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.