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July 25, 2014

Self-Publishing and Author-Agent Agreements: The Need for Change

Posted by Victoria Strauss for Writer Beware

Earlier this week, I ran across a blog post by best-selling author Claire Cook  about the process by which she decided to become a hybrid author, ditching her high-powered agency in the process. It's an interesting story--but what really caught my eye was this:
And then one day on the phone my agent informed me that in order to continue to be represented by this mighty agency, I would have to turn over 15% of the proceeds of my about-to-be self-published book to said agency. Not only that, but I would have to publish it exclusively through Amazon, because the agency had a system in place with Amazon where I could check a box and their 15% would go straight to them, no muss, no fuss.
I've warned in the past about interminable agency clauses in author-agent agreements (language through which an agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates for your book, but for the life of the book's copyright). One of the many concerns raised by such language is what happens if you want to self-publish backlist books that the agency originally sold for you. With an interminable agency clause, might your agency feel entitled to a share of your self-publishing income?

I don't know if Cook's agency agreement included interminable agency language. Even if it did, the agency's commission claim wasn't being made on her backlist books, but on an original novel that the agency had never submitted or sold to a traditional publisher. This is a completely different issue. Simply because Cook was the agency's client, the agency felt it had a claim on her original writing even though it had no hand in placing it--and, moreover, that it had the right to require her to use its own self-publishing channel, rather than a platform or platforms of her choice.

Contract language often lags behind technological innovation. For instance, years after the advent of digital publishing, many publishing contracts still don't include adequate rights reversion language (I've written here about why that's a problem).

The same is true for author-agent agreements, many--if not most--of which don't address self-publishing at all. Right now, I'm sure that most self-publishing questions are dealt with amicably one-on-one between author and agent. But with more and more writers choosing to become hybrid authors, and more and more agencies branching out into publishing and self-publishing-related activities, those kinds of informal resolutions aren't enough. For the protection of both author and agent, author-agent agreements need to explicitly address what happens (or doesn't happen) when clients self-publish, either on their own or through the agency. 

To date, I've seen one author-agent agreement that does this. I'm sure there are more out there, though I'm guessing they're the exception. They need to become the norm, and sooner rather than later.

In the meantime, authors would be wise to discuss self-publishing with their prospective agents, including:

- What happens if I decide to self-publish my backlist? (If you're a debut novelist, this possiblity may seem an awfully long way off, but you are hopefully signing on with your agent for the long haul, and at some point your books are going to go "out of print.")

- If the agency has its own self-publishing system or publishing venture, will I be required to use it?

- What's your position on hybrid authors? Will it be a problem if I want to self-publish original work? What, if any, claims will you make on such work?

- Will you market subsidiary rights for my original self-published books? (Responses on this will vary; some agencies may not be willing to rep subrights for books they didn't sell.)

Be sure to get, or confirm, the responses in writing.

16 comments :

Sue Bursztynski said...

Goodness, I never dreamed this sort of thing was going on! Of course, I've never had an agent except once, for about six months, before she closed down to spend more time on her own writing. But with technology changing the face of writing it was going to happen sooner or later, wasn't it? I can remember the Australian Society of Authors warning members to keep an eye on their digital rights because contracts were out of date and publishers were bound to interpret them to their advantage - is a book, for example, ever really out of print if it's available POD? The agent you mention certainly has a lot of chutzpah!

JeffO said...

Thank you for the post, Victoria. Yet another thing for us to be aware of.

Pat Dilloway said...

If you can get 15% for doing nothing then go for it. That's good business.

Lori L MacLaughlin said...

Thanks for another eye-opener!

Ripley King said...

I'm not surprised, but it does take a big pair of wrinklies.

There are agents who do work with hybrids, but it takes a lot of research, and never be afraid to ask questions.

You are your brand, so protect yourself.

Vicki Weisfeld said...

What a helpful post! I saw that same paragraph about the agent's outrageous request and thought she was on a fishing expedition--"it can't hurt to ask"--but what nerve! Possibly some authors would let an agency get away with this, not thinking it through. Your questions at the end should be cut and taped to the desk of every author out there.

barrysullivan said...

Great post! I imagine there are agents who might sneak this in with debut novelists, since we don't know much about how the industry works on that side... which makes blogs like this helpful!

I have a somewhat related question for you, Victoria. How apt are agents to sign to represent a book that was previously published by a very small, local publisher who never did anything with it -- but who the author themselves sold the bulk of the 5000 or so books sold? (Contract is cancelled between author and publisher due to that reason.)

Anonymous said...

It is Claire Cook. Not Claire King.

Victoria Strauss said...

Oops. Thanks, Anonymous.

Carol Sabik-Jaffe said...

You're welcome, Victoria. (Wasn't sure how to post yesterday)

Carol Sabik-Jaffe said...

... And still don't today. Know how to post correctly, that is. I was "Anonymous" until now! Claire's blog was both eye opening and depressing. Thanks for adding to it.

Anonymous said...

My agent did this. In 1999, I actually sold the novel myself, and brought her in to "negotiate" the agreement. She negotiated by inserting an agency clause and increasing the number of author copies from 10 to 20. 10 years later, the book went out of print and the rights reverted to me. I issued the book myself in paperback and as an ebook. This agent tried hard to bully me, insisting that she was entitled to 15% of anything the book did ever.

This was an agent considered "highly reputable" on Absolute Write.

I got by way by standing up to her, but of course we parted way. She is still furious and believes she was wronged by me.

Victoria Strauss said...

Anonymous, did the author-agent agreement you signed with your agent include interminable agency language? Because that's the kind of claim she was making. Good for you for standing up for yourself.

I'd be interested to know the name of the agent, if you'd be willing to share (in confidence, of course). Email me at beware [at] sfwa.org.

Victoria Strauss said...

Sue Bursztynski--

You asked "is a book, for example, ever really out of print if it's available POD?" That's exactly the problem, and it's the reason why reversion clauses in life-of-copyright contracts need to set sales minimums below which the author can demand--and receive--their rights back. Otherwise a publisher can sit on the rights to a non-selling book for as long as it wants, since it costs little or nothing to keep it digitally "available."

Tying rights reversion to sales minimums is certainly more common in contract boilerplate than it was a few years ago, but many contracts still don't do this, leaving the decision to take a book off the market entirely to the publisher's discretion. This is an area in which, if you can't negotiate changes, you need to consider walking away.

Ilana Waters said...

Very informative article, and certainly very timely. Although I agree that (hopefully) most of these issues are worked out amicably, you hit the nail on the head when you said "Get it in writing."

Also, congrats on the release of COLOR SONG! :-D

Bartosz Adamiak said...

Very useful article. Thank You!

 
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