Michael Billie (e-mail: michael dot billie at vicinanzaltd dot com)
303 West 18th Street
New York, NY 10011
212-924-7090

I want to thank you for your loyalty to my brother Ralph Vicinanza. He was deeply devoted to each and every one of you. We will do our best to help you go through this period of transition.

Yours,
Louise Billie, Executor
Estate of Ralph M. Vicinanza

Here’s the link to the SFScope post – http://sfscope.com/2011/05/ralph-vicinanza-literary-agenc.html

In business-to-business contracts, it was very hard to persuade me that a contract term of more than five years was justified. Three years was much more common. Over a long term, too many things can change to cause the contract to stop providing mutual benefits and become one-sided. I think the Vicinanza situation exemplifies the ultimate in that development – no agent or agency exists any more, yet authors who want the services of an agent for their published books are financially unable to get one because they would have to pay 30% in agency fees.

That says nothing about the possibility that the Vicinanza estate might start negotiating new publishing contracts for authors at some point in the future under the terms of the existing agency agreements. Let’s take a hypothetical case if the Vicinanza agency agreement gave it rights to enter into contracts respecting Stephen King’s published books. Would an existing publisher of a collection of King books be interested in a new contract that paid a large advance in return for a 1% royalty rate for hardback and paperback books? That would benefit the Vicinanza heirs with quick cash to the possible long-term detriment of Mr. King. What about a fire sale on movie rights?

Essentially, the apparently very long terms and lack of an easy exit from the Vicinanza contracts are substantially restricting the authors’ rights to enjoy the fruits of their creativity under the copyright law.

On the other hand, I also feel copyright terms are way too long – life of the author plus 70 years in the US and similar lengths in other Western countries. This undercuts the public policy under which copyright law is established. Basically, my feeling is that an author should have a reasonable period of exclusive ownership. The pre-Mickey Mouse term of 28 years sounds reasonable to me. After that, the work goes into the public domain for the public good. A shorter copyright term would obviate some, but not all of the problems with excessively long publishing and agency terms.

Thanks for the idea.

I’ve actually downloaded one Kindle ebook where the index works as it should, i.e. it’s a proper hyperlinked index. Just think of the possibilities…

The issue of the estate keeping his 15% is made more complex by the arguments of what is “earned”. To wit, it’s fairly easy to say that an agent earns his or her 15% on a day-to-day basis for a variety of services, and that when that agent dies, those earnings should be eliminated. If this logic were to be applied to an author, the shouting could be heard from the rooftops, i.e., since an author is dead and no longer able to promote and support the work actively, his/her estate shouldn’t collect any more royalties.

I admit that I’m suggesting something here that I don’t PERSONALLY agree with, but when all of this goes to court (as it very well may), I wouldn’t be surprised to see the logic I just described argued.

Having not seen the contracts mr vicinanza had people signing this is only my guess but, could it not be argued that by explicitly directing his authors to find other representation the estate is in violation of contract? It’s one thing for the author to fire the agency. That’s covered in the contract I’m sure. But what happens if the agency doesn’t just stop returning calls but actively states they have no more interest in handling your property? Is that ever even covered in a typical agency contract? Could that be a weak point that mr. King et all could use to put this estate over a barrel in court?