Scammers Impersonating Reputable Literary Agents

From Writer Beware:

I’ve written about this new “beware” twice already (you can see those posts here and here), but it appears to be a growing problem, so I want to put out a more focused warning.

Scammers–the same Philippines-based Author Solutions copycats that I’ve featured numerous times in this blog (also see the long, long list in the sidebar)–are impersonating reputable literary agents and agencies in order to bamboozle writers into buying worthless “services.” Here are the misused names I’ve documented so far; the scam companies they work for are in parentheses:

– Jennifer Jackson of the Donald Maass Literary Agency (TechBooks Media)

– Victoria Marini of the Irene Goodman Literary Agency (Writers Desks)

– Danielle Burby of the Nelson Literary Agency (Writers Desks)

– Nelson Literary Agency (some guy calling himself Jason Smith, Book Scout, with a fake Nelson Agency email address)

. . . .

These approaches are followed by opportunities to spend large amounts of cash. For the Jennifer Jackson scammer, it’s a “review” of your book plus “book insurance and returnability” for a total of $1,400. For the Victoria Marini scammer, the video trailer she’s shilling for “promotional” purposes costs $3,000 (an amazing discount!) For the Danielle Burby scammer, it’s “Submissions to Traditional Publishing Companies” by “Book Scouts” for the wallet-squeezing sum of $5,000. 

Link to the rest at Writer Beware

PG usually doesn’t include live links in the OP’s he excerpts, but made an exception due to the potential danger of these types of operations to overly-credulous authors and other creatives.

PG has received other reports of scam publishers or author service companies, perhaps because some of the crooks have realized that a lot of people are being forced to stay at home and some have decided to write a book.

As a general proposition, PG suggests that your fraud phaser should be permanently set to stun (at a minimum) during these times.

If you want help with your writing, in the US, sign up for a writing class at your local community college (not one that’s just popped up). It shouldn’t cost you much.

Twitter Misbehavior by agents

From Janet Reid, Literary Agent:

One comment that popped out was from Nicole:**

Twitter Misbehavior

This could be an entire comment/article unto itself, but it’s really demoralizing to see agents taking to public-facing Twitter to complain about their day-to-day. 

Every industry has crappy aspects you complain about with your coworkers, but you do it at the water cooler or in a private Slack. You don’t take to Twitter where your potential clients and current clients can see you. 

Watching agents subtweet honest mistakes on queries, give air to the trolls in their inboxes, blame writers for daring to get an offer on a manuscript they’ve left sitting in their inbox for months and months and then not notifying them (b/c of the NORMAN expectation, but only sometimes) or not giving them long enough to read (despite giving the industry standard of 10 days to 3 weeks)—it’s exhausting and feels so much like a punch-down. 

This also applies to agents always complaining about how busy they are for such little money; newsflash to them, what do you think writers do before they’re signed? 

We work for years just trying to get to an agent inbox, with no money, no professional input, no expectation of anyone giving a damn for quite possibly decades. 

Writers have 2, 3, 4, and more jobs alongside their writing and are told to “take their complaints to the group chat” by agents who don’t bother to do just that. We work for pennies, too. I know working on commission isn’t great when you start, but it’s what you signed up for, right?

I could go on and on, but it’s the hypocrisy, the punch-downs, the subtweets, lack of centralization, and the non-responses, mainly.

Amen!

I think one of the reasons this behaviour has gone unchecked is no one calls them on it.

Writers don’t — they’re terrified of being blacklisted, or burning bridges.

Agents don’t  — they don’t want to burn bridges either or alienate people we might have to work with down the road. Publishing is a small small industry, and if you don’t know everyone, it’s cause you haven’t been here forever like the rest of us.

Link to the rest at Janet Reid, Literary Agent

We Need Diverse Agents

From Publishing Perspectives:

In a game of “getting warmer,” the publishing industry has been slow to recognize that in order to widen its consumer base, it needs to represent consumers in its own ranks. As a demographic, black women are one of the fastest-growing consumer groups for books, but according to the 2015 Lee & Low study “Diversity in Publishing,” only 4% of publishing employees are black. If you look specifically at acquiring editors, you’ll find that number is likely even smaller.

With nearly 80% of the industry identifying as white, straight, and able bodied, is it any wonder that so many stories sound the same? Calls for more diverse characters, authors, and stories are great. There’s a step further that must be taken, however; we need to make changes to the gatekeepers. As Kacen Callender rightly pointed out in their Publishers Weekly article, “We Need Diverse Editors,” sometimes stories weren’t written for the people we have guarding the house.

The need for representation in all aspects of publishing is clear. In order to get an editor, books need to be represented by agents—so it stands to reason that the industry needs diverse agents, as well. Publishing already has some amazing agents of color who you can learn more about via litagentsofcolor.com. But few agencies have more than a handful of agents that stray outside the industry’s typical demographic. Though many publishing houses and agencies claim to implement “diversity initiatives,” they often fail to address the true barriers to entry that exist—and they don’t take actionable measures to ensure that the people they do hire have opportunities to advance.

As a standard practice in the agenting world, agents and assistants work very closely together, both figuratively and literally. In hiring for a position that requires a great deal of subjectivity, agents often look for people with whom they share a connection; they want those who will view books the same way they do. Unfortunately, that is often focused through a white, heterosexual, able-bodied lens.

Link to the rest at Publishing Perspectives

While recognizing that there are good and bad agents, PG doubts there is much of a future for diverse or non-diverse agents coming into the business these days.

He has no problem with the artistic and business advice services good literary agents provide nor with the access to editors at traditional publishers they also offer.

In PG’s experience, author/agent problems arise from the following elements of the business relationship:

  1. Agency contracts and royalties extend forever (life of the author plus 70 years in the US) because they piggyback on the publishing agreement the agent acquires for the author and typical publishing agreements from traditional publishers extend for the life of the author’s copyright. The agency agreements are almost never tied to the services of a particular agent, someone the author knows and trusts, the reason the author signed with the agency. When that agent dies or retires, someone new will inherit all the rights and powers the author granted to the original agent s/he relied upon and trusted.
  2. Agencies usually receive the royalty statement and the entire royalty check traditional publishers send out twice per year. Some agencies never provide copies of the publisher’s royalty statement to their authors. Some agencies never tell the author the exact amount of the royalty check(s) received. Some agencies don’t immediately tell the author when the royalty statement/check arrive. Unfortunately, some agencies keep part or all of the royalties the author should be receiving.
  3. Anybody can become a literary agent. There are no state or federal licensing requirements with accompanying rules/standards with which an agent must comply. Someone can walk out of prison (or a drug rehab facility) one day and open a literary agency the next day. A literary agent can be indicted for fraud and continue to accept new clients and receive royalty checks for large amounts of money. PG is not aware of any government entity that is tasked with regulating or auditing literary agents.

Again, PG has no complaint against the knowledgeable, honest and hardworking agents that are scrupulously careful with their clients’ money and artistic future. He merely points out that, based upon his long observation of human behavior, where there is an opportunity for a person to abuse a relationship of trust, a small percentage of people will eventually abuse that relationship to the detriment of the person who trusts them.

Lawyers can be disbarred (and a few richly deserve that treatment). Accountants can have their professional certifications and licenses terminated. Medical licenses can be revoked. Some states require that manicurists and pedicurists (“Nail Technicians”) be licensed and those licenses can be terminated.

Literary agents? Nada.

How to Read a Book Contract – Somebody’s Gonna Die

Per a request in the comments, from an earlier post on The Passive Voice

Let’s assume you are an author represented by a literary agent. If Passive Guy asks you who your agent is, you’ll respond with something like “Suzanne Jones” or “James Davis.”

Passive Guy is certain Suzanne and James are wonderful people, but they’re going to die.

This is not a threat, simply a statement of biological reality.

Who will your agent be after Suzanne dies? Will it be someone you choose or not?

You selected Suzanne because she had a great reputation for helping authors build good long-term careers. Your career isn’t built yet. Who’s going to help build your career if she’s gone?

These are not hypothetical questions. One of the comments to a recent essay about agents by Kristine Kathryn Rusch described the story of Ralph Vicinanza, a literary agent for Stephen King, the Dalai Lama and others, who died in September, 2010, at age 60.

Here’s a bullet-point description of what has happened since Mr. Vicinanza’s death, according to the comment (which fits with other accounts PG has found):

  • The other two agents in the Vicinanza agency quit their jobs
  • A letter was sent to all authors advising them to find other agents and promising to continue to pay royalty checks
  • The executor of the Vicinanza estate intends to keep receiving payments from publishers and collecting agency fees from the authors
  • Other agents are asking Vicinanza authors for more than 15% to handle titles the Vicinanza agency handled, presumably because the estate will claim the first 15%

Contracts with a large organization should differ from those with an individual or small organization. A large organization, like a big publisher, is not going to disappear. It may go bankrupt or be sold, but it will have enough value so someone is likely to keep it running in some form or fashion.

However, if somebody in a large publisher dies, another person will replace the dear departed and business will continue as usual. An author has a relationship with a big publisher because the publisher can jam a lot of books into bookstores, airports, Wal-Mart, etc. The jammers may change, but the jamming continues. (PG knows about author/editor relationships, but you can hire an editor without hiring Random House.)

In a small organization, like a literary agency, a death of an individual can result in the death of the agency. PG would suspect many of the clients of Mr. Vicinanza’s agency signed the agency contracts because of Mr. Vicinanza, and quite possibly, only because of Mr. Vicinanza. PG would have signed if Mr. Vicinanza promised to turn him into another Stephen King.

It appears the executor of Mr. Vicinanza’s estate is his sister, Louise Billie. Passive Guy did a quick Google search and couldn’t find any evidence that Ms. Billie is a literary agent or has any experience in that business. Yet, under the agency’s contracts with authors, Ms. Billie, acting on behalf of the estate, is handling royalties and, presumably, retaining 15% plus, perhaps, expenses.

What’s the contractual solution to problems like this? It’s much simpler than stating the problem.

If the services of a particular individual are a key value to you, include a provision in the contract that gives you the right to terminate the contract:

  • if that person dies,
  • becomes disabled and unable to perform his/her normal work, or
  • leaves the agency for any reason

As far as what happens to the agency percentage on book contracts the agent negotiated while alive or working at the original agency, PG would push for a provision that says those end when your agent goes.

A possible compromise would be that the agency percentage continues to be paid to the agency for one or two years after termination, but PG doesn’t like that because, at least according to the hypothetical value proposition of an agent, the agent’s services are continuing and overlap from book to book. The work an agent puts into your third book also enhances sales of books one an two.

The Vicinanza experience demonstrates that other agents are not willing to accept authors under standard compensation terms if they have to share compensation.

If agents boohoo about this, Passive Guy would simply point out that, if an attorney dies, the attorney is entitled to fees earned up until he takes his last breath and no more. A client is always free to hire another attorney at any time, whether the attorney is alive, partly dead or all the way dead.

Someone is bound to ask why the author should receive royalties forever while the agent who negotiated the publishing contract doesn’t receive agency fees forever.

The answer is that when the author wrote the book, she created an asset, recognized under copyright law, that will exist for a long time and is capable of generating income in a variety of different ways over its lifetime, some of which are recognized today and others of which won’t be conceivable for another 50 years.

The author owns the asset, the agent does not. The agent was paid for a service provided. PG would argue if the ongoing services of a particular agent were the key value to the author, when those services are no longer provided for any reason, the author shouldn’t be required to make any additional service payments.

How to Read a Book Contract – Agency Coupled with an Interest

A reprise of an earlier PG post about Agency Contracts per the request of a couple of visitors to TPV.

In an earlier post showing an Author/Agent agreement, the sample clause included a claim by the agent that the 15% fee was “an agency coupled with an interest.”

This term has rightly caused concern among many authors. Done right, an agency coupled with an interest could well give an agent a piece of the copyright to the author’s book or books and could make the agency agreement irrevocable.

However, we have an opinion from the Supreme Court of New York County, New York, on this very topic based upon an agency clause that appears to be very similar to the one we reviewed yesterday. (A quick explanation about New York state courts – unlike almost every other state and the federal court system, the “Supreme Courts” in New York are the trial courts. This decision is currently being appealed to the New York State Court of Appeals, but if PG were a betting man, he would bet the appellate court will confirm the trial court’s decision.)

Here are the facts:

  1. Beginning in 1996, the Peter Lampack Agency (PLA) represented Martha Grimes, mystery novelist supreme.
  2. Ms. Grimes earned over $12 million during the 12 years PLA represented her.
  3. PG assumes that PLA never had an Agency Contract with Ms. Grimes because they didn’t talk about it in the lawsuit they filed later.
  4. In 2005, PLA negotiated a four-book agreement with Penguin.
  5. The 2005 Penguin contract included an Agency Clause very similar to the one we discussed yesterday.
  6. The Penguin agreement included an “option” – basically a right to negotiate – for Ms. Grimes’ next book.
  7. In 2007, Ms. Grimes fired PLA and hired another agent.
  8. In 2009, Ms. Grimes’ attorney sent Penguin the manuscript for The Black Cat and later signed a publishing contract for that book.
  9. PLA sued Ms. Grimes, Penguin and a bunch of Penguin subsidiaries, claiming it was owed agency fees on The Black Cat and other books of Ms. Grimes published by Penguin, based on the 2005 option clause and the fact that other books of Ms. Grimes were published under “extensions” of contracts PLA had negotiated before it was fired which contained standard agency clauses.

Here’s the version of the PLA agency clause the court included in its opinion:

The Author hereby appoints [PLA] irrevocably as the Agent in all matters pertaining to or arising from this Agreement . . . . Such Agent is hereby fully empowered to act on behalf of the Author in all matters in any way arising out of this Agreement . . . . All sums of money due the Author under this Agreement shall be paid to and in the name of said Agent . . . . The Author does also irrevocably assign and transfer to [PLA], as an agency coupled with an interest, and [PLA] shall retain a sum equal to fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement.

Ms. Grimes’ attorneys argued that she owed nothing because she terminated the agency relationship with PLA in 2007 and contended that PLA did not have an agency coupled with an interest.

The Court ruled on a Motion to Dismiss and Ms. Grimes was a big winner. Winning on a Motion to Dismiss is the trial attorney’s equivalent of a slam dunk right in the face of opposing counsel. Essentially, it means the judge concluded PLA had no case on most of its claims.

The Court’s opinion first stated the general rule that an agency for no definite term is revocable at will. The court then stated the second rule that when an agency authority is coupled with an interest, it becomes irrevocable. PG will spare you a lot of legalese, but the following is from the opinion:

An agency is coupled with an interest where, as a part of the arrangement with the principal, the agent receives title to all or part of the subject matter of the agency. . . .

[t]o make the power irrevocable, there must be an interest in the subject of the agency itself, and not a mere interest in the result of the execution of the authority . . . .]). Words alone are not enough to establish an agency coupled with an interest.

What does this mean?

In order to have an “interest,” the agent probably has to have a claim on the copyright to the book itself, not a claim against the stream of income generated by licensing a publisher to publish the book. The words in the agency clause stating that PLA had “an agency coupled with an interest” were insufficient to give it such an interest.

The words in the agency clause stating, “The Author hereby appoints [PLA] irrevocably as the Agent in all matters pertaining to or arising from this Agreement,” did not create an irrevocable agency agreement.

Since PLA did not have an agency coupled with an interest, its agency was revocable at will. PLA was not entitled to a commission from monies earned under publishing agreements made after its term as an agent had ended.

PLA argued that the language giving it the right to “fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement,” meant that, in addition to monies generated by the original four-book contract, it also had the right to monies generated under the option clause.

The Court found this language did not specify that PLA would receive a commission from the new publishing agreement made after the Agency’s termination. The option clause was not an agreement. The agreement for The Black Cat was separate from the original contract.

As to the claims that PLA was entitled to commission under other agreements that were “extensions” of those negotiated by PLA, the Court used the same reasoning to deny those claims.

PG will note that Penguin got dragged into this litigation because of the Agency Clause it permitted to be inserted into the publishing contract.

As mentioned, the case is under appeal and it will be awhile before the appellate court hands down its opinion.

We learn three things that one New York judge in one court believes about Agency Clauses:

  1. A contractual claim to commissions based on future publisher royalties is not the same as having an “interest” in the book, which is the subject matter of the agency.
  2. Stating an agency is “irrevocable” has no effect whatever in the absence of a specific interest in the book.
  3. Stating that the agent has an “agency coupled with an interest” does not prevent the author from terminating the agency at any time.
  4. Once the agency is terminated, the agent has no claim against royalties paid under later contracts absent a specific contractual clause to that effect.

Here’s a link to the court opinion.

Agency Clauses

Based on some questions from clients, PG thought it might be a good idea to republish this earlier post he wrote and published here several years ago.

Agency Clauses

An agency clause may be inserted into a publishing contract between an author and a publisher. In essence, a typical agency clause provides that the agent may receive royalty payments on behalf of the author and has authority to act in the name of the author with respect to the contract.

Here’s an example:

All sums of money due to the Author under this Agreement shall be paid to the Author’s agent, Annie Agent, of 321 Applesauce Avenue, New York, NY 10023, U.S.A. (hereinafter called “the Agent”) and receipt by the Agent shall be a good and valid discharge of all such indebtedness and the Agent is hereby empowered by the Author to act on the Author’s behalf in all matters arising in any way out of this Agreement.   For services rendered and to be rendered the Author does hereby irrevocably assign and transfer to the Agent the sum of 15% (fifteen percent) as an agency coupled with an interest out of all monies due and coming due to and for the account of the Author under this Agreement.

To understand this beast, you need a teensy bit of legal background info. (I promise this won’t hurt too much.)

Since the agent doesn’t usually sign the publishing contract, the agent is a Third Party Beneficiary of the contract.

The classic Third Party Beneficiary example is a life insurance policy. Grandpa George buys a life insurance policy for $100,000 from Cornpone Mutual when he’s only Pa George. He names his three chillun, Bo, Lucille and Little George, as the beneficiaries. (Hint)

Grandpa George pays all the premiums on time, but gets careless around the hay baler one day and goes to meet his Maker. In pieces. The chillun tell Cornpone Mutual it’s time to pay up, but Cornpone says its policies do not cover hay baler accidents.

The parties to the life insurance policy are Grandpa George and Cornpone Mutual. The chillun never signed anything. Indeed, if they were under 18 at the time the policy was purchased, they were legally unable to enter into contracts.

The usual rule is that only parties to a contract can sue for enforcement or damages. This raises a problem. Grandpa George was a good man, so there are very few lawyers in the place where he has gone. There is also no email and Fedex guys who take packages there never return.

The children were named in the insurance policy, however. Although they didn’t sign, they are Third Party Beneficiaries so they can sue Cornpone Mutual in their own names.

Outside of a few clearly-defined fields, Third Party Beneficiaries are quite rare in the business world. When Passive Guy was practicing law, he would negotiate dozens of contracts with nary a Third Party Beneficiary in sight. The standard practice was to have everybody sign the contract if they had any rights under the contract.

However, in the wild and wacky world of publishing, agents are Third-Party Beneficiaries to a lot of publishing contracts. As will become clear during our discussion, Passive Guy thinks Agency Clauses only benefit the agent and can cause problems for both the author (obviously) and the publisher (don’t know if they’ve thought much about this).

So, in general terms, what does the presence of an agent as third-party beneficiary to a publishing contract mean? This is a weird area of the law, filled with lovely Latin phrases, serving primarily to fill out the semester in a Contracts Law class (which is one reason to have everybody sign the contract). PG will boil it down into fundamentals as they relate to an Agency Clause.

  1. If one or both of the parties to a contract violate the terms of the contract to the detriment of the Agent, the Agent can sue to enforce the contract.
  2. The Agent’s rights are subject to the terms of the contract.
  3. The Author and Publisher have obligations to the Agent to perform under the terms of the contract.

Isn’t this fun? Don’t you wish you could be a Third Party Beneficiary too?

Before we go further, let me make clear that Passive Guy is not anybody’s lawyer anymore. As much as he may love and admire you, PG is not your lawyer. Most publishing contracts will have a clause saying New York law applies to the interpretation of the contract. PG is not a New York lawyer either. Any legal discussions will be general in nature and New York or other state or federal laws may conflict with PG’s generalities. Hire your own lawyer if you want legal advice.

So, let’s start dissecting the Agency Clause so see where we have some wiggle room. Some agents just use an Agency Clause without a separate Agency Agreement between the Author and Agent. Our analysis will assume this is the case. If there’s a separate Agency Agreement, things can become much more complicated.

Passive Guy wants you to see this clause through PG’s magic contract vision glasses.

What does Passive Guy’s super-power vision see here?

1. Purple highlights – Unsurprisingly, the Agency Clause is about money only. Potential benefits or compensation other than money are not covered by this clause. Something that could be easily converted to money or is a money equivalent – a Visa gift card, for example – might be covered. PG is assuming “money” is not a defined term in the Publishing Contract. (For you persnickety types, super-power vision is not perfect. The purple “an” is a mistake.)

2. Blue highlights – Only money payable to the Author is covered. Money payable to other people or entities is not covered. The assignment clause, if any, in the Publishing Contract would make for interesting reading.

3. Yellow highlights – The Agent is authorized to act on Author’s behalf. In the oh-so-ever-humble opinion of PG, this gives rise to the classic obligations that an agent owes to a principal. These include always acting in the principal’s best interests, disclosing conflicts of interest, etc., etc.

Arising in any way out of the Agreement is broad.

For services rendered and to be rendered is interesting in light of the Ralph Vicinanza agency matter discussed previously. This implies an ongoing stream of services and is specifically worded as consideration for the ongoing 15% agency fee. If no more services will be rendered, there’s an argument no more agency fee should be paid.

4. Green highlights – PG never likes irrevocable agreements where one party is providing services to the other. The services may start out just fine, but if they go bad, you want to be able to stop paying for them.

If this is the only written description of the Agent’s agreement with the Author, then no term – time period – for the agency exists. It’s not one year or five years or a hundred years. Generally speaking, an agency agreement that doesn’t have a term is revocable at will by the principal.

Agency coupled with an interest is an agency in which the agent has an interest in the property regarding which he or she is acting on the principal’s behalf. PG has another post on this ominous-sounding term coming out tomorrow, but, for our discussion today, essentially, it means the same thing as irrevocable. It’s a belt-and-suspenders approach to try to keep the Author from revoking the agency agreement. Absent a separate document actually describing the interest of the agent, it probably doesn’t add much.

5. Red highlights – Payments to the Author under other agreements, even other agreements with this particular Publisher, are not covered by the Agency clause.

So, putting all this together, what do we have?

Following are a few (but not nearly all) possibilities:

1. The Agent is empowered to act on the Author’s behalf respecting this Agreement, but nothing prohibits the Author or someone else – an attorney or agent – from also acting on behalf of the Author. The Agent doesn’t have an exclusive right.

2. All the Agent’s rights are tied to this specific Publishing Contract. New or separate agreements are not included. If the original agreement includes options for additional books in a series, PG thinks there is a good argument that if the Author insists on a separate agreement for subsequent books, the Agency Clause in the first agreement would not necessarily give the Agent a commission on subsequent books. (Again, we’re not dealing with situations in which there is a separate Agency Agreement.)

3. Since everybody is bound by the Publishing Contract, if that Contract has an out-of-print clause, the Publisher can declare the book out of print and enter into a separate agreement with the Author for something like an enhanced and revised version of the original book. There will likely be many other clauses in the Publishing Contract that allow the Publisher to effectively terminate the commercial life of a particular book.

4. If the Author receives an ebook amendment or rider to the original contract, and the Author no longer desires to use the Agent’s services, the Author might want to insist on a separate Publishing Contract for the ebook. Under the terms of the Agency Clause, the ebook contract might not be commissionable.

5. PG is sure the attorney who first came up with the for services rendered and to be rendered language thought he/she had done a cool thing in providing for future consideration from the agent for future commissions. However, if future services by the Agent are not satisfactory to the Author and the Author terminates the relationship for that reason, this contract language strengthens Author’s argument that the Agent’s commissions should end.

6. If the Author gives the Agent specific instructions, preferably in writing, about what the Author wants the Agent to do or not to do respecting the Publishing Contract, PG believes the Agent cannot act contrary to the Author’s instructions unless the Author asks the Agent to do something illegal or totally ridiculous.

7. If there is a fight between the Agent and the Author based on the Agency Clause, PG thinks it quite likely the Publisher would be dragged into ensuing litigation, particularly if the fight was about a separate contract between the Author and the Publisher for which no commissions were payable. PG wonders why a Publisher would open itself up to this possibility when the Agency Clause provides no discernable (at least to PG) benefit to the Publisher.

Passive Guy will close this very lengthy post by admitting puzzlement and worry.

When PG heard these Agency Clauses described before he saw one, he expected to find a serious lock-down legal provision. Instead, there appear to be lots of holes in the one used to illustrate this post. Others PG has received for his Contract Collection (Thank You!) are almost identical.

The reason PG worries is whenever it appears too easy to get out of what’s supposed to be a tight contract, PG fears he has missed something big or obvious.

Since we have a large number of informed publishing veterans visiting The Passive Voice, let me know if I’m really off-base in my analysis.

Contract Collection

If you have a publishing contract you would like to share with PG, he would appreciate you’re forwarding a copy to him. You can feel free to blackout/whiteout/cover up the names of any individuals or publishers involved in the contract prior to sending the copy of the contract.

PGContracts@thepassivevoice.com

First, You Have to Write the Damned Thing.

From Medium:

I have a strategy for blogging that involves checking out Quora to see what questions people are asking.

I checked Quora this morning and saw this.

Good answer, Orson Scott Card. Good answer.

. . . .

It’s not even a chicken and an egg thing. You cannot publish what you haven’t written.

You can publish what you haven’t edited. You can publish what you haven’t tried to sell to a traditional publisher. You can publish long. You can publish short. You can publish poetry, blog posts, picture books, and 500,000-word tomes that would make literary agents insta-delete your query letter.

You can publish late — long after you should have just shipped that thing.

You can publish early — before your work is polished well enough to avoid being ripped apart in Amazon reviews.

You can publish pretty much anything.

But you cannot publish it until you’ve finished writing it.

. . . .

Let me say that another way. You cannot build a literary career out of files on your hard drive that you never let anyone read. Or out of half-finished stories that get abandoned every time a shiny new idea bites you in the ass. Or out of completed novels that you never feel are good enough for public consumption.

. . . .

If your goal is traditional publishing, then this isn’t actually a simple yes or no question. Being published is out of your hands. Or it will be, once you get brave enough to put your work out there into the hands that can get it done.

You’ll need to write a query letter and send it out to literary agents. Not one or two. Not a carefully selected list of ten. Once you know your letter is doing it’s job (it’s only job is to get an agent to request your work), then send that sucker out wide. To everyone.

Last summer I needed a new agent. Once my query letter was bringing in a ten percent positive response (one in ten agents asked to read the manuscript,) I sent it to more than 140 agents. I had seven offers to represent me. Which is mind-blowingly awesome. For a couple of weeks there, I felt like one of those movies that’s up for all the Academy Awards or something.

But the hard truth is that I had more than 130 rejections, too. I was getting rejections after the agent I went with sold my book.

. . . .

If you’re planning to go indie then you are the publisher. Publishing is 100% up to you. Which means you have the responsibility of creating the most professional work you can. It’s your job to hire an editor and a cover artist. It’s your job to position your book in the market place.

Link to the rest at Medium

When PG read the OP, he wondered how much time the author spent selecting 140 agents, preparing at least semi-personalized packages for each and reviewing responses which, hopefully, involved careful vetting of the agents who were interested in seeing her manuscript.

PG has received more than one agent horror story recently, so he’s particularly sensitive to that potential problem. Without going into detail, agents and literary agencies can and do change over time. An excellent agent from ten years ago can be a far less than satisfactory agent today. If the agent is receiving checks that include money the agent should be promptly forwarding to the author, “less than satisfactory” can make the author’s life extremely difficult.

At the Request of Their Union, Screenwriters Are Firing Their Agents

From The Digital Reader

An ongoing contract dispute is sending shockwaves through Hollywood, and it’s going to have an interesting effect on what stories get told on your favorite show.

Variety reported on Friday that the Writers Guild of America has called on its members to fire their agents. A months-long negotiation between the WGA and the ATA (Association of Talent Agents), the union representing agents, over revising a 43-year-old franchise agreement had broken down after the two organizations had failed to come to terms.

Over the past decade a number of the larger talent agencies had developed the practice of negotiating their own contracts with studios that created conflicts of interest between the agents and their putative clients.

. . . .

“In this situation there are two actions required of all members:  First, do not allow a non-franchised agent to represent you with respect to any future WGA-covered work.  Second, notify your agency in a written form letter that they cannot represent you until they sign the Code of Conduct.”

. . . .

The reason the WGA walked out of the negotiations is that the major talent agencies no longer serve the best interests of their writer clients. In some cases they have launched or invested in production companies, and in others cases they have negotiated production deals with studios. This means that when a writer’s agent sits down to negotiate a deal with a studio, the agent’s boss is effectively sitting on the other side of the table.

. . . .

In the book publishing industry, there is a strong sentiment that agents’ interests are more aligned with publishers than with authors. Robin Sullivan, Kris Rusch, and others have argued that agents won’t push for the best deal for an author because the agent values the long-term relationship with the publisher more.

Link to the rest at The Digital Reader

With respect to agents for authors in the traditional publishing business or the movie business, the point Nate makes in his last paragraph is absolutely true. An agent needs a good long-term relationship with a publisher/film studio more than an agent needs the same type of relationship with an author.

There are an essentially unlimited number of authors (although top-selling authors are a different matter) while the number of publishers willing and able to sign a book deal with a six-figure advance is much smaller and, thus, far more valuable because of its rarity.

A publisher (or more specifically, a senior editor who makes book acquisition decisions) with which an agent can sign 3-5 large contracts  per year is a highly-valued resource. If an agent can continue to do that for several years, he/she will be in an excellent financial position (absent substance abuse problems or a bad divorce).

On the other hand, a single author who is not a consistent multi-title top-10 NYT bestseller won’t make an agent nearly as much money over a 5-10 year period as an acquisition editor who likes the agent’s taste in book projects.

“But I’m Not a Lawyer. I’m an Agent.”

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

2019 Publishing Predictions from Agent Laurie McLean

From Anne Allen’s Blog:

By Laurie McLean, Founding Partner of Fuse Literary Agency

. . . .

Diversity Continues its Dominance

One of the unforeseen yet marvelous results of the democratization of publishing is the emergence of #ownvoices authors and the increasing desire for marginalized voices to be heard and read. Top Ten and Best Books of the Year lists are crammed with nearly unpronounceable author names and stories about people and places foreign to most readers.

Publishing is slowly becoming more reflective of our society as a whole and that is a very good thing. We Need Diverse Books. In 2017 only 9% of children’s books featured African or African-America characters. We obviously have a large upside to explore.

Editors and agents are hungry for well-written books written by non-Caucasian authors. And I think that trend will accelerate in 2019.

Resurgence of Indie Bookstores as Destinations

When Borders Books went bankrupt and consumers began buying more and more of their books (and everything) from Amazon, things looked bleak for publishing’s beloved retail channel.

But something wonderful has happened. Indie bookstores, whose demise has often been predicted but has not happened, began to flourish. They added complementary items to their stores. They added cafes or partnered with good ones. Some added the capability to print books instantly through technology.

But the heart of indie bookstores was what really saved them. They are filled with book lovers as staff who can help you find the exact book you want for yourself or as a gift. Bookstores, with their bestselling author visits, workshops and conferences, classes, parties and other events, have finally become the destination book lovers craved.

Through smart expense management, good solid marketing, and really knowing their customers, indie bookstores are thriving across America. Let’s hope this trend continues (and it will if you buy books there!)

. . . .

Audiobooks and Podcasts are More Popular Than Ever

The sales numbers continue to accelerate. More people are listening to podcasts and books in commute traffic, at home while relaxing, pretty much anywhere they have a mobile phone or mp3 audio system. And it doesn’t look like they’re going to put the brakes on anytime soon.

Because they’re so popular (and profitable) audiobooks have joined ebooks and print books as “must have” rights traditional publishers won’t do a deal without. Audible continues to innovate in this space with subscription-based services, original audio stories, and “all you can absorb” genre titles (romance for now) for a monthly fee.

Podcasts are getting more and more professional and interesting. If you haven’t listened to a podcast ever, there’s a new year’s resolution you’ll be happy you made.

Link to the rest at Anne Allen’s Blog

With due respect to the author of the OP, if Barnes & Noble goes under during 2019 (PG says that’s a 90% certainty), indie bookstores will experience increased sales from people who formerly shopped at BN and Amazon will experience increased book sales from the same source.

However, after this false economic dawn, indie bookstores will continue their long decline.

For one thing, with BN gone, big publishers will not order printed books in quantities that allow book printers to put their presses on cruise control whenever a big new book is released. Printing costs will increase. Some printers will get out of the book business to focus on more profitable printing markets.

Will traditional publishers eat the increased production costs of printed books to help keep sales up?

As PG has mentioned here before, in a former life, he had extensive business dealings with large European publishers (which own all but one of the big US trade publishers). Based upon that and some other experiences, PG predicts the European publishers will increase prices for printed books in order to maintain profitability. There is also a possibility that large publishers will squeeze advances and author royalties to help make ends meet.

If PG is correct, Big Publishing will bestow yet another growth stimulus upon Amazon.

Amazon can afford to cut book prices to maintain or increase sales volume and gross revenues much, much more easily than any indie bookstore can. Amazon will need to be careful about violating U.S. antitrust laws because of its increasing market power, but, in another of PG’s personal experiences, Amazon employs some very smart and savvy lawyers. So long as management listens to legal counsel, Amazon should be able to avoid any encounters with the Antitrust Division of the U.S. Department of Justice.

Is smart money going into the bookstore business any more? Is a big investment in a chain of bookstores going to generate a better return than buying and holding yet more Amazon stock or buying Facebook or Apple stock on the dip?

Donadio & Olson Files for Bankruptcy

From Publishers Weekly:

The Donadio & Olson literary agency filed for Chapter 7 bankruptcy December 3 following years of embezzlement by its former bookkeeper, Darin Webb, who was sentenced December 17 to two years in jail for his crimes.

The agency filed for Chapter 7 in the U.S. Bankruptcy Court for the Southern District of New York, listing assets of $47,241.90 and liabilities of $186,613.90. The agency’s authors are owed a total of $2.7 million in royalty payments. The firm has already begun liquidation proceedings.

The two principals in the firm, Edward Hibbert and Neil Olson, explained how the embezzlement led to the downfall of D&O in separate letters to the judge made public at the time of Webb’s sentencing. Olson provided the more complete explanation of what took place, saying that Webb had been the agency’s bookkeeper for about 20 years and, during that time, had taken over most of the agency’s back office functions. What looked like dedication to the job, Olson wrote, was really part of Webb’s scheme to steal $3.4 million.

According to Olson, Webb, over time, stole an “ever larger portion of our and our client’s money. His means of doing this were complex—hidden bank accounts, fraudulent reports, gently squeezing out a part-time assistant who asked too many questions.”

When Webb confessed to the theft, it became clear, Olson wrote, that he did not “have the means to repair what he has ruined, and we do not have the means to continue.” As a result, Olson wrote, the agency “will cease to exist within weeks.” (The letter was dated October 21, 2018.)

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

PG wonders how much money the principals of the agency, including Edward Hibbert and Neil Olson, have received from the agency during the last year or so.

He asks because US bankruptcy laws include what are sometimes called “clawback” rights of creditors for any Preferential Transfers by the bankrupt entity or person.

Here’s one description of preferential transfers:

A preferential transfer occurs when a debtor, prior to filing for Chapter 7 bankruptcy, pays off a particular creditor or group of creditors and by doing so, causes other creditors to get less in the bankruptcy. For example, a debtor may wish to repay a debt to a friend or family member, to make sure that person gets paid in full (and shield the money used to repay the debt, which would instead be divided among all of the debtor’s creditors).

. . . .

Only transfers made within a certain amount of time before you file for bankruptcy count as preferences. The rules depend on your relationship to the creditor:

  • During the year before you file for bankruptcy, any payment of more than $600 to an “insider” creditor — typically, a friend, family member, or business associate — counts as a preference, subject to the clawback.
  • During the 90-day days before you file, any aggregate payment of more than $600 to a regular creditor (someone other than an insider).

The problem with preferential transfers (also called preferences) is that it benefits one creditor at the expense of the rest. Rather than having their debts tossed into the bankruptcy hopper and receiving pennies on the dollar from the bankruptcy trustee (if that), creditors who receive preference payments are paid in full (which leaves that much less money to be distributed to other creditors).

If the agency is a corporation (the Donadio & Olson website identifies the entity as “Donadio & Olson, Inc.”) and the corporation has filed the Chapter 7 petition, it is possible that payments to corporate officers, directors, shareholders or other insiders during the year prior to the bankruptcy filing date or during the 90 days prior to the filing date could be subject to clawback proceedings as described above.

It has been a very long time since PG has worked on any bankruptcy matters, so he’s not current on bankruptcy law, but authors who haven’t received royalty payments the agency collected and spent on salaries and bonuses (if any) for corporate insiders may wish to consult competent bankruptcy counsel to see if they might be able to collect at least some of that money.

It would not be unusual for a single attorney or law firm to represent a class of creditors who are similarly situated rather than each creditor hiring his/her own counsel.

Dreams

From Rachel Gardner, Literary Agent:

Whenever I (or other bloggers) write about marketplace realities in publishing, there are always a wide variety of responses, ranging from pragmatic acceptance to mournful disappointment to angry lament. My observation – and I could be wrong – is that the sad and mad responses are from writers whose passion for being published burns hot and bright, and whose publishing dreams have not yet been fulfilled. This is completely understandable, and I feel for you.

Many writers ache with the desire to hold a book in their hands that has their name beautifully printed across the cover. Many of you are nursing life-long visions of walking into Barnes & Noble and seeing your book on the front table. This business is all about our dreams, isn’t it?

I understand that. I am an absolute book-lover from childhood. I love books and bookstores, I love talking about books, I love spending Saturday afternoons reading books (not that I’ve been able to do that lately). I’ve written several published books, and edited many more. But what I don’t have – what I’ve never had – is a burning desire to see my name on the cover of a book. And I guess that’s why it’s easier for me to see publishing as a business.

. . . .

Publishing professionals – those who run publishing companies, those who edit and acquire books, those who represent authors – are on your side. By recognizing this as a business, they are not somehow evil, they are not somehow taking away from the beauty and purity of your art. They are, in fact, rooting for you, wanting you to show up with a wonderful book that others will enjoy reading. They have to look at the marketplace realities make decisions accordingly. They have to separate themselves from the emotion of it all and make plans and choices they hope will ensure the ongoing health and success of the publishing and bookselling industry.

We want to help your dreams come true. And everything I say here, everything I write on this blog, is with that goal in mind. All of the editors and agents who share their thoughts online are doing it with the same intent: to have dialogue, to keep communication open, to de-mystify publishing, to help educate and enlighten writers, to encourage them.

Link to the rest at Rachel Gardner, Literary Agent

PG has posted a few items from Rachel Gardner before and added some pungent comments.

This particular post makes him a little sad. While he definitely disagrees with some of her characterizations in the OP as he has with her previous posts, he thinks Ms. Gardner would be a perfectly pleasant person with whom to have a conversation on a topic other than the book business.

When she says she wants to help writers’ dreams to come true, he is persuaded that she really believes this is an important part of her work.

However, a great many authors with whom PG is acquainted want to earn a living as a writer. That’s a core part of their dream, far more important than visiting their books in a book store. And these authors are not living family estates, attending balls at neighborhood great houses and riding to hounds.

Many of the authors I’m thinking about want to earn a living from their writing and some would like to quit their day jobs so they can spend more time writing, working hard writing. They have no problems recognizing they are in a business and want to be very good at their business.

While these authors want to write very good books and feel the satisfaction of a job well done. Perhaps PG runs in very different authorical circles, but none of the very good authors with whom he is acquainted wake up in the morning wanting to savor the “beauty and purity” of their art.

Further, these authors do not want to “separate themselves from the emotion of it all,” because their professional emotions are characterized by grit and determination and a refusal allow anything to interfere with their desire to write very good books that will appeal to a significant audience and to keep on writing them as their life’s work.

A growing transfer of funds into their business accounts every month is an important part of their dreams. Writing is not a hobby and writing books that others are happy to buy and enjoy is completely compatible with quitting their day job and being able to hire others to help them pursue their passion more effectively. They want to hold onto the steering wheel and decide how fast they want to go and where.

Emotionally and rationally, a great many authors PG knows don’t want to wait for somebody else to get their books in front of readers and decide what the cover will look like and set a price higher than they know many of their readers will want to pay.

Fortunately, Ms. Gardner avoided the n-word. Every time, PG hears about a publisher or an agent nurturing an author and her career, he wants to barf.

PG would rather be nurtured by an honest coal miner than by some condescending twit in New York.

That term and the attitude behind it is a gross insult to the indie authors PG knows and, in PG’s gargantuanly humble opinion should be chopped up and carted off to the same social destination where the other n-word has gone.

If any readers of this post, “ache with the desire to hold a book in their hands that has their name beautifully printed across the cover,” PG is sorry for your pain and prescribes Kindle Direct Publishing to alleviate your anguish. You could even buy a couple of cartons of KDP books with your name printed on the cover and writhe around on the floor with them for awhile.

This Startup Aims To Democratize Book Publishing

From Forbes:

Time was, the publishing industry could claim a stable existence, safe within its leather-bound borders. If a publishing business was held and run by competent hands, it could typically expect a nice payoff from those gilded-edge pages. Over the past decade (or more), however, sales numbers have become increasingly unpredictable.

The merging of some traditional publishers and the shutting of doors by others has made becoming a debut author perceptibly less likely. Literary agents have more methods than ever for heaving even the most adventurous and resolute new author out the door — particularly if the author doesn’t arrive on the agent’s doorstep with an existing base of eager readers. What new and unaided author can show up with the needed number of followers in tow? I would guess the number may amount to about zero.

Traditional publishers want relevant authors but have a massive challenge in finding them, especially with the scale filtering methods used today. The whole author-agent-publisher convoy has become a woefully ineffective method for discovering and nurturing high-quality literature and new titles.

But recent developments in the publishing world have allowed for a possible future. New platforms such as Publishizer, a crowdfunding literary agency, are stepping forward and connecting authors and publishers through preorders and data. This seems like a safer haven for newbie authors.

. . . .

1. No more rejection of new book ideas.

Constantine mentioned that in the U.S. every year, more than 1 million book proposals get turned down — that’s a rejection rate of about 96 percent. Not that this widespread rejection is just making an appearance now — it’s something that has gone on for decades. Certainly, it’s no secret that agents and their publisher counterparts are subjective in their choices of material to present.

We have all heard horror stories like Tim Ferris being rejected numerous times for his New York Times bestselling book The 4-Hour Work Week. And who wouldn’t want to shake some sense into those who received J.K. Rowling’s first Harry Potter manuscript — and rejected it more than 10 times? The world-famous Harry Potter series nearly didn’t get published, and Rowling was told not to “quit her day job.” The number of good books that might never see the sunlight of publication is staggering.

Crowdsourcing can eradicate these traditional roadblocks and inefficiencies by validating book ideas with readers who preorder copies after reviewing an author’s proposal, which Publishizer helps create according to industry standards. Authors then get matched to publishers based on the specific interests of acquisitions editors — before any of the book is written. So rather than being painfully rejected dozens of times over months or years, authors can be quickly connected with interested publishers.

. . . .

Crowdfunding may single-handedly bring about an era that we have not seen before in publishing, helping us find works that would otherwise languish in a literary graveyard somewhere. I believe that crowdfunding will uncover books that will delight future generations — and bring a bright new unfolding of freedom to people who have not known where to strike that power pose before.

Link to the rest at Forbes

Cheap Grace

From Books & Such Literary Management:

I’ve been back and forth more times than the airport shuttle on whether I should comment on this topic. We, as Christians and especially as women, are taught to forgive and smooth things over, especially things that make us deeply uncomfortable. I’ve come to the conclusion that to keep quiet is akin to being complicit. So here goes. . . hopefully short and anything but sweet.

What am I talking about? Christian publishing’s own version of Me Too. #metoo.

. . . .

You may have seen the article in Publishers Weekly or the one in World magazine. The articles were carefully written, uncovering a troubling situation that had been going on for years in our writers conferences. Ever since word came out, naming four serial offenders, there’s been silence among industry professionals. I spoke to one person involved in a large writers conference, and she said they had known for a long time and handled the situation quietly but swiftly.

. . . .

There are women, mostly very young women, who have largely been ignored in this frenzy of forgiveness. I know for a fact there are those who felt called to a writing career who have left, feeling disillusioned and defeated. Others are still moving forward, but it has been years since they felt comfortable gathering with other writers. One of those men accused of multiple inappropriate acts said he “took the high road” and quit before being fired from his position. The high road? That is cheap grace. Women have had their lives changed forever. That is not hyperbole.

. . . .

Some of those named were johnny-on-the-spot to come out and ask forgiveness as soon as they heard that articles were in the works. Many of these men had been quietly banned from writers conferences for years– why didn’t they come out then and confess and ask forgiveness? Or even before? One wise commenter hit the nail on the head when he called it “preemptive confession.” Writers by the hundreds came gushing onto those blogs posted on Facebook to tell the abuser how much they admired him for his courage. Seriously? All the while the victims are being traumatized over and over by those very comments. I cringe to read them.

Link to the rest at Books & Such Literary Management and thanks to David for the tip.

Agent Danielle Smith’s Former Clients Speak Out

From Publishers Weekly:

The children’s book publishing world has been roiling for the past week over the disclosure that Danielle Smith, the principal of Lupine Grove Creative, an agency specializing in children’s and YA authors, acted more like a literary grifter than a literary agent. Since Smith emailed a letter to her clients on July 24, confessing that recently she had “not handled a situation as well as I should have” and thus was dissolving the agency effective immediately, 19 former clients have reached out to PW, sharing tales of a pattern of malfeasance that has shaken their confidence and adversely affected their careers.

According to some former clients, she claimed to have had offers in hand that didn’t exist, such as, one author requesting anonymity disclosed, a $50,000 two-book deal. She informed others that editors had expressed interest in their submissions, but subsequently told them that either the editors had then lost interest or had outright rejected those submissions. Clients also complained about Smith’s refusal to communicate with them honestly and in a timely fashion, as well as the lack of transparency, including a reluctance to render submission lists to them upon request. Several clients allege that she even forged emails from editors and passed this correspondence along to them.

“Since this began, I and others have kept asking why, and looking for some rational explanation,” a well-known author who is knowledgeable about the situation told PW. “As more and more levels of deception are uncovered, you think, wouldn’t it have been easier to just to do the work? And of course it would have been. And the more you learn, the more all rational explanations fall away. So then I’m left wondering if the deception itself wasn’t the end game. Just the sheer thrill of getting away with it.”

The negative experiences with Smith, according to these sources, go as far back as five years, when Smith was a newly minted agent at Foreword Literary. She moved to Red Fox Literary in 2014. Smith, who was named a PW Star Watch Honoree in 2016, launched Lupine Grove in Shell Beach (San Luis Obispo County), Calif., in January 2017. Agent Jennie Kendrick joined Smith at Lupine Grove this past January.

After complaints about her surfaced on social media in the wake of that letter, Smith shut down the Lupine Grove website and deleted her social media accounts. PW has reached out to Smith for comment on the allegations, but has not received a response.

More than 60 writers whom Smith has represented at some point between 2013 and 2018 have joined a private Facebook group, where they are sharing information and commiserating with one another. While there is much speculation as to why Smith treated her clients the way she did, and the extent of the deceptions, nobody really has any answers—including Kendrick, who worked remotely from San Francisco. Kendrick says she was taken completely by surprise by Smith’s letter and has spent her time since “finding a new home for my clients.” She added, “As far as my working relationship with Danielle goes, it was professional and helpful, and she was always responsive to me and my clients, so this was just a shock all around.”

According to the former client who is referred to in Smith’s July 24 letter, who spoke with PW on condition of anonymity, Smith represented her for two years, until June. Almost a year ago, Smith claimed that she had scored at auction a lucrative two-book deal with a major house for this debut author of a middle-grade novel. “I never heard from the editor after [I] accepted the offer,” she said. “Danielle always had excuses. Eight months passed, and I saw a lawyer.”

Link to the rest at Publishers Weekly

No, you probably don’t have a book in you

From The Outline:

Has anyone ever said you should write a book? Maybe extraordinary things have happened to you, and they say you should write a memoir. Or you have an extremely vivid imagination, and they say you should write a novel. Maybe your kids are endlessly entertained at bedtime, and they say you should write a children’s book. Perhaps you just know how everything should be and imagine your essay collection will set the world straight.

Everyone has a book in them, right?

I hate to break it to you but everyone does not, in fact, have a book in them.

. . . .

I am a literary agent. It is my full-time job to find new books and help them get published. When people talk about “having a book in them,” or when people tell others they should write a book (which is basically my nightmare), what they really mean is I bet someone, but probably not me because I already heard it, would pay money to hear this story. When people say “you should write a book,” they aren’t thinking of a physical thing, with a cover, that a human person edited, copyedited, designed, marketed, sold, shipped, and stocked on a shelf. Those well-meaning and supportive people rarely know how a story becomes printed words on a page. Here’s what they don’t know, and what most beginner writers might not realize, either.

Every story is not a book.

. . . .

A book may also be things that happened or that we wished happened, embellished for interest, but it’s also so much more. It’s a story told artfully on the page, tailored to the reader. A book has a beginning, middle, and an end that keeps the reader invested for the five, six, ten hours it can take to read a book, because if it gets boring in the middle, most people stop reading. A book, when published by a traditional publisher to be sold in stores, has a defined market, a reader in mind, and that reader is one who usually buys books, not just some hypothetical person the publisher hopes to catch off the street.

You can tell a story to anyone who’s willing to listen. But writing a book that people will pay money for or take a trip to the library to read, requires an awareness few storytellers have. It is not performance, not a one-person show. It’s a relationship with the reader, who’s often got one foot out the door.

. . . .

Remember writing papers in school? Remember trying to eke out 1,000 words or three pages or whatever seemingly arbitrary number a teacher set? Remember making the font bigger and the margins wider? You can’t do that to a book. I ‘m often sent stories that are way too long or too short for the publishing industry, and that makes them bad candidates for books. The average novel, for adults or children, is at least 50,000 words. That’s 50 three-page papers. Shorter books are not cheaper for the publisher to make, for many reasons too boring to get into here, and no, it’s not just cheaper to do ebooks, either. (No, really, it’s not.) If you’re an epic writer and think breaking up your 500,000-word fantasy series into five books is the key, you’re wrong there, too. A publisher doesn’t really want book two until they see how book number one is selling. And if your story doesn’t wrap up until book five, then you’re going to have nothing but disappointed readers. Writing — just getting the words on the page — is hard, period. Writing artfully so that someone enjoys what you’re writing is even harder.

Publishing is a retail industry, not a meritocracy.

Writing is an art form, books are art, but they exist in a system that relies on readers to exchange money for goods. That money pays a publisher’s rent and electric bill, and the salaries of the often hundreds if not thousands of people they employ to make the books readers buy. And if a book doesn’t make money, it’s very hard to pay those salaries. Publishers take a financial risk on a book, because no one knows how a book is going to sell until it’s on shelves, and very successful authors (your JK Rowlings and James Pattersons) help pay the bills for the less successful books. Publishers certainly publish books they know are not going to make a lot (or any) money, and they do this for the sake of art or history or prestige, or a dozen other reasons. But they can’t do it that often. So, you may have an amazing story, but if there isn’t sufficient evidence that readers will flock to it, you’re not likely to be published. No one deserves to be published just because they completed a book. It’s not “if you write it, they will come.”

Link to the rest at The Outline

Or you could write a book, click on the KDP Publish button and let JK and James pay all those salaries and bills on their own.

And never have to deal with a literary agent. Or pay anyone but yourself.

I Am Not a Gatekeeper

From literary agent Rachelle Gardner:

People in and around this business have long used the word “gatekeeper” when referring to those in publishing tasked with choosing which books to publish or represent.

Since the rise of self-publishing, it has become a debate—often heated:

Down with the gatekeepers!

Hooray for the gatekeepers!

BUT GATEKEEPERS ARE NOT WHAT YOU THINK.

There is nobody in publishing whose job is to “keep you out.” Are we watching the gate? Yes!—to identify authors we’d like to see published.

Each person who has a so-called “gatekeeping” role is tasked with finding authors to bring in, not authors to keep out. Anyone who acquires authors for an agency or for a publisher is totally 100% focused on bringing in books they believe they can sell.

That’s IT.

You wouldn’t call the women’s wear buyer at Nordstrom a gatekeeper, because you know her job is to bring in clothes she believes her customers will like. Her job is not to keep out the bad, but to bring in the good.

Some publishers, librarians, agents, and acquisitions editors call themselves gatekeepers. Maybe they relish that role because they feel it gives them power. But regardless of what they say or how they refer to themselves, they’re not gatekeepers. They’re selectors. Choosers. They’re salespeople. They’re looking for books they can sell. Period.

Link to the rest at Rachelle Gardner

PG checked the almost-always helpful Wikipedia for definitions:

A gatekeeper is a person who controls access to something, for example via a city gate. In the late 20th century the term came into metaphorical use, referring to individuals who decide whether a given message will be distributed by a mass medium.

. . . .

Gatekeepers serve in various roles including academic admissions, financial advising, and news editing. An academic admissions officer might review students’ qualifications based on criteria like test scores, race, social class, grades, family connections, and even athletic ability. Where this internal gatekeeping role is unwanted, open admissions can externalize it.

Various gatekeeping organizations administer professional certifications to protect clients from fraud and unqualified advice, for example for financial advisers.

A news editor selects stories for publication based on his or her organization’s specific criteria, e.g., importance and relevance to their readership. For example, a presidential resignation would be on the front page of a newspaper but likely not a celebrity break-up (unless the paper was of the gossip variety).

Other people gatekeeping roles are in mental health service, clergy, police, hairdressers, and bartenders because of their extensive contact with the public.

And a quick quote about gatekeepers:

I sat with myself one day and asked, ‘Who is in those prestigious literary circles? Do they represent me? Do they appreciate the topics I write about and the style in which I write? Do those gatekeepers let a demographic like mine through the door?’ And the answer was no.

Rupi Kaur

PG will note that a gatekeeper’s continued existence requires that a lot of people want what is behind the gate.

Learned Helplessness

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.

An iconic literary agency is fleeced by its accountant

From Melville House:

Usually, when sums of cash north of one million dollars are invoked on this blog, it is because a celebrity has just received a mega-advance to write a book, or because Amazon has avoided paying that much in taxes.

Today is different, though. We’ve got a real caper on our hands.

The New York-based literary agency Donadio & Olson represents some huge talent — such as Chuck Palahniuk.  Last fall, one of the agency’s clients was expecting a $200,000 advance payment that never arrived. The author tried to contact agency accountant Darin Webb, but still didn’t receive the check for months.

That’s because Webb had processed that payment, and many others like it, as a payment to himself. Crazier still, he’d been running this skim-scam since 2011.

. . . .

The agency now has a forensic accountant investigating nearly twenty years of financial records to determine the full extent of the theft, and to begin re-paying the authors unfortunately caught up in the con.

A lawyer for D&O has stated, “The agency’s singular focus at this time is ensuring that all of its impacted clients are made whole to the greatest extent possible, and the agency is cooperating in every possible way with the government’s efforts.”

Link to the rest at Melville House

PG realizes there is not much new information in the OP that hasn’t been included on prior posts on TPV.

However, he wants to provide as much information as possible about this matter because it should be thoroughly understood by authors.

The quote from the attorney for Donadio & Olson, “The agency’s singular focus at this time is ensuring that all of its impacted clients are made whole to the greatest extent possible,” is structured in a telling way.

“The agency’s singular focus”, “ensuring that all of its impacted clients”, “are made whole”, all sounds very reassuring for authors who have lost money for years.

Unfortunately, these statements are limited by, “the greatest extent possible”.

PG suspects the agency cupboard is bare or almost bare. One of the many questions that immediately come to mind is whether the agency principals received any of the embezzled funds. Were they victims or co-conspirators?

Either answer to that question should ruin the reputation of the agency principals. If they were victims, even preliminary evidence points to a conclusion that these people do not know how to properly operate a literary agency and carry the responsibility for safeguarding money that belongs to other people.

Did none of the agency’s clients contact the principals about low royalty payments over the many years of embezzlement? After presumably multiple queries by multiple authors did the agency principals ever question their accountant? Or have an outside accounting firm come in to look over the books?

If they are co-conspirators, then criminal punishment would seem very likely.

The press release announcing embezzlement charges against Donadio & Olson’s accountant from the US Attorney for the Southern District of New York does not mention the name of the agency, referring only to “a Manhattan-based literary agency”, “the Agency”, or “a firm in the book business”. PG doesn’t know whether this is part of a strategy by the US Attorney or the result of the persuasive abilities of Donadio & Olson’s lawyers.

While PG has visited New York on many occasions, mostly for business purposes, he is definitely not an expert on the city or state. However, his impression is that the New York state legislature is quite active in passing laws on a wide variety of subjects.

Presumably, it is of some financial and social benefit for the city and state of New York to be the headquarters of the traditional publishing industry in the United States.

While he is certain members of New York’s political class do not pay any attention to him, PG proposes some legislation to maintain the reputation and status of the publishing biz. The principal elements of the proposed legislation follow.

  1. No one may act as a literary agent in the State of New York without being properly licensed as such by the State of New York.
    1. The State may establish minimum qualifications for persons seeking to be licensed as literary agents, including the requirement that a prospective agent take and pass an examination covering an agent’s duties and obligations under New York law.
    2. A person located outside of the State of New York will be deemed to be acting as a literary agent within the State and be subject to the State’s regulations respecting literary agents if such person is representing authors in the negotiation of publishing or licensing agreements with any company whose primary business is located within the State and has successfully concluded more than one such negotiation on behalf of an author during a given calendar year.
  2. A literary agent is obligated in his/her fiduciary capacity to safeguard the funds of each client represented.
    1. Failure to do so may result in revocation of the agent’s license and/or additional penalties.
    2. An agent may be held personally liable for damages resulting from a breach of the agent’s fiduciary obligations to an author.
    3. Each agent working in a literary agency has an obligation to promptly report any improprieties of which he/she becomes aware involving the safeguarding of client funds to appropriate state authorities.
  3. Each literary agent must maintain a separate trust account with a New York bank or similar financial institution for the purpose of depositing and disbursing all client funds.
    1. All client funds must be deposited into the trust account as soon as possible after their receipt.
    2. All payments from the trust account must be paid to the agency’s clients within 15 days of receipt by the agency.
    3. On at least an annual basis, an agent will provide each client with a full and complete written accounting of trust account activity involving the client’s funds.
    4. Commingling client funds with agency funds is prohibited.
    5. On at least an annual basis, each agent will retain an independent outside accountant to conduct an audit of the agency’s trust accounts and provide a written report of his/her/its findings. Any client may request and shall promptly receive a copy of the accountant’s report for any year during which the agent was representing the client.
    6. The State of New York may audit an agency’s trust account for purposes of ensuring compliance with the law at any time.
    7. The agency’s trust account obligations shall not apply to any funds paid directly to its clients by publishers or other third parties with which the client/author has a written contract.
  4. The Attorney General of the State of New York is authorized to receive compaints from any person respecting a violation or potential violation of these laws by an agent or literary agency. Within 90 days of receipt of such a complaint, the Attorney General shall make the contents of the complaint available online to the public.

PG welcomes any additions, changes, etc., to his proposed Literary Agent Licensure Code.

He notes that, as a general proposition, he does not support widespread occupational licensure requirements (hair braiding, etc.), but, given his experience with authors and agents generally and the latest from Donadio & Olson, he thinks the time for licensing agents or imposing some type of effective regulation on their actions and practices has arrived.

An Agent Nightmare Revealed

Some thoughts from Kris Rusch on the literary agency bookkeeper who is charged with embezzling $3.4 million from the authors represented by the agency. PG first mentioned it here.

From Kristine Kathryn Rusch:

The news broke publicly over the holiday weekend. If you blinked, you missed it.

The bookkeeper for a prestigious New York literary agency pled guilty to embezzling millions from the agency, leaving the agency “on the brink of bankruptcy.”

Donadio & Olson has existed for 49 years. Started by legendary agent Candida Donadio, the agency has represented some of the biggest names in fiction for decades.

. . . .

The actual criminal charges against the bookkeeper, Darin Webb, were filed on May 15 in federal court. Webb was charged with wire fraud for embezzling $3.4 million. A forensic audit is now occurring at Donadio & Olson, and there is speculation that the amount of money Webb stole will go much, much, much higher.

Here are the facts of the case as reported in the press. $200,000 that an unnamed writer represented by Donadio & Olson expected last year never arrived. The writer kept contacting Webb, who lied about what was going on with the money. Finally, fed up with the delay, the writer contacted someone else at Donadio & Olson. (That person isn’t named either.)

. . . .

The panic is clear in the calm language of Donadio & Olson’s attorney on the civil case. He said, the agency is focused on “ensuring that all of its impacted clients are made whole to the greatest extent possible.”

To the greatest extent possible.

. . . .

Even if the agency is insured against this kind of disaster, it would take years for the insurance to pay out, because the court cases have to go through first. And really, there are other questions here that an insurance company would want answered.

How much of this problem inside Donadio & Olson was caused by negligence on the part of the agency? Webb apparently worked alone, with no back-up. He handled the finances for the agency, received the money and the paperwork from publishers/movie studios/game companies, and then (in theory) passed that money onto the clients, retaining Donadio & Olson’s 15% commission. Did Donadio & Olson require this bookkeeper, who was hired at the tender age of 28, to be bonded? What level of degree did he have? Was this his first job?

How come no one backed him up? Did Donadio & Olson hire a CPA to review their books every year? Did Webb fudge those books before they went to the CPA?

How much of this could have been prevented with average due diligence, the kind of stuff you expect someone who has a fiduciary responsibility to clients to have?

All of those questions and more need to be answered before any insurance settlement would be considered, let alone paid.

To the greatest extent possible.

In other words, my friends, Donadio & Olson does not have the financial resources to make up for a theft of $3.4 million, let alone any more potential losses that the forensic accountant might turn up.

. . . .

[I]magine what’s going on with estates like [the estate of the author of The Godfather, Mario] Puzo’s, which includes all of the monies still coming in from the movies, from licensing, from the books (which are still in print). These are multimillion dollar ventures, handled every year by Donadio & Olson, with no one overseeing the day to day running of the finances.

Oh, my. The money was simply there for the taking.

The thing is, Donadio & Olson is a “reputable” agency. The New York Post used the word “prestigious” in describing the agency. Donadio & Olson was, until last week, a gold-standard agency, one that most young writers might have aspired to have as representatives.

. . . .

According to The Post, Webb confessed to “company executives and their attorneys” in March. A videotaped confession, mind you. Donadio & Olson was still blogging about writing and such on its site in April, acting as if nothing was wrong.

And then…and then…

Well, here’s The Post:

Some writers represented by the agency told The Post they had not been contacted about the theft, and did not know if it affected their royalties.

“This is the first I heard of it,” said McKay Jenkins, a nonfiction author.

Bert Fields, a lawyer representing the Puzo estate, said he learned of the arrest from The Post.

In other words, Donadio & Olson has not informed its clients—to whom it has a fiduciary responsibility—that their one and only bookkeeper confessed to massive embezzlement. The agency has known about this since last fall.

Sadly, I am not surprised by any of this. As I have blogged about before, literary agencies are not regulated. Prestigious agencies embezzle. I’ve personally had one of the biggest boutique agencies in the world embezzle from me. (And I suspect they still are, although I can’t prove it. But there are licensed properties—tie-ins—that I wrote whose royalty statements I cannot get my hands on because no one at the licensor will cooperate with me. The books have been in print for 25-30 years and I have never seen a dime in royalties. Ever.) I’ve also had one of the biggest fraudsters in the industry steal from me. I speak from hard-earned life lessons here.

. . . .

I understand how someone could notice the missing $200,000 payment that they knew was coming. But what about the subsidiary rights sales that no one bothered to tell them about? The royalties on already sold foreign books? The licensing payments from movie-related merchandise? The reprint fees?

I keep imagining those Donadio & Olson writers who have big book deals still working a day job because “there’s no money in writing.” There’s no money in writing when your agent is stealing it from you, that’s for damn sure. In fact, if you want to read a very sad illustration of what happens when an agent embezzles from a big name writer who only has a few properties (not hundreds like, say, Nora Roberts), read this about Chuck Palahniuk from The Guardian.

. . . .

If writers have literary agents—and no writer should—but if a writer for some reason feels they need an agent, then that writer needs to make sure the publisher/game company/film company splits payments. The company pays the writer her 85% and the agent his 15% directly. No money ever ever ever goes through the agent’s hand, except the money he earned.

Better yet to pay 100% to the author, and have the author pay the agent the 15%, just like you’d pay the housekeeper. But agents complain about that. Seems agents think the writers won’t pay them in a timely fashion.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books

PG has done a little online research.

  • Here is the website of Donadio & Olson. PG couldn’t see any indication of the tiniest cloud on the horizon when he checked the site.
  • Here’s a Tweet on the first page of the agency’s website:

 @DonadioandOlson 

Who’s excited to pick up a copy of @chuckpalahniuk new book?! It’s already made it to number seven on the @nytimes bestseller’s list! pic.twitter.com/Q1eEtQNDOP
#7 on the NYT bestseller list and Palahniuk is not receiving any royalties.

The Guardian article which Kris mentions in the OP quotes Chuck Palahniuk saying he’s “close to broke” because his  royalties have evaporated.

The agency website lists two agents:

Neil Olson has been with the agency since 1987 and became a partner in 1996.  He represents most of the agency’s estates, as well as mainstream literary and commercial fiction, and nonfiction in the areas of history, biography, science, travel, and nature.  His clients have won the National Book Award, the Edgar Allen Poe Award, and the William Dean Howells Medal, among other prizes.  Neil can be reached at neil@donadio.com.

Edward Hibbert began working at the agency in 1989.  His clients include bestseller Chuck Palahniuk, Christopher Bram, and the biographers Ed Sikov and Brian Kellow.  Additionally, he sold the film rights on such titles as the cult classic Fight Club, Choke, Oscar Wilde(based on the Richard Ellmann biography) and Gods and Monsters, winner of the Academy Award for Best Adapted Screenplay.  He represents literary and commercial fiction, and non-fiction in the area of biography and the performing arts. Edward can be reached at edward@donadio.com.

This has apparently not been a large agency, at least in the  last few years. PG checked the agency website via the Wayback Machine on some random dates from about 2012 on forward and the largest number of  agents listed were four. Most of  the time, there were three agents – the two listed above plus Carrie Howland.

PG mentions the small number  of agents because he would suspect that the scale of embezzlement listed in the OP would be less likely to be noticed in a larger agency with a couple dozen agents and several hundred authors.

If there were two agents and Chuck Palahniuk phoned one of them to ask about his royalties, PG would think that agent might ask to  see some recent royalty reports from the client’s publishers.

At least one and likely both agents would seem likely to have a reasonable idea about how  much income the agency was  generating and, almost certainly, how much money the agent took home each year. But perhaps there were more important concerns than whether the  agency was paying its authors in full and on time.

Accountant embezzled $3.4M from famed literary agency

From The New York Post:

A Manhattan accountant cooked the books at a prestigious literary agency that represents top writers, including “Fight Club” author Chuck Palahniuk, bilking its clients of millions and leaving the company on the brink of bankruptcy, according to legal papers.

Darin Webb, 47, faces 20 years in jail on wire-fraud charges for embezzling $3.4 million from storied Manhattan agency Donadio & Olson, according to a recently unsealed federal criminal complaint.

Although the agency, which also represents the estates of “Godfather” writer Mario Puzo and radio legend Studs Terkel, was not named in court papers, a lawyer representing the firm confirmed to The Post that Donadio & Olson was the subject of the alleged theft.

. . . .

The stolen money — allegedly lifted between January 2011 and March of this year — was earmarked for author royalties and advances, the complaint says.

But the theft could be exponentially more, a source told The Post, noting that a forensic accountant is combing through Donadio & Olson’s books all the way back to 2001, Webb’s first year at the agency.

He allegedly fessed up to the theft in March in a videotaped interview with company executives and their attorneys at the agency’s Chelsea office, saying he filed monthly financial reports that “contained false and fraudulent representations in order to accomplish the theft and evade detection,” the complaint states.

. . . .

The alleged theft was first discovered last fall when an unidentified author who was expecting to receive a $200,000 advance from his publisher asked Webb why he had not received the payment.

According to the complaint, Webb put the author off for months.

“The author did not receive the payment because Webb had converted the funds to Webb’s own use,” says the complaint.

Link to the rest at The New York Post

For those who are new visitors to TPV, PG will repeat his previous observations about literary agencies – The agency adds no value for an author by receiving all or any portion of the royalties to which the author is entitled from the publisher.

The solution is split checks – the publisher sends 85% of the royalties directly to the author and 15% to the agency together with a royalties report to each.

Unfortunately, this is not the first time an agent or an employee of an agent has stolen money that should have been paid to the agency’s clients.

According to the OP, this alleged embezzlement has been going on for about 17 years.

What does this say about the agent’s financial management skills? Does the agency ever pay attention to its authors’ money? Does the agency have even the most rudimentary accounting systems and safeguards in place to protect authors? Does the agency care?

The Guardian has a story about Fight Club author Chuck Palahniuk who says that he is “close to broke” because of the embezzlement.

When to follow up with a literary agent

From former literary agent Nathan Bransford:

Contrary to popular belief among some fearful authors, literary agents will not be scared off and disappear into an angry puff of smoke the moment you send them a follow-up email.

An agent’s inbox looks like the electronic equivalent of Niagara Falls, and at any given time they will have literally thousands of pages in their to-be-read pile.

As a result, most agents will appreciate a timely and extremely polite nudge. (And if they would get annoyed by one, would you really want to work with them anyway?)

But when do you follow up with an agent and how often? In this post I’ll give you some guidelines on when and when not to follow up with an agent based on different stages in the publishing process.

Bear in mind that the below are just rules of thumb and different agents are always going to feel differently. And an individual agent’s stated preferences always wins for that agent.

. . . .

Unless otherwise specified by the agent, it’s not customary to follow up on query letters. Many agents have “no reply means no” policies and they will get annoyed pretty fast if you start chasing after a query that they didn’t reply to.

Yes, I know, it’s really scary to think your query got lost in the ether and was never seen by your dream agent, but that’s the way the e-cookie crumbles.

The only exception to this is if the agent specifically requested a query letter from you, as in a referral situation or where there’s some sort of a personal connection. In that case, I’d wait a few weeks and check again.

. . . .

If an agent requests a partial or full manuscript from you, they will expect you to follow up at some point if they haven’t gotten back to you in a timely fashion.

So how long do you wait? I’ve seen everything from a month to two and a half months recommended, but I personally would split the difference and follow-up once after six weeks and thereafter once a month until you get tired of following up.

. . . .

If you receive an offer of representation, it’s customary to then follow up with all of the agents who are currently considering your manuscript, whether a partial or a full. Give them a reasonable timeframe (7-14 days) to get back to you so you don’t leave the agent who offered you representation hanging.

Link to the rest at Nathan Bransford

PG has seen prior posts from Nathan (who is now an author) and he seems like an intelligent and pleasant individual.

While PG has no doubt that the recommendations in the OP accurately reflect the world of agents and their expectations, while he was reading them, he was reminded of the rules of court (not the legal types of courts, although they can also be a bit strange, but the rules of royal courts).

As illustrations, here are some Rules of Etiquette as followed at Versailles:

Those wanting to speak to the king were not to knock on his door. Instead, using the left little finger, they had to gently scratch on the door until they were granted the permission to enter the room. Many courtiers grew that fingernail longer than the others for that purpose.

Continuing the rules of court.

. . . .

During the 17th century, in France, manners became a political issue. King Louis XIV and his predecessors, in collecting together the nobility of France to live with the sovereign at Versailles, instituted a sort of school of manners. At the palace, the courtiers lived under the despotic surveillance of the king, and upon their good behavior, their deference, and their observance of etiquette their whole careers depended. If you displeased a Louis, he would simply “not see you” the following day; his gaze would pass over you as he surveyed the people before him. And not being “seen” by the king was tantamount to ceasing to count, at Versailles.

A whole timetable of ceremonies was followed, much of it revolving around the King’s own person. Intimacy with Louis meant power, and power was symbolically expressed in attending to certain of the king’s most private and physical needs: handing him his stockings to put on in the morning, being present as he used to chaise percée, rushing when the signal sounded to be present as he got ready for bed. It mattered desperately what closeness the king allowed you – whether he spoke to you, in front of whom, and for how long.

The point about Versailles was that there was no escape: the courtiers had to “make it” where they were. The stage was Louis’s, and the roles that could be played were designed by him. It was up to each courtier to fit him- or herself into one of the slots provided. The leaders of all the other towns and villages of France were made, largely through the use of etiquette, and more specifically through rudeness and judicious slighting by the tax-collecting intendants, to feel their subordination, the distance from the court.

. . . .

The French court imposed elaborate codes of etiquette on the aristocracy, among them the way to use a napkin, when to use it, and how far to unfold it in the lap. A French treatise dating from 1729 stated that “It is ungentlemanly to use a napkin for wiping the face or scraping the teeth, and a most vulgar error to wipe one’s nose with it.” And a rule of decorum from the same year laid out the protocol:

“The person of highest rank in the company should unfold his napkin first, all others waiting till he has done so before they unfold theirs. When all of those present are social equals, all unfold together, with no ceremony.”
Fashionable men of the time wore stiffly starched ruffled collars, a style protected while dining with a napkin tied around the neck. Hence the expression “to make ends meet.” When shirts with lace fronts came into vogue, napkins were tucked into the neck or buttonhole or were attached with a pin. In 1774, a French treatise declared, “the napkin covered the front of the body down to the knees, starting from below the collar and not tucked into said collar.”

Link to the rest at Etiquipedia

PG (sort of) remembers a saying to the effect that officials with the least power require the most punctilious respect for their position.

What is the position of a literary agent in 2018? Will that position change by 2028?

Traditionally, agents provided a valuable service for publishers. They strained away the worst of manuscripts thereby saving the employees of publishers untold hours of work wading through large stacks of paper to find the occasional pearl.

And, even better, agents were paid for their services by authors, not publishers.

An agent’s life is easier if all manuscripts must pass through his/her hands.

Let’s assume, for discussion purposes, that one in one thousand random manuscripts that a literary agency receives will interest a publisher. Expanding the pool of manuscripts should be good news for the agent. 5,000 manuscripts equals 5 published books, 10,000 manuscripts equals 10 published books, etc.

Yes, there’s more work involved if more manuscripts come into an agency, but a skilled agent (or a less-skilled intern) can usually discern within a few paragraphs that the author has not submitted a commercially viable manuscript. Dealing with a large number of incoming manuscripts is generally more efficient if the losers are rapidly culled. If an agent finds one reason to reject a manuscript she/he should probably not continue reading to discover whether there may be other reasons to reject the manuscript. Better to start on a fresh manuscript that may not include a reason to reject.

However, if a disturbance in the Force reduces the number of manuscripts coming in the door, that’s bad news for the agent. If one in one thousand manuscripts is going to be published and the monthly flow drops from 1,000 to 500, the agent’s income is cut in half.

Since not all manuscripts are created equal, even worse news arrives if the creators of publishable manuscripts begin to do something else with their manuscripts instead of submitting them to agents. If the ratio of publishable to received manuscripts changes from one in 1,000 to one in 2,000, the agent’s income is again cut in half.

PG is over-simplifying the situation, but the bottom line for agents is that every successful indie author represents a loss of potential income for agents as a group and one agency in particular. And it’s likely not just a loss of a single book. While some successful indie authors do go into traditional publishing exclusively or on a hybrid basis, most don’t, so an indie author with the talent to support a successful career takes many books out of an agent’s pile of money-makers.

PG suspects that documents like the OP will seem very strange to authors in future years.

Charlie and the Chocolate Factory hero ‘was originally black’

From The Guardian:

Roald Dahl originally wanted the eponymous hero of his much-loved children’s book Charlie and the Chocolate Factory to be black, his widow has said.

In an interview with BBC Radio 4’s Today programme for Roald Dahl day on Wednesday, Liccy Dahl said: “His first Charlie that he wrote about was a little black boy.”

Asked why it was changed, she replied: “I don’t know. It’s a great pity.”

Her husband’s biographer Donald Sturrock, who was also being interviewed, said the change to a white character was driven by Dahl’s agent, who thought a black Charlie would not appeal to readers.

“I can tell you that it was his agent who thought it was a bad idea, when the book was first published, to have a black hero,” said Sturrock. “She said people would ask: ‘Why?’”

Link to the rest at The Guardian

The Broken Query System

From Books & Such Literary Management:

Broken things drive me crazy. Just call me the Fix-it Fairy. If something is broken–be it an object, a person, or a system–I have trouble accepting the state of brokenness. I want it fixed.

Last week I talked about the correct way to submit queries. Today I want to vent about the query system agents currently use to screen potential clients. Here’s a news flash: the system is broken.

Let me tell you why.

Queries are not necessarily representative. Some of the finest writers are some of the worst query writers and vice versa. We’re making seat-of-the-pants decisions on a bit of promotional-type writing.

Scarcity of Slots. Truth be told, most established agents carry a very full client list. That’s not to say that we don’t take on a new client if we fall in love with the book or the writer, but I struggle to find new clients through the query system. I often wonder if it is counter-productive. So how do we find clients? Each agent is different and I know, even in our agency, some agents have found a good number of their clients through the query system. But I tend to find clients two different ways: through referrals from editors, clients or published authors; and through meeting writers in person at a conference. As I write this I’m in Minneapolis for a the Northwest Christian Writer’s Conference. I always look forward to meeting writers in the flesh. Some writers I’ll be meeting for the second or third time.

So. . . can the broken query system be fixed?

I’m not sure it can be fixed. In a dream world I would say that the tsunami of queries needs to be stemmed but no matter how many times we stress research and matching the project to the agent we can’t make a dent because query spammers never assume it applies to them. The only writers who take heed are the very writers we most like to represent– writers who invest their time in research and follow all the guidelines.

Link to the rest at Books & Such Literary Management

Curtis Brown buys Ed Victor Ltd

From The Bookseller:

Curtis Brown has bought Ed Victor Ltd, following the passing of agent Ed Victor, aged 78, last month.

The shareholders of Ed Victor Ltd agreed terms to move their business to Curtis Brown and all rights will be handled by Curtis Brown from now on. Ed Victor Ltd’s client list includes former prime minister David Cameron, Andrew Marr, Nigella Lawson and Sophie Dahl, among others.

According to Ed Victor’s widow Carol Victor, the sale of the agency to Curtis Brown was Victor’s wish in such an eventuality. Victor was represented by Curtis Brown’s Jonathan Lloyd when he published The Obvious Diet with Vermilion in 2013, as Lloyd recently recalled in an obituary for The Bookseller.

Carol Victor said: “We are very pleased that Curtis Brown will assume the care of our distinguished clients and continue the work of servicing their back lists and looking after their future interests. I discussed this eventuality with Ed and it was his advice to turn to Curtis Brown, the oldest and most highly respected of agencies and the one he had chosen for himself, when he wrote his own book.”

Link to the rest at The Bookseller

In case you wondered what happens when your agent dies.

The Entitled Writer

From agent Wendy Lawton:

We talk a lot about the kinds of writers we love to work with but when we agents get together the talk often turns to the writers we hate representing.

And there is always one standout– one writer we all cite as the writer we’d most hate to represent. The entitled writer.

This is a tough business and it takes a team to make a project work these days. It takes a hardworking writer who has a “servant attitude.” That’s a hard term to define. It doesn’t mean the writer is low man on the totem pole. Some of our greatest leaders of all time had a servant attitude. It means that you will selflessly serve others.

My own job requires a servant attitude. My place in this industry is to serve my clients and to serve the publishers. I can think of no better work.

. . . .

It’s the writer who refuses to edit, claiming his first draft was good enough. After all, what’s an editor for?

It’s the author who won’t do his share of marketing. He doesn’t have time and besides, the publisher has a whole department to do this.

It’s the wannabe writer who can’t be bothered to read publishing blogs, work on the craft, or attend conferences. He just calls an agent on the phone and says he plans to get his book published and wants to know how.

It’s the person with a story who comes up to an author at a signing and tells her that he has a great idea for a book. Can she write it? They can split the profits.

Link to the rest at Books & Such Literary Management

PG wants to nominate “a hardworking writer who has a ‘servant attitude’” for some award somewhere.

Maybe  “The Best Reason Not to Call this Agent” award or the “If the Author is the Servant, Who is the Master?” award.

Or visitors to TPV can decide if a different award is more appropriate.

Agent Sarah LaPolla on how authors can stand out, negotiating offers, and the state of publishing

From Nathan Bransford:

Sarah LaPolla is an agent at Bradford Literary Agency, where she represents a mix of middle grade, young adult, and adult books, with a focus on literary fiction, science fiction, magical realism, dark/psychological mystery, literary horror, and upmarket contemporary fiction.

. . . .

NATHAN: Let’s cut to the chase. What’s the best way for an author to get your attention?

SARAH: The easy answer – by not trying. The bells and whistles are usually a turn off. When it comes to queries, the only thing that really gets my attention is a good story. That will always speak louder than gimmicks. And even if there is a particularly clever gimmick, or even if I know the author in some way, it doesn’t necessarily mean I’ll request a manuscript if I don’t love the story first.

The other way authors get agent attention is via Twitter – and with the popularity of pitch contests, this is just as useful in connecting with agents as querying is. I’m as introverted online as I am in real life, so I don’t speak for all agents here, but the best way to get my attention on Twitter is just be yourself.

I don’t follow or respond to everyone who replies to my tweets, but I’ve developed friendly relationships with authors over time. There are always names I recognize, and when I see those names in my query inbox they do get my attention a little more!

But replying to every single tweet or pitching your book on social media usually gets my attention in a bad way.

One of the most important element of an agent’s job is negotiating offers. How do you go about this? Do you call editors up and yell “ONE MILLION OR GO HOME” and then hang up?

Oh man, I wish! It’s generally way more civil than that, and I’m among a very email-friendly generation of agents and editors, which I am grateful for.

I might receive an initial offer on the phone, and go over basics (advance level, territory, royalties, subrights), but it all stays pretty non-committal until I can hang up and call my author. Then the bulk of negotiations are finalized via email (usually), and it’s a lot of “let’s see what I can do… OK can’t do that, but can definitely do this… and we’ll add in that, but… OK…. OK… cool cool cool” until there’s a deal! Haha. Isn’t it all so glamorous?

It’s when there are multiple offers and there’s an auction where I break into a sweat and the more Hollywood-style bargaining comes into play. At that point it’s about maintaining composure, staying honest with everyone involved, and ultimately letting my author trust their gut after I give them all of the information they need to decide what’s right for their career.

It seems like we’re in a moment in publishing where there are a handful megabestsellers and lots of other books are languishing. Have you experienced this, and has it changed how you approach your work?

This is an interesting question. I started in publishing during the “OMG what is digital?” panic and that was around the time the class divide (if you will) became more apparent in books. So by the time I started taking on my own clients, publishing had come out the other end of that.

My own approach to agenting never needed to change. The agents I interned for and assisted largely had midlist authors, and they were excellent authors who provided their agents with a livable wage (even by NYC standards!). If I were in grad school, I’d attempt a thesis comparing the declining middle class with the declining midlist!

I think what’s happening in publishing is true across all industries right now. There are A-list pop stars, and the ones finding their following on iTunes and YouTube. There are Hollywood blockbusters and reboots galore, and then there are screenwriters desperate to get their original material into festivals.
. . . .

What do you look for when you’re considering an author who has previously self-published a book or forty?

New material, mostly.

If an author is querying a book they already published, it raises questions – Why did you self-pub in the first place? What were your sales figures? What are you hoping an agent will do for you? I want all of those questions answered in the query.

Sometimes authors only self-pub because they think it’s the path to a traditional deal (it isn’t). Other authors self-pub because they didn’t feel they needed a traditional deal for that particular project, but now money is coming in and they have this new book that might be more mainstream and they need help.

I don’t begrudge anyone for self-publishing, but if they’re now approaching me for representation, I need to know the full scope of that decision and where they hope to go from there. Which comes back to “new material.” If you already self-pubbed 100 books and you’re approaching an agent, be prepared to send them a project that’s all-new, never-been-published that they will be able to send to traditional publishers while helping you manage your previously self-published backlist.

Link to the rest at Nathan Bransford

Writers, Scam Artists, Agents, And More (Sigh)

From Kristine Kathryn Rusch:

Just when I thought it was safe to get back into the water…

I’m editing a lot these days. I only edit short fiction projects. Anthologies, anthology series (Fiction River), the occasional nonfiction book, and some magazines. I’m also consulting with the fine folks at WMG Publishing, because they’ll be handling the contracts for the revival of Pulphouse next year. Dean’s vision for Pulphouse includes reprinting some of the older stories, which means we have to deal with estates.

Too often, estates mean agents.

But even some lazy-ass living writers give their agents control of everything. It took me one year—one year—to get my hands on a non-fiction reprint that I wanted for a project of mine. The centerpiece for that project was an editorial written more than 20 years ago by a writer who had forgotten they had even written it. This writer, a friend of mine, doesn’t do email, and mostly stays off-line. (I know, I know.) I didn’t know about their tech phobia when I started into this, and had sent five different emails before I asked another editor friend how to reach this writer.

The editor advised snail mail.

Before I resorted to that, though, I called. The author and I are friends, after all. On the phone, the author told me that their agent handles everything. I do mean everything. The author—one smart cookie otherwise—can’t be bothered to concern themselves with touching anything to do with business. I had no idea this author was an Artiste, but I guess I know that now.

I also know why most anthologists refuse to reprint this author’s work.

I was pretty excited about this non-fiction project when I started it. I missed the publication window because of this agent and this writer. Fortunately, my publisher pushed the deadline back. We’ve pushed it back again, and again, and again. And frankly, I’m not feeling it any more. I have completely soured on the project.

The big bad agent, by the way, negotiated a horseshit deal for the writer that essentially gave me more rights than I would ever need. I offered the usual fee, which the agent did not negotiate up (although he could have). By that point, I was too pissed to give a break to these people. The amount of money—on publication, if there’s a publication—to the agent and the author will be negligible.

. . . .

Who the hell gives over control of everything, I mean everything, to an agent?

Oh, most writers. Never mind.

Still, I expect better. And if a writer is going to give control of the business side of her work to an “expert” then the expert better be damn good at negotiating and taking care of the writer’s interests.

So far, all of the agents I’ve encountered who handle everything are the worst negotiators in the business. They let things slide, they don’t care about being paid, they don’t ask for the right kind of language in a contract, they license the wrong rights or sell those rights outright.

. . . .

On one of the many projects I worked on recently, I contacted a writer to reprint one of their stories. I wrote a standard email letter, requesting permission to reprint, and the writer wrote back that they had no idea if the rights were available. The writer said I should contact the editor who originally published the story and ask.

I was taken aback. I had never had a writer say such a thing before in all of my years of editing. I knew the editor in question, and had worked with him many times. Never once did that editor, in all his various projects, try to control all the rights to a project. It wasn’t in his standard contract, the one he used for his anthology projects. It wasn’t in his special contracts, for other projects. It hadn’t ever happened, not in years of dealing with this man.

Honestly, this is where Writer Me and Editor Me had a conflict. Writer Me decided that Editor Me should get clarification from that writer before going to the writer’s editor. You see, Writer Me figured the editor in question would be confused at best or insulted at worst by the suggestion that he controlled the rights.

I did not want to offend him—as a person, not as an editor I might work with.

So I asked for clarification from the writer on the problem and added, as I do with many writers—bestsellers and nonbestsellers alike—that I would be happy to look at the clauses or contract in question (with the pertinent information like SSN and payment blacked out) to see what rights the author had actually sold. After all, the author clearly had no idea. Frankly, I figured the author didn’t know how to read a contract, and certainly didn’t know copyright law. I’ve seen that dozens of times before.

Link to the rest at Kristine Kathryn Rusch

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.

The Career View

From Books & Such Literary Management:

What kind of things do I look for in a new client? Things like being knowledgeable and invested. And writing books that have commercial appeal. And offering fresh ideas and a fresh voice.

I also look for a writer who is realistic and prepared for the career view. When I get a query that insists I look at the “next bestseller,” I toss it in the round file. Yes, there are a number of debut books that became overnight successes. Just like there are lottery winners who recently won hundreds of millions of dollars. But does that mean if you buy a lottery ticket you’ll win millions?

We can’t plan a career around hoping for a miracle. Many fine, fine published books go virtually unnoticed every year. Reaching bestseller status is a convoluted combination of hard work, writing skill, word-of-mouth and that unpredictable  combination of events that take an author to the tipping point.

I’m looking for writers who are realistic– knowing that they are going to have to pay their dues, possibly with very little return in terms of attention and money for the first few years.

. . . .

So I’m looking for writers who are prepared financially for the long haul.  When we have clients who are desperate to make money we have a problem. This industry is not like a job. The money is sporadic and never guaranteed. A writer needs to be able to support himself while he builds his career. Or else you need a “patron of the arts,” as one writer describes her spouse.

. . . .

I also look for writers who have enough years to build a career. As agents, we pour ourselves into our clients. The first several years we may see precious little return on our investment. That’s okay, that’s our part of the financial long haul. If we believe in a writer we’ll work like crazy with absolutely no return in the early years if necessary. But if a debut writer who is seventy-five years old comes to me, I need to be positively bowled over by her book because, even if she writes for ten years, it’s barely enough time to really get a career launched. Of course that’s not to say I wouldn’t take her on if I loved that one book. I’ve done it more than once.

I look for settled writers. If a writer tells me he’s going to be moving to Sri Lanka for a period of five years I have to wonder how we can build a career with an inaccessible author.  Writers who take “writing breaks” to raise children, to care for parents, or to “find themselves” usually find themselves with a stalled career.

Link to the rest at Books & Such Literary Management and thanks to Dave for the tip.

Eight reasons that even a good book is rejected by publishers

From Scroll.in:

Several years ago, as an aspiring novelist with stardust in my eyes, I used to spend most of my waking hours in Yahoo’s Books and Literature chatroom in the company of fellow aspiring writers. I clearly remember how one of the main topics of conversations used to be the number of rejection slips one had received on that particular day (or the previous week), agents/publishers who had requested a synopsis or proposal, and those who had just not bothered to respond. All of us were united by the looming sense of uncertainty, suspense, and the palpable realisation that the odds were firmly stacked against us.

Today, having spent more than seven years on the other side, first as a consultant and then an agent, I think many writers have wrong notions about rejections. While most books are rejected because of poor quality and incompetence (as they should be), there are several other factors that play a role in publishing decisions. And these affect “good” books too.

A book with no market

Good books are often rejected at the acquisitions meetings at publishing companies, where people from sales and marketing factor in the target audience, potential print runs, and profit margins. Rejections are more common in case of fiction ( especially genre fiction), poetry and short story collections. Several publishers have revised their minimum print run from 2,000/3,000 copies to 5,000.

As a result, books with a dedicated readership and market no larger than 3,000 buyers are being turned down. This partly explains the palpable shift towards publishing books written or at least driven by celebrities, or mass market books like the ones by Savi Sharma and Ajay K Pandey.

A book by a writer with no network or marketing abilities

Writers are increasingly being asked to be closely involved in promotional activities for their books. While some of them might be open to the idea, others feel that it is their works that should be doing the talking. One question that writers are sometimes asked: how many books can you sell within your existing networks – both professional and personal?

Sometimes a writer is also asked about their contacts with the media and with celebrities and influencers who can be roped in for blurbs and high-profile launches. In today’s age of literary festivals, it helps to know some influential festival directors as well. Eminently publishable books are at times rejected in the absence of such contacts or commitments.

. . . .

A book evaluated by the wrong editor

Authors often end up sending their submissions to the wrong editor: a commercial novel may end up in a literary editor’s inbox, or a mind- body-spirit title, in that of the current affairs editor’s. Even when the submission may have reached the right editor, they may not be too familiar with the subject. The more conscientious among the editors will not sign up even an eminently publishable book if they feel they won’t be able to add any value to it. Such misdirected submissions are wasted opportunities, since publishing houses rarely reconsider books, even if they feel they have been read by an unsuitable editor.

Link to the rest at Scroll.in and thanks to Dave for the tip.

Red Flag Alert: Loiacono Literary Agency, Swetky Literary Agency, Warner Literary Group

From Writer Beware:

In the late 1990s, when Writer Beware first started up, the digital revolution was just peeking over the horizon. Traditional publishing was still the only path to publication, and literary agents were the principal gatekeepers.

As a result, there existed a huge and lucrative subculture of scam literary agents, who fed on writers’ hunger for publication and turned the (false) promise of access into money. Upfront fees, editing referral schemes, vanity publishing scams: the list was endless.

No more. With the enormous growth of small presses and the expanding number of self-publishing options, agents are no longer the be-all and end-all of a writing career, and fewer writers decide to seek them.

. . . .

There’s an impressively large list of book placements on the website of Loiacono Literary Agency (motto: “Where ‘can’t’ is not in our vocabulary!”). In this case, though, size isn’t everything, because apart from a handful of sales to larger publishing houses, most of the books have been placed with small presses that don’t require authors to be agented. For most of the publishers Loiacono has worked with, the authors likely could have placed the books on their own and saved themselves a commission.

This isn’t why you hire an agent. Another thing you don’t hire an agent for: hooking you up with vanity publishers. A very large number of books on Loiacono’s list have been placed with Argus Publishing. Argus, which has also done business as A Better Be Write, A Book 4 You, and A-Argus Book Better Book Publishers, charges a four-figure publishing fee.

. . . .

The 25 or so book placements claimed by The Swetky Literary Agency (don’t you love that dawn-of-the-web vibe) is much, much smaller than the list claimed by Loiacono.

In other ways, though, it’s similar. There’s a handful of placements with reputable independent and specialty presses; the rest are “sales” to vanity publishers (Koehler Books) and small presses that authors can work with on their own. Also, even if every one of Swetky’s book placements were impeccably reputable, 25 sales over the nearly 15 years the agency has been in business is a pretty sad track record.

. . . .

I’ve heard from multiple writers to whom Faye Swetky offered representation or the possibility of representation, and then told them that their manuscripts needed editing. Fortunately, she knew a terrific editor who might be willing to work with them: David J. Herda, a much-published author of nonfiction.

. . . .

Sarah Warner, principal of the Warner Literary Group, has an impressive background as an acquisitions editor. It would seem to be the perfect set of qualifications for a successful literary agent.

And yet, Warner’s track record is tiny. Since the agency’s founding in 2011, she appears to have made just 12 deals. Seven of these are with solid publishers–but the rest are books by agency clients that have been placed with the agency’s own publishing division, Hedgehog & Fox. In fact, with the exception of one book authored by Ms. Warner herself, the whole of Hedgehog & Fox’s miniscule list appears to be made up of agency clients.

Something else agency clients have in common: lawsuits. Warner Literary Group has been sued by three of its authors–a huge percentage for such a small agency.

Link to the rest at Writer Beware

Is It Time, Dear Writer, To Ditch Your Literary Agent?

From Chuck Wendig, Terrible Minds:

It used to happen once every couple of months. Then once every month, now I’m up to about once a week. What I’m talking about is, authors emailing me to see if it’s time to leave their agents.

When this happens, the writer often frames it like, “Well, how do you and your agent do things?”

And I say things like:

ME: She sells my books? I dunno, I write them, and then Stacia helps them navigate the BOILING CHAOS STORM that is the publishing industry?

THEM: But what about emails?

ME: Emails, like, Hillary’s emails?

THEM: No, does your agent answer your emails?

ME: Well, of course.

THEM: In what timeframe?

ME: A reasonable one? Actually, an unreasonably fast one, usually — within the day, sometimes within the hour. Pretty fast turnaround to questions and stuff.

THEM: She not only responds to your emails, but she responds to them quickly?

ME: She does, and in fact endures a great deal of nonsense from me, including occasional Career Freakouts and other psychological gesticulations. But given your response, I’m guessing yours doesn’t… respond at all?

And from there, we uncover a host of uncomfortable sins. And this can be for a lot of reasons. Maybe the agent is wrong for you, or you’re wrong for her. Maybe she’s too new. Maybe she has too many clients. Maybe you’re too small a client and she’s got bigger beasts to hunt. Maybe she’s a terrible agent — or maybe you need to recalibrate your needs.

I never really like to recommend that a writer leave her agent — not because that’s a bad idea, but because I’m not comfortable being the one to say, YEAH, TIME TO JUMP OUTTA THE PLANE, as that’s awfully easy for me to say, because I’m buckled up in a nice, cozy seat. Telling you to do the hard thing is easy when I don’t have to do it with you. Plus, then you jump out of the plane, get sucked into a turbine, are turned into a red mist, oops.

. . . .

1. Your agent doesn’t communicate with you in a timely manner — or at all. That’s not good. Your agent is the champion of your book and ostensibly, your career. They are its babysitter — and I don’t mean that dismissively, I mean, you want your child to be in capable hands, and further, you want that babysitter to answer the phone if you would like to find out how your baby is doing. If you go weeks without hearing anything from an agent, or months, or forever, you have a problem. It probably means they forgot your baby at the mall.

. . . .

5. Your agent doesn’t seem to like your chosen genres. This is also a thing. You write erotic epic choose-your-own-adventure books, your agent reps self-help books for narcoleptic parrot-owners, and ne’er the two shall meet. You want an agent familiar with the genre of what you write, not just in terms of the books themselves but also in terms of the industry circles and imprints that support that genre.

. . . .

8. The agent seems to be on the side of the publisher, not the author. An agent who defends unethical publishing behaviors is not an agent you want to have. You certainly don’t want an agent who is hostile to publishing, and who has a realistic view of what you can get away with and what slings and arrows you’re probably going to have to suffer — further, you also don’t want to be a prima donna to the agent, acting like, WELL, YOU DIDN’T GET ME A MILLION DOLLAR ADVANCE SO OBVIOUSLY YOU LOVE THE PUBLISHER MORE THAN ME. But at the same time, an agent who seems to be more interested in protecting his relationship with the publisher than the relationship he shares with you, the author… eek, yeah, no, not good.

Link to the rest at Terrible Minds and thanks to Lou for the tip.

When your agent wants to charge you a fee

From QueryTracker Blog:

There are two kinds of lousy agents. The first is the scammer, the kind who wants to get money from authors without in any way performing the services an actual agent ought to perform. When you know the basics about the business, you’ll recognize those. They ask you for money just to read your manuscript and refer you for “necessary” editing services to their friends, many of whom are actually themselves operating under a different business name.

The second kind of lousy agent is just…slippery. That agent is harder to recognize from the outside. While you know to run from agents who charge reading fees, for example, what do you do about one who brings up “administrative charges” after the contract is signed?

Today a writer sent me a copy of an email his agent had sent him. This agent is a legit agent at a legit agency. It’s just that….well, you’ll see.

The agent sent the writer an email about changes to their literary agency agreement, with the expectation that the writer would sign it and be thrilled. (Note: I’ve removed all references to The agency and rephrased in order to clarify in parts. The content is the same, and I verified on the agency’s website.)

In the current contract, the only charges are for any extraoridinary expenses that may occur (courier services, foreign exchange, etc.), $250.00 per year, and a $500.00 cancellation fee should the author wish to terminate the contract.

Please note: don’t sign a contract with that stipulation. Why should the author be charged a fee to break the contract? There’s no matching fee for the agent if the agent decides to fire the writer, after all. Usually an agented writer is pleased to stay onboard. When the writer wants to leave, often it’s because the writer has issues with the way the agent is representing the manuscript. By charging this ridiculous contract-breaking fee, the agent has stated that s/he would rather have a bitter, angry client than just part ways amicably.

. . . .

Then we get to the fun part, where the agency describes their new contract, introducing an administrative fee structure:

The first year we represent a manuscript we charge five hundred dollars ($500.00), then an additional two hundred fifty dollars $250.00 each year until we place it with a publisher. Upon securing a publishing contract, the agency receives 15% of net revenues.

On their website, they try to sweeten the deal: they explain that this fee helps them partner with writers who are serious and willing to invest in their careers.

. . . .

This agent seriously wants you to fork over five hundred bucks before even starting the job, and that $500 won’t come out of the advance when the book sells. Then, if the agent fails to sell your book in one year, the agent gets rewarded with an additional $250.

Link to the rest at QueryTracker Blog and thanks to Deb for the tip.