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“But I’m Not a Lawyer. I’m an Agent.”

4 April 2019

From The Audacity of Despair:

Just over a quarter century ago, when I was a young scribbler traipsing around the metro desk of the Baltimore Sun, I had an early opportunity to learn a lesson about money, about ethics, about capitalism and, in particular, about the American entertainment industry. And Dorothy Simon, she raised no fools. I only needed to learn it once.

I learned about something called “packaging.”

And now, finally, my apostasy from newspapering having delivered me from Baltimore realities to film-set make-believe, I am suprised and delighted that many of the fellow scribblers with whom I share a labor union have at last acquired the same hard, ugly lesson:

Packaging is a lie. It is theft. It is fraud. In the hands of the right U.S. Attorney, it might even be prima facie evidence of decades of racketeering. It’s that fucking ugly.

For those of you not in the film and television world, there is no shame in tuning out right now because at its core, the argument over packaging now ongoing between film and television writers and their agents is effectively an argument over an embarrassment of riches. The American entertainment industry is seemingly recession-proof and television writing, specifically, is such a growth industry nowadays that even good and great novelists must be ordered back to their prose manuscripts by book editors for whom the term “showrunner” has become an affront. A lot of people are making good money writing television drama. And so, this fresh argument is about who is making more of that money, and above all, where the greatest benefits accrue.

. . . .

Here is the story of how as a novice to this industry, I was grifted by my agents and how I learned everything I ever needed to know about packaging.  And here is why I am a solid yes-vote on anything my union puts before me that attacks the incredible ethical affront of this paradigm. Packaging is a racket. It’s corrupt. It is without any basis in either integrity or honor. This little narrative will make that clear.

. . . .

To begin, I wrote a book. It was a non-fiction account of a year I spent with a shift of homicide detectives in Baltimore, a city ripe with violence and miscalculation. Published in 1991, “Homicide: A Year on the Killing Streets” was repped by my literary agent at the time, an independent attorney who I found because his other clients included some other ink-stained newspaper reporters. Late in 1987, the Baltimore Police Department agreed to let me into its homicide unit for a year beginning that January, so I needed to quickly acquire an agent to sell the project to a publishing house and secure an advance on which to live while I took a leave-of-absence from my newspaper. This agent — and damn, I wish I could name the goniff, but I later signed a cash settlement that said I wouldn’t — was the first name that came to me. I did not shop around; I was in a hurry.  My bad.

Three years later, with the book ready to publish, this shyster suggested to me that he was entirely capable of going to Hollywood with it for a sale of the dramatic rights. And knowing less than a bag of taters about Hollywood, I was ready to agree until my book editor, the worthy John Sterling, then helming the Houghton Mifflin publishing house, told me in no uncertain terms that this was a mistake.

It was customary, John explained, for even the best literary agents to pair with a colleague at one of the bigger entertainment agencies and split the commission.  My literary agent would give up half of his 15 percent to the other agency, but he would gain the expertise of an organization with the connections to move the property around and find the right eyeballs in the film and television industry. So I called my agent back and insisted.

With some initial reluctance, he eventually chose to go with Creative Artists Agency — one of the Big Four, as they call the largest entertainment entities repping talent, and an agent in CAA’s literary division by the name of Matt Snyder.  After making the deal with CAA, my literary agent called me back and said it was customary for me to give up a larger percentage commission as I now had two agents working on my behalf.  How much more? He suggested that he should keep his 15 percent and I should pay CAA an additional 10 percent. So a quarter of the profits from the sale of book would now be siphoned to agency commissions.

I called back John Sterling and asked:  Is this right?

John nearly dropped the phone. No, that is not how it works. Again, he explained that my literary agent was supposed to split the existing 15 percent commission on the book with CAA. The literary agent was supposed to keep 7.5 percent and give the other half to CAA, which in no way was entitled to any cash above and beyond that split.

I called my agent back. No, you split the existing 15 points, I told him. He threw a few chunks of pouty guilt at me, but I shrugged him off. This first attempt at a grift should have warned me, but hey, I was young.

. . . .

Then the contract comes back from Baltimore Pictures and while it’s all found money for a police reporter and rewrite man who’s working for union scale at The Sun, I check with some other authors who have sold stuff to Hollywood and they all acknowledge it’s on the low-end of where such offers usually reside.  Fine for the option money, a little light on the contingent pilot, pick-up and episodic payments and, of course, farce on the definition of net profits.  So I call Matt Snyder back and say so: This seems a little light and it’s a first offer. Let’s go back to Levinson with a counter.

And Matt Snyder of CAA acts as if his client, me, has just thrown a dead, rancid dog on the table. This is my first book sale to Hollywood and Barry Levinson is an A-lister; I should be grateful for this offer and worried that if I nickel-and-dime, Levinson may develop something else for his first television series. Reluctantly, as if he is being asked to traverse a vale of danger and uncertainty, Snyder eventually agrees to go back and see if he can’t get, maybe, a bump in the per-episode royalty, maybe $250 an hour. He’ll fight for me. He’ll see what gives. And sure enough, the per-episode fee goes up by 10 percent after Snyder, relentless carnivore that he is, returns to his client with pride and some pocket change.

. . . .

Then I asked another question: “Jake, do you have any written consent from me on file in which I authorize you to rep both sides of the sale of my book? I will answer that for you: You do not. I never authorized this. Not to CAA. Not to my book agent. I never gave informed consent. I couldn’t. Because I was never informed.”

Had CAA, in fact, returned the 7.5 percent of my commission?

They had — to my book agent, who pocketed it. Quietly.

. . . .

“Matt — absent any evidence of informed consent by me — that you and CAA proceeded to negotiate with Barry Levinson, whom you also represented, is a prima facie conflict-of-interest and a breach of fiduciary duty. If you were a realtor secretly representing both sides of a house sale, your license would be torn up. If you were a lawyer, you’d be disbarred.”

There was only a small pause before he explained himself:

“But I’m not a lawyer. I’m an agent.”

Link to the rest at The Audacity of Despair

Agents

11 Comments to ““But I’m Not a Lawyer. I’m an Agent.””

  1. Solution: don’t sign a flat fee agency agreement with your agent. Instead, demand 10% of any and all fees he receives in any package. Done.

  2. Everyone should read this.

    I’ve heard about problems in this area, but never in sufficient detail for it to make sense to me. This fixes that.

  3. “But I’m Not a Lawyer. I’m an Agent.”

    Then you are of no use to me.

  4. Enlightening, but not surprising, which is sad. Once a behavior becomes entrenched, people forget that maybe it’s not right, that maybe it’s not even on the right side of legal. Ethics don’t even come into it at that point, because no one gives it a passing thought.

  5. When are people going to learn: agents are not your friend.

  6. “But I’m not a lawyer. I’m an agent.”

    Be afraid. Be very afraid.

  7. Richard Hershberger

    A heartwarming story of an editor at a large publishing house protecting a novice writer.

    And yes, do your homework before hiring an agent. Similarly with lawyers, doctors, and plumbers.

    • Felix J. Torres

      Main difference is that with doctors, lawyers, and even plumbers, there are oversight organizations to resort to if you are wronged.

      Has anybody sued a literary agent (other than for outright embezzlement)? Say for breach of fiduciary duty, malpractice, self-dealing, double-dealing…

  8. Terrence OBrien

    The agent problem is easy to fix. Let’s have 90% of authors stop writing stuff. That would change the supply available to publishers, and they would no longer have the market power to demand authors go through agents. Publishers would be competing for authors instead of the current situation where authors compete for publishers.

    • As usual, you are completely misreading the situation. 90% of authors are writing stuff that nobody wants in any case. The supply available to publishers is mostly junk. As Kristine Kathryn Rusch and Dean Wesley Smith (among many others) like to point out, you don’t in fact need an agent to deal with a publisher. Therefore, publishers do not have the market power to demand that authors use agents, and you are proposing a solution to a nonexistent problem.

  9. I’m not aware of the US Federal or State statute involved but this seems to be a very clear breach of fiduciary duty and of outright fraud. I’d be surprised if the conduct complained of does not constitute a serious criminal offence. Even if not, it is regrettable that the author concerned settled rather than sued, though I certainly understand why he would choose to do so.

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