From Crime Fiction Collective:

Every year I think about going to Thrillerfest, but this time my reason for not attending is different. In the past, it was always a financial issue—an expensive conference and an expensive flight. But now that I can afford it, I’ve decided to pass for ideological reasons that recently become more pressing. The short answer: Agentfest, a sub-conference within the larger gathering.

Last year, I was invited to teach a workshop at Willamette Writers conference, and I turned it down because the conference is focused on writers pitching to agents. Agentfest is the same thing: hopeful authors trying to sign contracts with agents. This choice, of course, is for the author to make, but I can’t, in good conscience, support an program that encourages new authors to sign with agents. (For established authors, it’s a different decision.)

I don’t have anything against agents personally. But their role in publishing has become mostly obsolete. Yet, the 15% forever commission hasn’t changed. What has changed is how they earn it. Now many agents are helping their clients self-publish by performing tasks that authors can do for themselves or contract to professionals for a flat fee.

. . . .

So for me, it doesn’t feel right to attend—and spend money on—a conference that matches new authors with agents who may steer them into bad financial decision, which, in my opinion, includes most contracts with traditional publishing as well. Especially now that big publishing owns the most notorious author-scamming vanity presses out there.

Link to the rest at Crime Fiction Collective and thanks to David for the tip.

A few days ago, PG blogged about a post by agent Rachelle Gardner about non-compete clauses in publishing contracts. PG hasn’t kept track of the maximum number of comments various posts have received, but that one was certainly among the leaders. Most comments were not complimentary to Ms. Gardner.

She has a follow-up blog post.

From Rachelle Gardner:

I’m a literary agent.

I advocate for authors.

That’s my job, it’s what I choose to do, and I enjoy doing it. Every day I’m grateful for my partnership with so many talented writers. I consider it my privilege to assist them in reaching their publishing goals. I work hard to understand their needs, priorities, and dreams so that I can serve them well.

Part of my job as a literary agent is also to have a deep understanding of publishers. The better I understand their goals and concerns, the better I can find the right authors for them, and negotiate contracts that are win-win for both author and publisher. The more I do that, the more both authors and publishers appreciate working with an agent, and have a positive publishing experience.

On Monday I wrote a post in which I attempted to explain the publishers’ concerns in this new age of hybrid authors who are both traditionally- and self-published.

But I messed up royally.

In my effort to illuminate the publisher’s perspective on things, I inadvertently came across as completely defending the publishers’ viewpoints, and somehow being on the side of “Big Pub” (as some commenters put it) rather than being an advocate for authors. That was my mistake. I badly miscommunicated, and I regret it because it led to so much misunderstanding.

. . . .

I am the author’s advocate, and I take that role seriously, as I know most agents do.

. . . .

Like most agents, I always work hard on the stickier contract clauses, such as non-competes and options (“first right of refusal”). My goal is to protect the author’s rights and get them a fair contract. Many comments on Monday’s post seemed to assume I was saying I would “just accept” publisher non-competes. I’d be an extremely poor author representative if I did that! I meant to convey that I understand the goals of a non-compete, and this understanding helps me to speak to publishers intelligently and work with them to come to a win-win solution.

Link to the rest at Rachelle Gardner and thanks to Dan for the tip.

PG gives Rachelle credit for recognizing a mistake and correcting it.

From agent Rachelle Gardner:

These days, I’m sensing that many authors are gung-ho to write and publish as much as possible. Now that the term “hybrid author” has been coined, referring to those who are both traditionally and self-published, everyone thinks they want or need to be one. As one author put it, “It seems like the time is now! It’s time to be prolific!”

I am not sure what makes people think “the time is now” as if we are in some kind of awesome bubble that is going to burst soon. We’re not.

We are in a long, slow transition period of our industry, in which people are experimenting with different ways of doing business. Some will work, some won’t. More importantly, different things will work for different people.

More does not always equal better. More books in the marketplace might mean more money in your pocket, but it also means less time available to pay attention to high quality writing, and less time available for giving each book the full weight of your marketing efforts.

If you are contracted with a traditional publisher, you may have restrictions on your ability to self-publish “on the side.” And this is not because publishers are overly possessive, or “dinosaurs,” or “just don’t get it.” It’s because they have an investment to protect, and it’s their responsibility to ensure nothing you do will interfere with the saleability of the brand they’re building (you).

. . . .

The publisher is working hard to position you in the market a certain way, and to maintain a level of quality for which they want you (and themselves) to be known. If you self-publish, they lose their ability to have input into the quality of your work, or the branding. This  can not only reflect negatively on them, it can create confusion in the reader (who sees different kinds of books with your name on them) which can lead to lower sales.

. . . .

Publishers spend considerable money on several rounds of editing, copyediting, and typesetting. They also have expensive, experienced designers for your cover as well as the interior design of the book. It’s risky for them when an author self-publishes and leaves the publisher without the ability to ensure a certain level of quality.

. . . .

When a publisher contracts with you, they’re not only buying the rights to your books, they’re expecting you to devote the proper amount of time to the whole endeavor. This includes taking the time to write the best book you can, and it also means spending some time on the marketing of your book. Publishers are rightfully concerned that your efforts in self-publishing will take away from your ability to give your best to the books you’ve contracted with them.

. . . .

Publishers don’t want your promotional efforts on your self-published books to eclipse their promotions on your contracted books. If they allow you to self-publish, they may lose their right to set boundaries on what you’re allowed to do promotionally, and this can be disastrous.

. . . .

All of this adds up to competition, i.e. situations in which your self-pub books are competing with your traditional-pub books for the reader’s attention. That’s why the paragraph in the contract that covers this is called the non-compete clause. The publisher has a right to protect themselves from their contracted authors competing with the publisher, thereby potentially harming the publisher’s sales of your book(s).

Link to the rest at Rachelle Gardner and thanks to Mira for the tip.

For PG, this sounds like a first-grade teacher trying to make sure all the disorderly authors stay in their seats.

Many authors are “gung-ho to write and publish as much as possible” because they have this irrational desire to give up their day jobs and make a career as an author. Silly authors. Be quiet and do as you’re told.

PG has had discussions about non-compete clauses with a number of publishers during the course of helping authors with their publishing contracts. He has never heard a rational business basis for these clauses.

If you would like to have an interesting experience with a publisher, propose that the non-compete clause be reciprocal. The author won’t publish anything that will compete with the author’s book and neither will the publisher.

That way, the publisher can “devote the proper amount of time to the whole endeavor” and won’t be releasing any books that might compete with the author’s. After all, an author  is “rightfully concerned” that the publisher’s efforts in publishing other books will detract from its ability to give its best to the author’s books they’ve contracted to publish.

In the non-compete clause world, the publisher controls the market and, when the publisher releases your romance novel, it will be alone on the bookshelves. Amazon will list no other romances for sale.

If you release a self-pubbed romance at the same time, romance readers will become hopelessly confused. “I never buy more than one romance novel a year,” they’ll say. “Which Jane Jones book should I buy? This is very disturbing. I’m going to wrap myself in my blankie and buy nothing except Doritos until my confusion goes away.”

On a more serious note, signing a publishing contract with a standard non-compete clause can prevent you from ever writing in the same genre during the term of your publishing contract (the rest of your life plus 70 years).

Passive Guy first wrote about this a couple of years ago in How to Read a Book Contract – Non-Competition. He will provide a further warning that some publishers attempt to disguise their non-compete clauses by burying them back in the contract boilerplate that inexperienced authors and some agents don’t read.

From Yahoo News:

Harper Lee, who wrote the Pulitzer Prize-winning novel ”To Kill a Mockingbird,” filed a lawsuit Friday to re-secure the copyright to it.

. . . .

The lawsuit alleges the son-in-law [and defendant], Samuel Pinkus, failed to properly protect the copyright of the book after his father-in-law, Eugene Winick — who had represented Lee as a literary agent since the book was published in 1960 through the firm McIntosh and Otis — became ill a decade ago. The 87-year-old author alleges Pinkus took advantage of her declining hearing and eyesight seven years ago to get her to assign the book’s copyright to him and a company he controlled.

Link to the rest at Yahoo News and thanks to Danyelle and several others  for the tip.

This news item originally appeared in a comment to another post and PG responded as follows:

This situation illustrates an issue most authors don’t think about in an agency agreement. If the agent obtains a publishing contract, the agency agreement will often provide that the agent will receive a commission and be the author’s representative to that publisher for the life of the contract.

If the publishing agreement extends for the life of the copyright – the author’s life plus 70 years – the original agent is going to die long before the publishing agreement does. The agent may well sell the agency when he/she wants to retire.

Under most agency agreements, the author has no control over who replaces the original agent when that agent dies or retires.

One more reason to insist on split commission checks. Most agency agreements will provide that the agent receives the entire royalty check and thereafter will forward the 85% that belongs to the author to the author. A split-check provision in the agency agreement and each publishing agreement for which any agency commission will be paid means that the publisher will pay the author his/her 85% directly and pay the agent the 15% to which the agent is entitled directly.

Additionally, the author never assigns his/her copyright unless the assignment is part of an estate plan to take care of the copyright upon his/her death or disability. There may also be some tax-planning exceptions to the “never assign” rule.

PG wrote a post about a real-life mess that occurred after an agent died in How to Read a Book Contract – Somebody’s Gonna Die

From regular visitor and author JW Manus:

I get several emails a week from people who are self-publishing or thinking about self-publishing. They ask me questions about the process.

Sometimes I can answer: “What’s a good program for making an ebook?”

. . . .

Sometimes I have no answers: “What’s the most effective type of marketing and promotion?” (who knows?) “Will I make money selling ebooks?” (maybe, maybe not)

. . . .

A common thread running through most of those emails is this: I feel alone and I’m not sure what to do.

I want to assure those folks that one) self-publishing DOES NOT mean going it alone; and two) by asking questions, you are doing EXACTLY THE RIGHT THING.

The number one reason I hear for going the trad pub route is this: “I just want to write and let a publisher or my agent take care of all the business-production-marketing stuff.”

I understand that. I honestly do. When I’m caught up in creative throes, I don’t want to bothered by, you know, life. Here’s the reality. I sold my first piece of writing in 1990. I’ve worked with several publishers. I have a stack of book contracts. I’ve belonged to several professional writer organizations. I’ve listened to and talked to hundreds of industry professionals–writers, editors, publishers, publicists, agents, and booksellers. So I’ve been around the block once or twice. One thing I know for a hard fact is this: The industry is full of weasels and sharks, and if you abdicate your responsibility to your writing and your career, you will get bitten. It might be a small, barely noticeable wound, or you might get eaten altogether.

. . . .

It’s actually more in response to something I’ve heard several times in the past week. Proponents of traditional publishers and agents proclaiming their valuable role in “nurturing” writers.

Um… no.

Nurturing is what mothers do for babies. Writers are not infants. Most aren’t children, either.

Despite my raised hackles over such condescending bullshit, I still understand the appeal. Writing can be lonely. Loneliness leads to frustration. Frustration requires relief lest it fester. You need someone to tell you that you aren’t wasting your life on a dream. You need assurance that you are doing at least something right. Gold stars and pats on the head don’t do a thing for me, but I do understand the very real need for recognition and acknowledgement for a job well done.

So this is for the writers who are looking at self-publishing, but are afraid that it’s a leap into a lonely abyss. Afraid it is too hard. Afraid they’ll make mistakes.

. . . .

You don’t need nurturing. You need connections and support. One of the most fabulous aspects of self-publishing is that the community is large, noisy, active and supportive. Generous, too, with information.

Link to the rest with a lot of good advice at JW Manus and thanks to Julia for the tip.

From author Will Weaver on The Huffington Post:

A writer pal called recently to grumble about his agent-and, formerly, mine. He’s a National Book Award winner a few years back, and together we endured a worst-case scenario: a small but well established agency changes leadership, and goes bankrupt at first slowly and then all at once. Mismanagement, late and eventually no royalty payments, broken paper trails, shuttered office, and the agony of a lawsuit. I recovered 50 cents on the dollar; my pal is still sorting things out. He has a new agent now whom he’s not fully happy with, and I’ve been getting by, sort of, without one. That kind of authorly conversation.

However, the more we talked the more we came around to a general point: literary agents are probably now more important than ever — for several reasons.

For beginning writers it’s tempting to say, “Hey, why do I need an agent? Why pay someone 15 percent when I can self-publish, or e-publish and keep 70 percent of the royalties?” But the real question is, “Fifteen percent of what?” The days of huge advances are over unless you’re someone with a million Twitter followers, but very few self-published/e-published authors make more than chump change. Objecting to a well-connected, in-your-corner agent taking 15 percent for selling your novel to an actual publisher is a sure sign that you’re not ready for prime time.

. . . .

An agent’s job is to keep you from getting lost-artistically, contractually, and in ways not yet invented at the reading of this document (as a good Rights contract might read).

Link to the rest at The Huffington Post and thanks to James for the tip.

From David Gaughran:

I was at the London Book Fair last week – and I’ll be blogging about that soon – when the news broke that David Mamet is to self-publish his next book.

His reasons? ”Publishing is like Hollywood—nobody ever does the marketing they promise.”

While I think it’s great that someone as high-profile as David Mamet is self-publishing, I was very disappointed to find out the way he’s doing it.

. . . .

Literary agents in particular must be worried about what that means for their future, which explains their ludicrous reactions when someone like Barry Eisler states the above. However, a company called Argo Navis – a publisher-owned distributor – has come to their rescue, providing them with a way to re-insert themselves in the chain between self-publishing author and reader. And get their cut of course.

Mamet is represented by a major literary agency – ICM Partners – who are just one of many agencies to have signed a deal with Perseus Books-owned Argo Navis.

What Do Argo Navis Offer?

Essentially, Argo Navis are a distributor. They offer a portal through which authors’ work can be distributed to all the various retailers like Amazon, Barnes & Noble, Apple, and Kobo.

In exchange for this relatively trivial service, Argo Navis take a 30% cut. You read that right. After the retailer takes their standard cut (usually also 30%), Argo Navis take another 30% before passing on payments.

Obviously, this is massively overpriced compared to distributors like Smashwords or Draft2Digital, who only take 10%, and especially so when you compare the cost of going direct to retailers like Amazon (it’s free). But the problems with Argo Navis don’t end there.

Services like cover design, editing, formatting, scanning, and conversion are not included in this hefty price tag – but are available for a premium. Who provides those services? According to their website, it’s “third party specialists.”

. . . .

Why Are Literary Agents Using Argo Navis?

Argo Navis has been very clever with how they market their service. It’s pitched as agent-curated self-publishing - hey, it’s a step up from assisted self-publishing. Argo Navis don’t (and won’t) deal with authors directly, and will only accept titles for distribution submitted by literary agents.

This in turn allows agents to tap into what I call The Myth of the Segregated Marketplace - where authors believe that the visibility challenges resulting from the open nature of digital distribution are exclusively faced by self-published authors. Of course, those challenges are faced by all authors – however they publish. And given the abysmal rankings of books published via Argo Navis, it’s not a challenge that they are handling well.

But what’s in it for the agent? For starters, royalty checks come to their offices first (after Argo Navis have taken their considerable bite). This allows the agent to deduct their 15% before the author sees any money. Of course, it allows unscrupulous agents to take a little more – something enabled by Argo Navis only providing sales reports to agents rather than directly to authors – but I digress.

. . . .

At this point you would be forgiven for thinking that no reputable literary agency would go for this. Well, I wish that was the case. Here’s a list of agencies that have signed up with Argo Navis:

• Writers House
• ICM Partners
• Carol Mann Agency
• Cynthia Cannell Literary Agency
• The Hartnett Agency
• Paul Bresnick Literary Agency
• Pinder Lane & Garon-Brooke Associates
• Curtis Brown (US)
• April Eberhardt Literary
• David Black Agency
• Elizabeth Kaplan Literary Agency
• Folio Literary Management
• Levine Greenberg Literary Agency
• Liza Royce Literary Agency
• Melanie Jackson Agency
• Janklow & Nesbit Associates
• Joëlle Delbourgo Associates
• Arcadia Literary Agency
• Harvey Klinger
• APA Talent and Literary Agency
• Charlotte Sheedy Literary Agency
• Irene Skolnick Literary Agency
• FinePrint Literary Management
• Donald Maass Literary Agency

. . . .

What’s In It For Authors?

There’s no upside to being funneled into this program. Participating authors get lower royalties, no sales reports, slower payments, and lose the ability to make quick changes to things like pricing – which is essential for marketing.

The money is the big one though, so I’d like to focus on that:

• An author self-publishing direct with KDP will receive up to 70% of list price.
• An author who self-publishes via Argo Navis will receive 41.65% of list price.

Link to the rest, including links to some Argo Navis books so you can check the covers and sales rank at Let’s Get Digital

From Seth Godin:

For as long as I’ve been in digital media, skeuomorphs have annoyed me.

The original CD ROMs, for example, often had a home screen that started with a bookshelf, and you clicked on the ‘book’ you wanted to ‘open’ (excessive use of quotations intentional). Here’s the thing: bookshelves are a great idea if you want to store actual books on an actual shelf. They’re a silly way to index digital information, though.

If you haven’t guessed, a skeuomorph is a design element from an old thing, added to a new one.

. . . .

If a company is organizing to create music on MP3 or ebooks, it makes no sense to steal the organization of the past labels and publishers. High unit pricing, copy protection, significant advances, big launch parties and royalties all make much less sense when the fundamental rules of the product itself have changed. So do things like office buildings and layers of vice presidents.

. . . .

This consistency of structure is the single biggest reason that motivated market leaders (in any industry) fail to transition to new paradigms–they insist on skeuomorphic business models, bringing along the stuff that got them this far, even when it’s unnecessary.

Link to the rest at Seth’s Blog

PG thinks skeuomorps are one reason why many publishers and agents exhibit such wrong-footed responses to items like Amazon, ebooks and indie authors.

From Publishers Weekly:

The specific question at a late day panel on the Tuesday of the London Book Fair was not about whether literary agents matter, but about their future.

. . . .

[Lownie] launched an imprint at the agency called Thistle (which is similar to self-publishing units at a variety of U.S. agencies). The imprint, he said, can be used to publish books “quickly” and also a place to publish out-of-print backlist books by his authors. Given, Lownie said, that publishers have become “more cautious than ever” about taking on projects, agents need to be able to look at projects and be able to take them to market in a different route. While he recognized that it is harder than it’s ever been for agents to sell a book, he thinks digital publishing “has opened up huge opportunity.”

. . . .

As publishers do less and less in the way of marketing and publicity for titles, Ogden said it now falls to agents to be the ones to “keep on them” about the books they are publishing. It’s agents now, she said, who often need to think about innovative marketing plans, and ways to break out a book.

Lownie also said agents have become more important, on some level, because there are now more rights available and contracts have become more complex. With digital publishing creating a host of new available rights, Lownie sees agents working as authors’ “copyright protectors.”

. . . .

So why do authors even need a publisher, if their agent can now publish for them? Lownie put it bluntly when he said that only a publisher can “get books into the supermarket.” (In London, with the dissolution of many of the bookstores, the supermarket is one of the most important outlets for selling books.) To the end, Lownie said that while many authors can (and have) found success self-publishing, he thinks they will continue to need to seek out a traditional deal to “move to the next level.”

Link to the rest at Publishers Weekly and thanks to Abel for the tip.

From Paranormal Point of View:

For me personally, when someone says “rapidly changing market” my thoughts go to electronic book sales and subsidiary rights.

What does “rapidly changing market” mean in terms of ebook sales? Growth. We’ve seen huge growth in the ebook market since I started working in publishing in 2006. The impact of that growth affects my job in many ways – this won’t be an all-inclusive list, but here’s an overview:

In 2012, Stefan Bachmann’s book sales (remember – he writes middle grade fantasy) broke down to 94% print sales and 6% ebook sales. Conversely, Roni Loren’s book sales (for contemporary erotic romance) were 33% print book and 67% ebook sales. How does this affect my job? Well, I need to know this stuff. It’s important to know the numbers, the trends and the impact for my clients and their books. We see ebook sales growing tremendously, but it’s also important to know in which genres that growth occurs and in which segments growth is perhaps plateauing.

. . . .

What does “rapidly changing market” mean to subsidiary rights? Opportunity. Subsidiary rights (to an agent) means film, foreign rights, audio rights, gaming, merchandise, etc. Possibly as a side result of the growth in ebook sales (or possibly due to the gigantic increase in pop cultural success coming from books like HARRY POTTER, TWILIGHT and HUNGER GAMES) – I’ve seen tremendous increase in opportunities for my authors to make money on subsidiary rights. I have more interest from Hollywood for film and TV sales than ever before and for a wider range of books (romance, erotica, New Adult, middle grade – etc.).

. . . .

As a side note, many times when writers ask agents about the “rapidly changing marketplace” they are asking about self-publishing. Self publishing is a wonderful trend that has seen tremendous success in the past few years. This trend doesn’t affect me much though as I don’t tend to represent previously self-published titles. My inbox is still stuffed full of authors looking for traditional publishing deals and that’s the model I, personally, tend to prefer. For example, Jaleigh Johnson came to me via the traditional email query letter in December and we sold her debut middle grade fantasy in 12 days in a significant deal to Random House. So, self publishing works for a lot of authors, but it’s not a trend that’s affecting me much right now as the traditional model is still working for me very very very well.

. . . .

As an agency, we provide serious and thorough contract negotiation. However, anyone can hire an entertainment lawyer (just make sure to hire one that specializes in publishing contracts). If you are self-publishing, then there are fewer contractual issues to worry about. But if you are print and/or e-book publishing with any publishing house – big or small – then the contract is a complicated document that most people need explained and/or negotiated for them.

I provide editorial feedback, career planning and publicity/promotions help – but an author can hire an editor, make their own career plans and pay for a publicity team.

Link to the rest at Paranormal Point of View and thanks to Abel for the tip.