Wednesday, January 11, 2006

A.C. Crispin - 31, "What Real Agents Do" - Part 2

Okay, here’s the second post in my “What REAL agents do” series. This is a big topic, so I’ll probably devote the entire post to this one subsection, which is: RECEIVE AND DISBURSE ADVANCES, ROYALTIES AND OTHER MONETARY PAYMENTS.

(At this point we’re far beyond the point people who deal with scam agents would ever reach. When you’re dealing with scammers, you never Get Paid -- You Pay.)

Okay, so when we last left our hypothetical agent and writer, a commercial publisher had made an offer on the book, and the agent, in consultation with the writer, had negotiated a contract for the sale. It’s now the agent’s job to receive the advance payment from the publisher, check that it’s the correct amount, and then deduct his/her commission and expenses from the payment, before cutting another check and sending that on to the writer.

You hear a lot of back and forth these days on whether it’s kosher for agents to collect “submission expenses” from writers before a sale is made. Writer Beware’s position, which is shared by most top-tier agencies, is that good, legitimate agencies with decent track records of sales let billable expenses accrue and then deduct them from an advance or royalty payment along with the agent’s commission.

What’s the standard literary agent’s commission these days? 15%. A very few agencies still charge 10%, but that number is shrinking. It’s interesting that quite a few scam agencies tell writers they charge only a 10% commission. Writers who see this are often impressed that they charge a lower commission than the top tier agents. But when you’re dealing with an incompetent or scam agent who never makes a sale anyway, the amount of commission is moot, right?

What legitimate expenses do legitimate agents charge for?

Messenger service to get a manuscript across Manhattan and into an editor’s hands quickly.

Express mail or other expensive (especially overseas) postage.

Photocopying manuscripts, though most agents never make more than a few copies of a manuscript while trying to sell it, because they know how to TARGET the submissions.

(Real agents don’t do what Victoria and I term “shotgunning” of manuscripts – sending submissions to every publisher they have on record, regardless of what the imprint publishes, the editorial staff’s taste, etc. That’s something incompetent agents/scammers do. We’ve seen Agent F, for example, with his multitude of agencies, send novels to non-fiction publishers, and vice versa. We’ve seen him send romances to mystery editors, and adult horror to children’s imprints. That’s because Agent F (maybe I should just call him Bobby) HAS NO IDEA WHAT THESE COMPANIES OR IMPRINTS PUBLISH. HE HASN’T A CLUE ABOUT THE TASTE OF ANY OF THE EDITORS.

Actually the above diatribe is rather moot these days. Bobby never did submit much, and these days he’s pretty much stopped making any pretense towards submitting manuscripts for his many victims. Instead, he gets his money, from all his various “agencies” from editing scams. But Writer Beware still has the documentation from his early days, when he sent out a few query letters, with multiple authors crammed into each boilerplate letter. MOST unprofessional!)

There are one or two instances when a legitimate agent may make as many as 10-12 copies of a given book. Sometimes in trying to make foreign sales, they’ll send out multiple copies by way of their foreign rights department, to many of the foreign agents they deal with. And, of course, they will send out multiple copies when they are running a BOOK AUCTION. Book auctions are not something most beginning writers will have to worry about with a first sale, especially novelists. It can happen, but it’s rare. In a book auction, the agent talks about a book, or a series, to multiple editors at multiple publishing houses, and if they express interest, sends the book, or book proposal or trilogy/series outlines around for review. Editors who receive copies are given a certain time to review to work, then a day is set for the auction, which is carried on by phone. The agent and the author then select the publisher that has made the best offer to be the purchaser.

Before leaving the topic of legitimate expenses charged to the author, I will comment briefly that some scammy agents/agencies play fast and loose semantic games with the “reimbursement for submission expenses” that is allowable under the AAR (Association of Authors Representatives) Canon of Ethics. The AAR Canon forbids “reading fees” per se, so some agencies have been smart enough to drop that term, and call the fees they charge, “reimbursement of submission expenses” which is allowable under the Canon. (Writer Beware wishes heartily they’d change this, as it’s VERY misused as a seemingly “legit” way to collect upfront fees.) But be advised. I think in all the years I’ve dealt with my agent, the most I’ve ever been charged for “reimbursable expenses” deducted from a payment I was sent, was something on the order of a hundred or so bucks. And this covered a year or more of dealing with my projects. The money was deducted from one of my advances, or a royalty payment, I forget which. The difference here is that many scam agents manage to finagle writers to pay them hundreds of dollars every six months as the “reimbursable expenses” – and they get them to pay it BEFORE A SALE IS MADE. That’s why WB always uses the term “upfront fee” in our warnings. Got that?

Of course in dealing with publishers’ royalty statements, legit agents check the math, and let the publisher know if they’ve underpaid the author. This does happen…it’s happened to me more than once. Reading royalty statements and doing these calculations is actual work, and I’m glad I don’t have to do it. My husband and attorney do read over my royalty statements, but the main burden of checking the publisher’s figures falls on my agent.

The agent also handles money for foreign sales, often splitting a commission with a foreign agent. Writers often wind up paying a higher commission on foreign sales, for that reason. The agent would also handle the monies received from things like gaming rights, audio book rights, film rights, etc. Most legit agents have a Hollywood screen agent they use if one of their clients writes a screenplay or has a book optioned for screen rights. (In my experience, this is rather rare, and I don’t know much about it. It’s never happened to me.) Beginning writers seem to imagine that film options happen all the time. Trust me, they don’t.

Even if the writer leaves an agent, the agent remains the “agent of record” on the book, and continues to receive and disburse the payments on the work, unless there is some separate agreement to transfer those rights, which is unusual, or until the book goes out of print and the rights have reverted to the author.

Okay, that about does it for our third agent task.

Hope you’re all well!

-Ann C. Crispin
Chair, Writer Beware
www.writerbeware.com

3 comments:

Random Walk Writer said...

It might be useful to cover what happens if the "agent of record" goes out of business or dies.

James Goodman said...

(maybe I should just call him Bobby)

That is WAY nicer than some of the names I have called him.

Great post, very informative.

Michael Capobianco said...

I'll trt to answer random walk writer's questions, but keep in mind that I'm not a lawyer.

When the "agent of record" dies or goes out of business, what happens then should be specified in a written contract between you and your agent. If there is no written contract and the agent dies, the agency of record passes to the agent's heirs or assigns. If the agent's company goes bankrupt, the agency of record is treated like any other asset and distributed to whomever the bankruptcy court deems appropriate.