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Can I Make More Money Traditional or Self-Pub?

19 November 2012

From agent Rachelle Gardner:

These days, authors are carefully considering the merits of self-publishing versus traditional publishing, and many are doing both at once.

. . . .

I’m having almost daily conversations with my clients, most of whom are already traditionally published, about various ways they can extend their brands, increase their income and/or grow their readership by self-publishing e-books “on the side.” I’m coming across some interesting questions during these discussions. One that I’ve been hearing lately comes from authors trying to figure out how they can make the most money with their next book: through traditional or self-pub. They’re trying to estimate potential e-book sales vs. potential advance from a regular publisher.

. . . .

If their agent shops the book and gets a publishing offer from a reputable house, but the advance is lower than the author wants, can the author reject the offer, take back the book, and self-publish it?

Technically, the answer is usually “yes” unless the author/agent agreement stipulates otherwise. If I shop a project, you are within your rights to reject any offers and take the project back. But it’s important to realize that it puts agents in the position of spending hours and weeks and months on something for which they’ll never be compensated.

. . . .

Agents already spend time shopping projects that won’t sell, and we’ll never get paid for that work. We understand this, and it’s a risk we take. But to have the added pressure of “Even if I DO sell it, the author might reject the sale and I still won’t get paid,” is kind of unreasonable. So in the interest of not wasting your agent’s time and avoiding purposely derailing their attempt to make a living, it’s a good idea to have some specific idea up front of what you will and won’t accept—and talk to your agent about it.

Link to the rest at Rachelle Gardner

Passive Guy will suggest that no author should ever sign an agency agreement that doesn’t give the author the absolute and unfettered right to decline any publishing contract the agent presents.

There can be plenty of reasons other than the amount of the advance that an author who wants to earn a living as a writer will not want to sign some of the “standard” publishing agreements that are these days.

Agents, Self-Publishing

49 Comments to “Can I Make More Money Traditional or Self-Pub?”

  1. It doesn’t look like the agent is specifically saying “put it in your contract that the agent has the right to agree to a deal on your behalf under the following circumstances.” It looks more like she’s saying “tell the agent up front what deals you’re going to reject.” I can see why that would be useful… except that, especially for a new author, an author may not have an opinion on the specifics of a deal until he/she sees it.

    PG is still giving good advice. Don’t sign away your rights in advance.

  2. I can understand the agent’s pov because it sucks to put in hours with no compensation. However, almost feels like this agent is trying to make the author feel guilty for that and pressured into accepting a less than acceptable deal because the agent put in all that time. Authors also put in lots of time with no guarantee of getting paid. It’s the nature of the business.

    Look at it this way, would someone take a bad deal when selling their house in order to appease the real estate agent?

    • That depends on the definition of a “bad deal.” In any event, if the agent presents a ready, willing and able buyer and the seller rejects the offer for no legally acceptable reason, it’s entirely possible that the agent may be entitled to their commission anyway.

      This is so rare in ordinary residential real estate as to be almost unheard of, but it does happen in commercial real estate from time to time. In fact, it happened to a landlord I did business with: the agency found a tenant, the tenant was ready to sign a lease, the landlord decided they didn’t want to rent to that client for no legally acceptable reason. The agent sued the landlord for their commission and won. Whether it’s ever happened in literary agency, I have no idea. But I could totally see it.

      But that leads to another interesting analogy: as is well known to lawyers and not so well known to the general public, real estate agents almost always work for the seller. If Jane Buyer goes to Reputable Real Estate, LLC, and talks to Tom Dealmaker, a Realtor(R)(TM)(X) who helps Jane find a nice house being sold by Jim Seller, Tom is representing Jim. This is true even if Jim listed the house with Sally Lister at Totally Different Real Estate, Inc. Tom wants the deal to happen, or he won’t get paid. But he wants the sale price to be as high as possible, because that will get him the biggest commission and more importantly he represents Jim and it’s in Jim’s interest to get the highest price.

      Not quite the situation in literary agency, but it really seems to me that there is a lot of conflict going on in an writer/agent/publisher deal that wouldn’t be tolerated in regulated agency applications, let alone between a lawyer and a client.

      What has happened in recent years is that some real estate agents have started to hold themselves out as buyer’s agents. The distinction is that they *do* get paid if they find an acceptable property within the buyer’s stated parameters (or else they just get paid a flat fee or by the hour.) Now we are totally off the rails and I don’t see this working in literary agency, but some analogous approach might be useful. Or, writers could stop giving away chunks of their royalties in perpetuity and just hire attorneys. As those barriers Mr. Smith talks about fall, this will make more and more sense.

      • Not sure I understand the distinction you’re making. The literary agent works for the author–their commission is based off a percentage of what the author gets, so the agent is, theoretically, trying to get the author as much as possible.

        Doesn’t that make the author the seller in that case?

        I guess the conflict comes in because there are only so many “buyers” (i.e., publishing houses) in a traditional deal, so the agent has developed a deeper professional relationship with the buyer in books than they would in real estate?

        • I think you could also argue that the agent is working for ‘the deal’ – and that they have a stronger connection with and loyalty to the handful of editors they know at publishing houses than they do their authors. I’ve seen agents neglect to push (or even lift much of a finger) on a newer author’s behalf, just so the agent didn’t jeopardize their relationship with the publishing houses…

          • That’s what I was thinking of. Thank you for clarifying it.

          • Well, OK, but the presence of unethical agents is simply confirmation that there are unethical people in a profession–it’s not proof that the profession is by nature unethical. Are you making the claim that this is a universal condition? I think you’d have trouble supporting that.

            • Not that it’s unethical, just that it’s important to realize that the *nature* of the agency relationship is weighted in the publisher’s favor, not the author’s.

      • Hi Marc, it’s not really true that the real estate agent wants the highest price–they want the fastest sale, even if it means accepting a lower offer. The holdout is usually the homeowner who perceives the value of the home to be higher. The real estate agent wants the commission now.

        Real estate agents also frequently bookend deals, which doubles their commission effectively. That is, seller’s agents don’t like buyer’s agents, they’d rather turn away a represented buyer to accept an unrepresented buyer because they don’t have to split the commission (typically 6%, 3.5% to the seller’s agent and 2.5% to the buyer’s agent–when they bookend, the seller’s agent keeps all 6%).

        • It’s more important to the agent that the sale happens than that the price is as high as possible, I’ll grant you. However, I said Tom wants the deal to happen. Once we accept that, ceteris paribus Tom wants the highest price, not the lowest price. That is the conflict of which most people are unaware.

          This isn’t as helpful to Tom as it might first appear, either, because it may suggest that he is willing for the price to be lower than the maximum but it also implies that he is more interested in making it happen fast than in making sure the deal is optimal for the buyer. If Tom can ethically suggest that any particular deal parameter is unimportant and shouldn’t stop the deal, he will. He isn’t required to expand on such issues or to present the possible negative consequences with any particular emphasis. He has to comply with his local real estate regulations and not make false statements. After that anything he chooses not to bring up, even if he knows it might affect the buying decision, he can keep to himself.

          Before you say it, I am not suggesting that real estate agents are a pack of fraudsters. We are talking about edge issues here, not obvious wrongdoing like bribing home inspectors to leave things off reports and such.

          • Neither am I suggesting that agents in general are fraudsters. There are just conflicts or perverse incentives that arise naturally from the nature of the relationship–where there is money at stake. Other professions have similar scenarios.

      • “the seller rejects the offer for no legally acceptable reason”

        What, praytell, do you mean by that? Legally acceptable reason??? How about, “I don’t like the offer you’re making, and it’s my property to sell, so I’m walking”?

        Dude…seriously. The Landlord-Tenant parallel you are making is not valid at all. There are laws that say things like you can’t refuse to rent to a black dude, for example, just because he’s black. But that has no bearing on the kind of transaction we’re talking about here.

        Think about what you’re suggesting – that a person could be FORCED to SELL property in a manner that is disadvantageous because…why?

        Methinks you are speculating yourself into a pretzel without cause.

        • A legally acceptable reason is one that is legally acceptable.

          To be more specific, either it’s in the contract that it’s an acceptable reason, or by the operation of law or regulation it’s an acceptable reason.

          If the contract and the law and the regulation of the jurisdiction(s) at issue are silent as to what constitutes a legally acceptable reason, then it may very well collapse to your assertion that “I don’t want to do the deal” suffices. However, this may or may not be the case. I’ll turn it around on you: the deal is fully implemented, the parties have a meeting of the minds, the author shows up at the publishing company’s office to sign it because this is an example, and it turns out the editor assigned to the book is black. The author goes bananas, says they don’t want a black person (using very racist language) involved with the publication of their book, refuses to sign and walks out. You okay with that?

          And I assure you that the idea that a person could be forced to sell property in a manner they consider disadvantageous is old hat to a lawyer. I don’t even really know how to respond to it other than to say, “I’m not suggesting it. I’m saying it’s true. Because, you know, centuries of contract law.”

          • Remember there is a agency contract between the agent and author that could pose a problem to the author. The agency contract could have some clause in there that asserts a right to a commission if the agent brings a deal to the table and the author turns it away without good cause. PG may have even profiled a few before.

          • “The author goes bananas, says they don’t want a black person (using very racist language) involved with the publication of their book, refuses to sign and walks out. You okay with that?”

            Would I think the guy’s a schmuck for taking that stance? Absolutely. Is it within his rights to take that stance? Also, absolutely.

            It boggles the mind that someone would be forced to enact a contract that he has not yet signed, if he decides he no longer wishes to enact that contract. For any reason.

      • One distinction is that there is always an asking price for a real estate sale or lease so everyone knows where any price negotiations begin. The seller or landlord is presumed to be willing to do the deal for the asking price.

        • Precisely. Author tells agent, “I want SFWA model contract, 100K advance, rights revision in five years, and a trip to Hawaii.”

          Agent goes to publisher with wish list. Publisher says, “Okay,” and signs it. Agent goes to author to get signature. Author says, “That was too easy. I want more.” and refuses to sign. Publisher says, “Screw you.” and declines to further negotiate. Should the author suffer no consequences for blowing the deal which the other parties were prepared to enter into on good faith and on the author’s proffered terms?

          Depending on the precise circumstances, both the publisher and the agent might have a very viable legal claim against the author. The publisher for the book, and the agent for commission and/or damages. Now, I suspect that most of the time this isn’t so, but as an attorney I would have no difficulty whatsoever coming up with a theory as to how publisher and/or agent could proceed against author. Whether they’d want to would be a separate business decision, but they probably could if they thought about it hard enough.

          • By the way, this is another good example of where the author might be forced to sell something they didn’t want to. If the agent’s agreement gives them the power to sign the contract, the deal is done whether the author likes it or not if the agent signs and the publisher signs. But if the author won’t sign over the copyright* and/or deliver the manuscript, the publisher can sue on the contract and force them to do it. The legal term for this is “specific performance.” Courts don’t like to use it but it is a viable alternative.

            *”Sign over the copyright” is shorthand for the various actual methods of license or transfer which might be involved.

          • Marc,
            The consequence to the author would be that the publisher and the agent would not be inclined to deal with him again. God forbid anyone but the author should risk their time and effort.
            And we all know that agents have never been known to blow a deal, leaving the author with no recourse.

        • Yikes! Sorry I brought up the real estate analogy. lol. My main point was that authors shouldn’t be pressured to sign a contract out of guilt.

          • But I think the real estate analogy is a good one, MP: many people are familiar with how real estate agents operate. The most significant difference is that they are governed by laws & association rules, unlike literary agents.

            And when buying/leasing real estate, there are more factors than price — as with negotiating a publishing contract. A real estate agent will ask about these other issues (location, type of property, condition of property, the various encumbrances & covenants involved, etc.), while it appears that most literary agents currently focus only on the money. A real estate agent will understand if something other than money causes a deal to fall thru — & usually knows about it ahead of time, & has been working on those matters. (Well, the ones I have worked with pay attention to those issues; one of them made the top 10 list of Realtors in my city, so doing that is good business.) If a literary agent doesn’t understand that a writer is concerned about other issues than money (e.g., “don’t worry about the non-compete clause, it’s standard boiler plate; look at all that money you’ll be getting”), then they will be surprised & disappointed when the offer is rejected.

    • I was under the impression that TRADITIONALLY agents were supposed to negoticate a deal the writer WOULD want to sign. So if the writer says “no” the agent should go back to the publisher and request better terms OR more money.

      Or is that a myth?

    • I decided to go full-on indie in part because I didn’t want a great agent held hostage. I could walk away from a bad contract, sure, but then a great agent, someone I liked… wouldn’t get paid.

      Now if I ever make it so big as to get approached by publishers, I can hire an IP lawyer to write a contract for the publishers and tell them that they need an agent… ;)

  3. I completely agree with PG. Never say you will sign a contract in advance of seeing the contract. And an advance is only one small part of the contract. Just because they got you that $10,000 advance doesn’t mean there aren’t other draconian conditions attached.

    I do think it is reasonable for a client to set certain baseline requirements with the agent; but frankly, I think that’s something the agent should ascertain before they shop the project. A real estate agent would ask if a client wanted a condo or a townhouse before looking around.

    Bottom line, it is the responsiblity of the agent to get the client a deal that the client will want to sign. That is their job. Agents just aren’t used to having their contracts be under scrutiny; it’s a new world now where a client may say ‘no’ to a contract.

    I also like what MP said about a real estate agent. A bad deal is a bad deal. A writer does not owe an agent anything. This is not about people, this is business.

    • I think part of Rachelle’s problem is that agents are accustomed to authors who are willing to take any deal that is offered by a publisher. Self-pubbing as a more-desirable alternative to traditional publishing is something new.

      Perhaps it’s some agents being in denial, but I don’t see that it’s too difficult for an agent to have a discussion about what an author’s expectations for a publishing contract and advance are before undertaking representation.

      • What I find funny is that, under the old regime, if the agent couldn’t sell the manuscript for desirable terms, the manuscript went back in a drawer. Now that authors can viably self-publish, the agent somehow feels cheated if they can’t sell the manuscript and the author decides to self-publish.

      • PG – exactly! It’s a new mind-set, I think. I imagine it will take alittle time for agents to adjust, but I suspect they will start to do this routinely, if only to protect their time.

        I like the idea that writers are asked these questions, too. They’ll have more ownership over their contracts.

  4. I think the most important thing here is respect–agent respect for the author, and vice versa. I understand that the agent doesn’t want to do all that work for free and have it come to nothing, but neither does the author. Personally, I would think that in general, authors spend more time writing the book and doing all those rounds of editing than an agent does negotiating the contract. Plus all of the marketing many authors are expected to do once their book comes out. The agent isn’t the only one here doing a lot of work and hoping they find a deal and a lot of readers.

    Frankly, I would never want to work with an agent who would be put out if I walked away from a contract because some of the terms were untenable to me, but not to them. Again, it comes back to respect–this is a business, after all–and from what I’ve seen of this agency, respect doesn’t seem like a high priority.

    • Not to mention, the “months and years” thing is BS. I signed an agency agreement (I know) with my last agent that gave him exclusive rights to rep the work for two years. In that time he sent it to a whopping two editors. Hard at work!

  5. In sales there is a tactic used that makes the potential buyer to feel obligated. That is, you take time with a customer that walks on the car lot. The more time you spend helping them, answering questions, etc. the more obligated they will tend to feel that you get paid for your time with a sale. It isn’t a conscious thing, but subconscious.

    This appears to be the same dynamic going on here. Agent invest some significant time and energy and comes to the author with an offer from the pub house. The author feels a certain obligation to sign the contract. After all, the agent will tend to tell them they got a good deal. Not that six figure advance, but decent for a new author. And if the author sees something they don’t like in the contract that gives them pause, they can feel guilty for saying, “go back to the table.”

    Especially if an agent lays that guilt trip on them by saying things like, “We worked really hard to get this deal. If you send it back, I doubt they will offer another one and all our work will have been wasted.”

    I can sympathize with an agent doing a lot of work to read slush for free, find the ones they think will sell, work on the book, queries, send out to publishers, and sell a book, get a deal, all to have it fall through at the last minute because of what might seem like an unreasonable author demand. I’m sure those stories are told around the agent get together table from time to time.

    But, like she said, it is the risk of what she’s doing. Certainly good to discuss expectations so they are realistic. But keep in mind publishing houses paid people salaries at one time to do what she’s doing for free in their behalf. The publishing companies are the ones with sweet deals for not having to pay for the first level of slush reading. Instead authors pay for it with a 5% commission on all sales of their book. (Was 10% agent fee before taking on publishers slush reading for them.)

    If she and other agents had the courage, they’d send a separate bill to the publisher for the hours invested in finding the book just sold to them, and any editing expenses in time or cost. That should be the publisher’s cost, not the author’s.

    • Great points, RL!

      I like your point about the ‘emotional pressure’ it places on the writer to feel obligated.

      I also agree that agents are treated almost as badly as authors are by Publishers. They work them to the bone, and give very little in return.

  6. I don’t think it’s unreasonable for the author to tell the agent up front what sort of offers he or she will and won’t accept. The big 6 publishers are now offering no-advance “digital first” contracts. Some authors will take them, some won’t. I have a minimum dollar value below which I will not sell one of my novels. Below that threshold, I’d rather self-publish. I haven’t shared that number with my agent because I haven’t needed to–she sold my books for an amount above the threshold. But if she wanted that number, I’d give it to her.

  7. I do think this is a matter of respect and communication on both sides. Yes, absolutely, authors should not blindly commit to signing any contract. But on the flip side, if an author contracts an agent to do some work on the good faith assumption that the agent will get paid if the book sells, then the author has some responsibility toward the agent as well. I don’t see it as a legal issue — it’s just a matter of treating a fellow human being fairly. To this end, Rachelle’s suggestion that both parties be upfront about their expectations and the types of deals they’d accept seems reasonable. Of course, you can’t plan for everything beforehand, and hidden contract issues might pop up, etc. etc. etc. But the bottom line is communication and respect.

  8. One thing that is challenging about offers from traditional publishers is that the author is expected to accept or reject the offer over the phone without seeing the contract. Typically you’ll get the financial information, such as the amount of the advance and some accounting details. But you may be months into the publishing process before you actually see the contract and thus the (negotiated) option and non-compete clauses. That can put an author into a difficult position if the contract hasn’t been negotiated to his or her satisfaction. The author could refuse to sign, but that would be decidedly awkward.

    • Does “accepting” the offer in effect the same as signing the contract? Which to me would be when you officially accept it. And who would sign a contract like that without going over it?

      IOW, it would be one thing to say over the phone, “The advance and details shared are acceptable to me,” but still be able to say “No” when it came time to sign on the bottom line because other factors didn’t satisfy the author.

      And I have a hard time believing (not saying it isn’t true, just sounds like stupid business practices to me) that a publisher would start the process of moving a book toward publication until they had a signed contract in hand. Do they seriously wait months into the publishing schedule to get a signed contract? Or are authors that crazy to somehow sign a contract over the phone without ever having seen it?

      That just boggles my mind.

      • “And I have a hard time believing (not saying it isn’t true, just sounds like stupid business practices to me) that a publisher would start the process of moving a book toward publication until they had a signed contract in hand.”

        I have a hard time believing it too, but that’s a failure on my part, not reality’s. I have seen any number of business deals, of all sorts, proceed a totally ridiculous distance along the path of time, money and effort while the contract was still pending. A small but nonzero number of those deals ended up just going away when it turned out that hey, we just can’t make a contract both parties are willing to sign.

        Lawyers hate this, but it is a reality in business. Lawyers who can’t deal with it go into other fields of law. The rest of us just develop nervous tics or drinking habits.

      • I don’t think accepting the offer over the phone is legally binding. It’s just assumed, at that point, that mutually acceptable contract terms will be reached. The author could walk but rarely does. I personally know one author who walked after accepting but before signing. I don’t think it was for contract reasons, but because of dissatisfaction over the publisher’s handling of the book. The author ended up signing with a different publisher.

        • “I don’t think accepting the offer over the phone is legally binding. ”

          I am a lawyer: this is not legal advice. Consult an attorney licensed to practice in your jurisdiction and familiar with the relevant law before making legal decisions.

          With respect, you think wrong. Absent what are admittedly roughly one zillion exceptions, verbal contracts, or verbal acceptances of written contract offers, are perfectly binding. Since we are dealing with copyrights, there is one particular exception which might apply in many cases, but it’s not something you want to bet on.

          Although ironically many big boilerplate contracts contain language which says “This is not a binding offer.” :) That doesn’t entirely negate the problem for reasons which start to get technical.

    • Hence the continued lack of respect toward the authors leading many to chose self-pubbing.

      My mama taught me to always read every word before I signed something. Anyone ever asked (demanded) that I sign a contract of any kind sight unseen, I’d tell them where to put it. Yet authors are expected to sign their rights away under these conditions? And if they say no, they’re being unreasonable prima-donnas? It’s an ‘awkward situation’?

      Yeah, gimme some more of that respect.

    • I’ve seen plenty of publishing contracts, including many with changes. The most-amended contract I’ve seen could have been prepared in not more than 15 minutes.

    • It just occurred to me — in this new world, a real value-added agent would have boilerplate contracts to hand to the publishers. I.e., they’d work with the client on the right boilerplate (hopefully originated with a lawyer at least at the start, minimum), then slap that on the table as the opening negotiation when an editor expressed interest.

      Working with a contract to start could allow the agent and author to figure out dealbreakers in advance…

      Mind, such an agent might not get much traction with editors unless they were repping J.K Rowling or S. King… :(

      • I know the SFWA has a model contract: it wouldn’t surprise me to know other genre organizations or even more general ones like the Author’s Guild do.

        I would very much like to see the response of a publisher to some first-time author submitting a filled-in model contract with their manuscript submission. I suspect it would be quite interesting to watch.

  9. Perhaps it’s some agents being in denial

    Some maybe, but clearly not all, which would explain the flurry of “why agents are so/still important/necessary” posts and articles we’ve seen the last two years.

    Before I noticed indie pub, and began following related web traffic, I was an ardent follower of agent blogs. Most common threads: how to get noticed by me…how not to get rejected by me…what to never query me about…and so on.

    Big change it seems.

  10. I can smell this agent’s fear all the way over in France.

    I like the analogy from above: It’s just like commissioned sales in Real Estate (RE). The RE agent finds a buyer and the seller decides whether to take the offer or not. If the seller finds his own buyer or decides to take the property off the market or rent it instead, no commission for the agent. Why should literary agents get anything more than a RE agent? They’re both selling property. They both put in work to sell a property, find a buyer, with no guarantees of a sale. RE agents pay for ads and MLS and all kinds of other overhead while a literary agent pays for travel and other overhead. It’s business. You win some, you lose some.

    Agents pay attention: you’d better up your game in the relationship area and value-added services, and let go of the mindset that authors should be your captives. Times they are a-changin’. You will either adapt and overcome or shrivel and die. (Darwin’s theory, yes?)

    Any agent who tries to strong-arm, threaten, or scare an author, or who tries to limit contractually an author’s freedom to do what she wants with her work, is not going to last in this new market. Authors talk to each other and the internet is our playground.

    Author empowerment is a wonderful thing.

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