Learned Helplessness

14 June 2018

From Kristine Kathryn Rusch:

I was in the middle of a long blog post about writers licensing the rights to their work when the news broke about Donadio & Olson embezzling from their clients. I stopped what I was working on and wrote a different post, because I finally had public proof of something I’d been saying for years: that important, well-known literary agents mismanage and/or embezzle the monies they receive for their clients. This has gone on for decades. It’s not something new.

. . . .

Then another reader wrote an answer post, taking me to task about telling writers not to hire agents.

He’s argued, calmly and politely, with my advice on agents before, so that wasn’t new. We disagree. He has his reasons for keeping an agent. I think those reasons are mired in the 20th century. But that’s his choice. He seems to be making an informed decision, and is taking a calculated risk. I don’t agree with the risk, but it’s his career, not mine. (I do hope he audits his agent regularly. He monitors the payments he knows are coming, but there’s no way to monitor the surprise payments.)

Then…weirdly…I started getting emails, direct messages, and notifications (from friends) of tweets taking me to task for advising that writers not have agents. I was called names. Well-known writers who have never met me wrote that I always give bad advice and that it figures because I’m …pick your hated POV here. (According to the posts, tweets, and emails {depending on who is upset with me}, I’m either bigoted or too PC. I’m against all women or too feminist. I’m always on the wrong side of every issue, and I lie, lie, lie.)

. . . .

Because you can’t fight myths with logic. Even when the myth forces the people spouting those myths to act against their own (and their friends’) interest.

In addition to the tweet-storm, I got some fascinating emails. I can’t share some of them—especially the ones from long-time IP attorneys who told me about the fraud and embezzlement at big name agencies. One IP attorney reminded me of the Harper Lee mess with McIntosh & Otis.  Ironically, according to Vanity Fair,

The agency, known as M&O, was created by Otis and her friend Mavis McIntosh, who had both reportedly left another agency in the mid-1920s after they discovered it to be highly suspect in its practices.

As I said, this crap has gone on for a very, very long time.

I got a lot of sad emails from writers who lost money to fraud, lost major book deals to ineptitude, and have given up on their careers because of agent malfeasance.

. . . .

[A] New York Times bestseller posted on my personal Facebook page that she was surprised people were talking about this issue at all (she was defending the people who were defending agents—although she hadn’t seen the truly vituperative stuff), because no one talks about agents in her experience.

Her comment was followed by a new writer who worried that he couldn’t sell to traditional publishing without an agent. To date, I’ve gotten six public comments, five personal emails and three messages on Facebook just like that, asking the same thing.

I got to noodling all of this in my head—more proof, more stories, lots of us who say we do better without agents, that we can handle our own businesses, and then I went to lunch with a new friend who has worked in the arts for sixty years. She handles her own business affairs, still.

. . . .

Artists are supposed to be feather-brained. Artists are supposed to be bad at business. Artists who are good at business are anomalies or worse. Artists who are good at business are only in it for the money. Artists who are good at business don’t understand art.

Of course, the people who are defining what that art is are mostly professors, who were unable to succeed at the business side of the art, so they have to keep their day jobs.

Some of those professors are writers with big book deals and agents.

As I was noodling all of this, though, what bothered me the most were two things in combination: that comment from the New York Times bestseller about silence and the variety of plaintive messages from beginners who are still pursuing their dreams of being the kind of writer they grew up admiring. But how do you get to one of the big five publishers without an agent?  one of those writers wrote on Twitter this morning.

Well, that assumes that a savvy writer wants a contract with one of the big five. The fact that this guy wrote the question this way proves he’s not savvy. I wouldn’t let anyone go into that shark-fest without a lot of education, the ability to negotiate, and a tough-as-nails IP attorney on their side. And even then, I would hope the writer has a good reason for going traditional, because the best negotiator in the world won’t be able to get the kind of deal that we used to get as a matter of course in the 1980s.

It was the comment though about silence that really got me. Because the New York Times bestseller was right: writers rarely discuss the problems with their agents. Writers only brag about their agent’s successes.

The writers who have been screwed by their agents are either too embarrassed to write a blog post like Chuck Palahnuik’s or those writers have signed a non-disclosure agreement as part of a settlement with that agent. Only a few of us refused to sign NDAs, refused the settlements. And when we talk about what happened to us, we’re called crazy, delusional, and outliers. When we say we handle our own business affairs, we get dismissed because we’re successful so it’s easy for us. We are lucky. Or famous. Or have connections no one else does.

. . . .

Every person in the world who starts a small business—and that’s what writing is…it’s a small business—learns how to conduct the business part of the operation. If the small business owner doesn’t learn that, then they go out of business really fast.

Artists have safety nets that most small business owners don’t have. A professorship based on a few published books and stories (as well as an expensive PhD). Or an ability to get grants. Or an employed and tolerant spouse.

The myth is that artists can’t make money. And before I confuse some of you further, I’m going to stop using the term artist (for dancers, painters, musicians, writers), and hone down to writers alone. But this applies to all of the creative arts. Artists have safety nets.

You’ve all heard that writers can’t make money, so why even try? You’re writing for the love. You’re writing to create something lasting. You’re writing to become famous or well-reviewed or accepted in your own literary circle.

You’re not writing to make money.

Only fools and hacks write for the money. The more someone publishes, the worse their skill must be. The more financial success they have, the more their writing abilities go downhill as they “sell out.”

That’s counterintuitive to the way that humans operate. The more humans practice something, the more they refine their techniques, the closer those people get to the top of their game. Their game might not be as good as someone else’s, but writers—like everyone else—improve with practice.

. . . .

This myth that writers can’t make money plays right into the hands of embezzlers and con artists. Think about it: I’ll handle your negotiations, your paperwork, your money, so you don’t have to bother your pretty little head about it.

Money gets pocketed, writers need those teaching jobs, and the leech who made the offer benefits from the myth. The writer sure doesn’t.

And then there’s the silence.

Silence is the hallmark of abuse.

Link to the rest at Kristine Kathryn Rusch and thanks to Colleen for the tip.

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

As usual, Kris gets to the heart of the matter in a way very few others do.

PG can’t go into any details because of client confidentiality issues, but today he finished reviewing an agency agreement from a large literary agency for a client.

It required more time than it has in the past. Not because the agreement was longer or more complex than the many others PG has reviewed.

It was the CYA paragraphs.

When lawyers are asked to review a contract, in addition to other subjects, clients want to understand what can go wrong if they enter into the contract, what their downsides might be if the whole thing goes south. It took PG a while to work his way through the potential downsides for the client’s proposed agency agreement.

This lead him to think more about the agency and publishing business and why some common practices that would be considered illegal and immoral in other settings are “the way things are done” in publishing.

PG’s Rule #1 for contracts is, “Don’t do business with crooks.”

A client could hire a whole herd (flock? colony? troop?) of lawyers to prepare the finest contract known to humankind. If the counterparty is a crook, the likelihood of the finest contract working out well for the client is still not good.

Crooks gonna crook.

PG just trafficked in a stereotype about crooks.

As a general proposition, while making one’s way through life, it’s not a good idea to deal in stereotypes. Every large group of people includes some that may fit a stereotype commonly associated with the group and others who are much different than the stereotype. In an effort to avoid wrongly stigmatizing those who differ from the group, society rightly takes a somewhat dim view of many varieties of stereotypes.

However, stereotypes can be quite useful and are utilized by most people in one form or another on a regular basis.

Who would you trust more, a drug dealer or an elementary school teacher?

There you go, stereotyping drug dealers.

Long ago, PG learned to be more careful about relying on the statements of a prospective client who was in prison than a prospective client who walked into his law office off the street. Are innocent people sometimes incarcerated? Absolutely. Are most people in prison innocent of a crime? Not really. Are most people really, really, really anxious to get out of prison and willing to do almost anything to achieve their goal? Pretty much.

Do common business standards and practices vary from occupation to occupation? Is an auctioneer expected to be more or less reliable when talking about the value of a piano being sold than a professional appraiser? Is there an unwritten code of conduct for auctioneers that affects their view of appropriate behavior when trying to sell something?

This is a long-winded introduction to PG’s concerns about agents and traditional publishers.

From a purely economic standpoint, an agent needs a good relationship with a handful of acquiring editors working at a small group of publisher much more than an agent needs a good relationship with an author who is mid-list or below in the publishing hierarchy.

Publishers who will pay a $100,000 advance for a science fiction novel are far rarer than science fiction authors are. This and other economic realities strongly influence the behavior of agents.

Looking at what’s really happening in an agent’s life, it would make more economic sense for the agent to work for and receive a commission from a publisher for locating a salable author than to pretend the agent works for the author and puts her interests first before the publisher’s.

This brings PG to customs of the trade.

Many years ago, PG learned about customs of the New York City garment industry while representing a client who manufactured and sold boatloads of inexpensive jackets. Some of the customs of the trade in the garment business were identical or similar to standard commercial law and others were much different. Those who regularly did business in the garment industry were far more concerned with applying the customs of the trade instead of anything the state legislature had ever written.

In this respect, the customs of the trade in New York City bore some resemblance to what was sometimes called “The Law of the Hills” in the Ozark Mountains of Southern Missouri and Northern Arkansas.

In some cases, juries were more influenced by the Law of the Hills than they were by The Revised Statutes of Missouri or anything the judge might say about the case. While the state law might look askance at a husband beating up his wife’s lover, the Law of the Hills permitted such actions as long as nobody was permanently crippled.

PG posits that the customs of the traditional publishing trade, including the customs of the literary agency trade have created an environment in which an agent can do far worse things than fail to forward payment the agent receives for royalties from Russian sales to an author. The author’s never going to know and such an action won’t harm the agent’s reputation with HarperCollins even if someone at HarperCollins finds out about it.

When faced with a choice between promptly paying every penny of royalties due to an author and keeping the doors of the agency open, the customs of the agency trade dictate that the survival of the agency is paramount. An agent will make the same decision once, twice, three times — as many times as it takes to survive.

Thus, an otherwise honest and honorable group of people can be lead down a path that ends in systematic and large criminal diversion of funds away from authors and into agents’ pockets. PG’s gut tells him that this has happened at a great many agencies, both small and large.

It’s a custom of the trade.

Agents, Big Publishing, Kristine Kathryn Rusch, PG's Thoughts (such as they are)

18 Comments to “Learned Helplessness”

  1. PG, with respect, it’s not a “herd” of lawyers. I submit the following:
    a pleading of lawyers
    an objection of lawyers
    an esquire of lawyers
    a tort of lawyers
    a competency of lawyers
    a brief of lawyers (this is not to be construed as Lawyers in Briefs)

    Take your pick.

  2. Poor KKR is being called names …

    Of course they are calling her names, she’s pointing out things they don’t want pointed out and they can’t counter without sounding like the fools they are.

    Keep going KKR, by their responses you will know them (and post them so we might know them as well! 😉 )

  3. Very well put, PG.

    I used to use the “Don’t do business with crooks” line in corporate America (my companies were always Bambi vs Godzilla). You can’t count on the goodwill of the contractee since the original dealmaker might not last, so you have to have legal protections, but all the lawyers in the world couldn’t save you from an immoral corporate culture on the other side.

    Even when you won the lawsuit battle, you would lose the war as they disbanded and slithered away to judgment-proof land.

    I avoided some tar-baby traps in my life, and was sucked into a couple of others, but it’s a valuable lesson. If the deal smells bad, if the guy smells bad, if his company smells bad — don’t hold your nose and move forward. Run for the hills.

  4. It occurs to me that the issue of agents seems to mirror the issue of politicians (at least in the USA – apologies to the rest of the world). Even when people can admit agents (or politicians) are, on the whole, useless, they always want to exempt their own from the conversation.

    “Sure agents are unlicensed middle men who add nothing of value! Well, except mine – he’s AWESOME”

    or

    “I agree everyone in Congress needs to be thrown out on their ear and replaced – well accept my representative, she’s the only ‘good’ one!”

  5. If anyone is interested, here is the original article Rusch was talking about
    http://www.jimchines.com/2018/05/ruschs-on-agents-embezzlement/

    • Lovely bunch of commenters he has there. I like his update that said she responded to him on twitter saying “I am on an anti-agent crusade” without including the rest of her tweet which explained WHY. I bet many of those reading it never bothered to click through.

  6. I had an agent for a few years. They didn’t sell any of my novels, and they were actually unwilling to disclose where they had submitted them, claiming they were unable to pull that out of their database. When I offered to teach them – having extensive experience with the program they were using – they declined.

    Since they didn’t sell anything, there was no chance of taking money from me. You’d think they didn’t do damage, in that case.

    Actually, they did.

    I stopped writing novels in English for all those years, because part of the contract stipulated they’d farm out my English-language books to a partner agency, which would then take their cut, my agency would take their cut, and I’d end up paying 25% to agencies.

    I finally ditched them when I realized I wanted to write whatever *I* wanted. As you can see, most of my self-published books are in English… it is quite simply the bigger market. And I would have started self-publishing much earlier if I hadn’t been bound by that agency.

    I like being in control, for what it’s worth. I still have much to learn. But I would not go back to using an agent for practically anything…

  7. “When faced with a choice between promptly paying every penny of royalties due to an author and keeping the doors of the agency open, the customs of the agency trade dictate that the survival of the agency is paramount. An agent will make the same decision once, twice, three times — as many times as it takes to survive.”

    This, just this really. An excellent summation.

    Now feeling glad I was turned down by several agents. Having Read KKR, if I ever need to deal with a publisher I will use a lawyer for the contract.

  8. PG’s Rule #1 for contracts is, “Don’t do business with crooks.”

    One of the red flags in negotiations (of any sort) is if the other side is too agreeable to accept contract provisions without argument or modification, even if these provisions are NOT in the other side’s best interests.

    They agree to them because they know they’re gonna blow you off/rip you off/flip you off.

  9. This 100x:
    “Looking at what’s really happening in an agent’s life, it would make more economic sense for the agent to work for and receive a commission from a publisher for locating a salable author than to pretend the agent works for the author and puts her interests first before the publisher’s.”

    Why would an agent play hardball for a debut author and risk alienating themselves with the Big 5, whom their livelihood depends on?

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