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I heard a disturbing rumor

28 January 2012

From edittorent:

I heard a disturbing rumor — and I have to repeat, this is a rumor, not something I saw personally — about an agency contract that takes a standard commission on an author’s self-published books. Self-published. So the author would be contractually obligated to pay 15% of their self-published royalties to the agent even if the agent has never laid eyes on the book.

The theory behind this is that the agent is “building” the author’s career through traditional sales, and the author benefits from that in direct published sales, so the agent is entitled to a cut.

This is utter garbage, of course. Not every tenuous connection creates an entitlement. What’s next — if you write on your day job, they can take 15% of your day job salary, too? Agents act as brokers, selling books to publishers and earning a commission on those sales. Why should they ever be entitled to earn anything without performing the work?

You know what’s really going on here? They’re gambling that you’re more desperate than they are. They’re pretty desperate, some of these agents, because sales and advances are falling across the board, so agents are taking hits just as much as anyone in this business. Or, to put it another way, 15% of nothing is nothing.

. . . .

So what’s 15% in perpetuity on work the agency never sold? As long as the agent signs you, it’s all good, right? No. Not right at all. For one thing, you don’t know that this agent will ever sell a single thing for you. Plenty of authors are signed but never sold. You don’t know whether this agent will treat you well or screw things up for you — and if you don’t understand that agents can screw up a writer’s career, you haven’t spent much time talking to writers about agents.

Link to the rest at edittorent and thanks to Clare for the tip.

Has anybody seen this?

Agents

14 Comments to “I heard a disturbing rumor”

  1. If true, it confirms my deeply held beliefs about agents.

    (Cue the defenders of agents)

    • I’m sure there /are/ plenty of good agents who do their best to do a useful, cost-effective job for writers who want to be traditionally published.

      I shan’t venture to comment on what percentage of agents this might be.

  2. “Not every tenuous connection creates an entitlement.”

    That’s a beautiful sentence. I’m just going to savor it for a while.

  3. Can this be true? If so…

    One could argue that an agent is benefiting from independent work done by his client (increased name recognition and popularity of the author) so should reduce commission on any deals he achieves.

    Or one could just make a rude sign and leave.

  4. I’m not surprised, and I’m sure some agencies are doing it.

    I’ve also seen cases where a self-publishing author payed the agent 15% on her lonesome, evidently without any contractual obligation, because it was lauded by folks as a moral obligation for the work the agent had done on the book.

    Er, huh? As a freelancer, if I do a sample edit on someone’s work, or if I write an article on spec, I do so with the full understanding that I may or may not end up hired. (I therefore rarely write anything on spec unless I intend to self-publish that piece if it doesn’t sell.)

    • Ugh, that’s distgusting. Whatever happened to “shared risk, shared reward”? I’m sure people did laud it at a moral obligation–plenty of people (especially those who profit off writers) think writers have a moral obligation to starve in garrets, and until that writer was deaad of malnutrition, the agent hadn’t done their job, right?

  5. Of course it can be true.

    Nearly six months ago, I wrote a blog which predicted that now that literary agencies were setting up epublishing operations and epublishing “facilitation services” (and rather than specifying how they would deal with the ethical problems inherent in these choices, they instead just vehemently denied that a conflict-of-interest EXISTED in becoming publishers of the clients whose interests they’re supposed to REPRESENT in publishing deals), the next logical (unethical; but fiscally logical) step for these agencies would be to funnel their clients into their e-ventures.

    My blog about this on Ninc at:
    http://www.ninc.com/blog/index.php/archives/literary-agents-self-publishing

    In recent months, I’ve heard of at least two specific instances of agencies which, having set up e-divisions or e-services, are indeed now defining the client’s self-publishing venture as one in which the author must now pay a commission to the agent. These incidents were related to me privately and in confidence by people with direct experience of the policies and practices being implemented by these agencies.

    However… what I’ve also been told is that most writers are accepting such terms without understanding what they’re getting into, or WITHOUT CARING what they’re getting into. (In fact, I’ve even encountered writers who feel bad, for whatever reason, about earning money of which the agent doesn’t get a cut, and have therefore VOLUNTEERED to pay their agents 15% of their self-publishing income.)

    So agents are not ONLY counting on writers to be even more desperate than agents are (and they’re right), they’re also counting on writers to be bad at business and so grateful just to HAVE an agent that they’re willing to pay portions of their income to the agent for which the agent did nothing. And I have a sad, uneasy feeling that agents -formalizing- this practice by insisting they be paid a percentage of a client’s self-publishing earnings… will become a widely accepted practice. As absurd and outrageous as that seems.

    • “I’ve even encountered writers who feel bad, for whatever reason, about earning money of which the agent doesn’t get a cut, and have therefore VOLUNTEERED to pay their agents 15% of their self-publishing income.”

      So 15% forever is too much, but I can see cases where a writer might choose to compensate an agent for a self published book. For example, if an agent spent considerable time offering editorial feedback and got a decent offer for it that the writer ended up turning down, the writer might choose to pay that agent a flat fee for the editorial services provided. Not because the writer is somehow co-dependent on the agent, but simply out of a wish to compensate the agent for providing services that the writer benefited from.

      • Livia, I agree. There’s a difference between being fair and ethical, and being a doormat or doing business badly.

        It’s the difference between someone earning a fee… and someone being paid a fee because the writer is paying for the privilege of using the phrase “my agent” rather than paying for work done on a project.

  6. Well, I’ve certainly seen an agency contract vague enough to be interpreted this way. Where the agent is entitled to “any and all” payments pertaining to any “agreement” regarding the writer’s “Work”, where “Work” is defined as anything the writer writes.

    And I’ve certainly written said agent back to clarify that these clauses don’t refer to self publishing agreements like Amazon KDP, assuming that it was just a misunderstanding stemming from the fact that the contract was written before self-publishing became common.

    And I’ve certainly received, in reply, first a vague response from an assistant, and then a livid e-mail from the actual agent answering none of my questions, but instead pointing out all my character flaws and telling me I was a horrible writer to work with.

    Granted, there was other stuff going on in that whole exchange, but there was something funny going on there.

    (Quick clarification — the agent in question is not my current agent.)

  7. There’s now an update with clarification, in which they explain that this isn’t limited to when the agent helps the author self-publish, and proposes a hypothetical situation in which the agent doesn’t help the author publish anything (traditional or otherwise), but takes part of his or her earnings anyway.

    Mind-boggling.

  8. Aside from the agent, what about a publisher who spends a good sum to promote a book and makes it a success? Without the publisher’s promotional efforts the book would have no following at all. The author self-pubs the ebook on the coat tails of the publisher’s promotion, under cutting the print book price and makes a bundle. Does the publisher deserve a cut of the ebook revenue because of their promo?

    This is just argumentative, I self pub everything I write.

    I think the publisher has a better argument than the agent, and the agent should get his percentage on only the revenue the publisher receives from the ebook.

    • Kevin O. McLaughlin

      A moot point; publishers now largely consider ebooks rights the primary right, and are *extremely* unlikely to buy print rights without also acquiring ebook rights. Yes, it happens (John Locke). But the reason Locke’s deal was such big news was because of how unique it was.

  9. PG – there is a slight chance that this rumor might actually refer to me and my agent, because I have written something about it previously.

    When my agent and I together made the decision that I would self-publish Diary of a Small Fish (the manuscript she had under contract – we’d waited 9 months for 6 editors to not respond), we discussed a strategy to pursue and how it would change the nature of the working relationship we had. Essentially, I had a second manuscript on the way, and we both wanted to continue to work together. She is a big believer in the idea of “building the author’s career” (the – ahem – “garbage”), she’s sold a lot of work for her authors, several of whom have both traddy and SP works in the market, and she works harder than any human being I’ve ever met.

    My point in the post was that if we rewrote her job description to include activity outside of the typical agent’s (e.g., promote the book and the author in professional circles, help obtain panel/speaking assignments at conferences, raise profile, etc.), there should be a means of compensating her. In short, I proposed to compensate her, and she declined. So, we continue to work together anyway, and she awaits my second manuscript.

    So if this is indeed referring to my situation, the rumor has turned the truth on its head. The agent did NOT demand or even ask for her commission, and when offered it, she declined.

    I realize this upsets the cynical characterization of The Literary Agent these days, but there really are a few out there who actually get it, and embrace the dynamism of the marketplace. Being a battle-scarred 56 year old litigator, I can take care of myself, too.

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