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My friend "Bob" wrote a book for a publisher that earned out his substantial advance and eventually sold tens of thousands of copies. After two years of sales, the book needed to be updated; the subject matter was topical and recent events meant that the first edition was no longer current. The publisher offered a significant advance, a fifth of the original advance, for a new chapter and touch work that would constitute a revised second edition. He agreed and finished the work in just less than a month.

Their original agreement stated that "Bob" would be paid royalties in January for books sold the previous January-June. He did his re-writes for the second edition in September. When his January royalties payment came, he discovered that his "advance" for the revised edition had been subtracted from the royalties he had earned January to June. In effect, his advance was not an advance against future earnings but an advance taken from money he was already owed. His net gain for a month's effort was being paid in late September rather than in January.

Bob was furious. His agent told him this was "standard industry practice." Is Bob silly for being angry with publisher and agent?

I think Bob is silly for not having paid attention to the contract for the revised edition when he signed it. But what’s done is done. Yes, it is “standard industry practice” to bundle together a revised edition with the original. Why wouldn’t it be? It’s essentially the same book. However, “standard industry practice” can always be changed. I have negotiated a number of revised editions and in some cases, with some publishers, I have been able to get them separately accounted from the original edition, essentially accounting them as if they were two different books. With other publishers, however, I wasn’t so lucky. They were adamant that the books be accounted jointly.

What Bob should also be aware of, and what is probably of a greater concern than the advance being deducted from royalties of the original, is that it is very likely his royalties, if he had an escalating royalty schedule, will start again from the beginning. This is the most frustrating issue for me and my authors. Just when you finally reach that break and are earning a higher royalty percentage, the publisher asks for a revision (usually needed) and the royalties start over again at zero (zero copies, not dollars).

Essentially, though, Bob has not lost any money, he just didn’t gain like he thought he would. Remember, the advance is just that, an advance against royalties. So while Bob saw a decrease in his most recent royalty statement it’s not like he didn’t get the money anyway. And sadly, I think Bob is silly for being angry at his publisher and agent. I assume the agent negotiated to the best of her ability and the publisher is not out to benefit the author, the publisher is only working to benefit itself. Bob should be angry at himself for not carefully reading contracts before he signs them.

Jessica

Tis the season for royalty statements.

When I get a royalty statement, I always try to pull out the contract (that legal document by which you live or die in this relationship) and check up. This time, I found a discrepancy in royalty rates on foreign rights. A polite inquiry has been made and things should easily be cleared up. The end result should be a supplemental check for me! Hurrah!

Sometimes, math for writers is fun!

The dreaded and very important delivery and acceptance clause. Did you know that you don’t get paid until your work is delivered and accepted? While everyone seems to know this in theory, few seem to understand what that really means until they are hungry for a check, or just plain hungry and need a check.

This means that if it takes your editor six months to actually read your manuscript you could be waiting six months, or more, to get your check. Even though you delivered on time and even though you are already hard at work on your next project. Frustrating, isn’t it? What actually deems acceptance depends on the publisher. Some won’t officially accept the book until they are through what they call author review. That means the book is edited, copyedited, and the author has reviewed and accepted all edits. Others will want to make sure revisions have been completed by the author and accepted by the editor. Some publishers will not allow a d&a (delivery and acceptance) check to go through until the manuscript is in the copyeditor’s hands, and others will gladly put it through the minute the material is delivered. What you end up with really depends on your publisher and on your editor. It can also be dependent on your relationship with your editor.

In an ideal d&a clause you will have wording that gives the publisher a limited time to read and accept your work. In other words, ideally the publisher will need to respond in about 45 days. Of course not all publishers will agree to this, and even if it’s in there it doesn’t always mean editors will make the dates. You should also have some sort of description as to what is to be delivered. Is it expected that your book will be 80,000 words, but what else will you need to supply? Are you also required to include photos, maps, or an author bio? As much as possible you want the delivery and acceptance clause in your contract to tell you, and the publisher, what exactly is required to deem the material acceptable. You also want information in there that provides for what happens should the publisher deem the material unacceptable. Usually this means a time frame as to how long you have to revise the material and make it acceptable.

The most important advice I can give to writers when it comes to your d&a clause is to make sure the delivery date is actually attainable for you. Don’t feel pressure to submit quickly just because you’re afraid the publisher will lose interest. They wouldn’t have bought the book if they thought they might lose interest. Pick a date that not only works with your schedule but, most important, that you can reach while writing the best book possible. And second, make sure when reviewing your d&a clause that there are no surprises. If you expect to deliver maps, that’s fine, but if your d&a clause states that maps are required and you had no intention of providing maps, you might be getting yourself into a situation that’s going to cause nothing but headaches down the road.

As with anything, on all contracts, if there is something in the clause that looks wrong or out of place to you, call your agent. You never know what might be standard and non-negotiable in certain contracts or what she negotiated on your behalf.

Jessica

If you’ve been following the blog I’m sure many of you remember the story of the agent who fired bestselling author Jennifer Cruisie. But what happens when a published author feels that she needs to make the decision to fire her agent? How does the author make that very scary change? What happens to the author’s work, whether it’s sitting on an editor’s desk or the agent’s, and what does said published author need to woo a new agent?

As for how an author makes that decision, I think I’ll have to leave it up to the authors to tell me. Granted it’s not easy, deciding that your agent isn’t right for you, firing her, and suddenly flying solo (at least until you can find someone new), but making the switch is usually a lot wiser than sticking with someone simply out of fear. Remember how the agent search is like dating? Well, having that relationship is like marriage, and certainly no one expects or plans to have to be out there again and start “dating.” But just like some marriages, some author/agent relationships aren’t meant to last forever.

What happens next really depends on the author, the agents, and each and every individual experience. Typically, though, if you are planning to continue in the same vein of what you’ve already been writing successfully, you won’t need a proposal to find a new agent. You’ll simply need to set up some interview times. When I’ve been approached by authors looking for new representation I’ll always ask for a copy of a proposal or manuscript if part of the reason you’re switching is to go out in new and different directions. If not, I’ll only ask to see a copy or two of some of your published works. Even if I’ve read you before I might want to refresh my memory and make sure that I feel I can represent your work. After all, reading for pleasure is a lot different than reading for representation.

Most important, though, I’ll ask what your goals are, what direction you’re hoping to take your career in, and what exactly you’re looking for in an agent. I don’t need you to give me all of the dirt and tell me how horrible your previous agent was, but it does help to know why you’re leaving her. I need to know whether or not I think your goals are realistic for me. In other words, whether I think I can do what you didn’t feel your previous agent was doing for you.

The biggest question asked was what happens to the author’s previous work—those handled by the now-fired agent? Obviously anything that was contracted will remain under representation by your previous agent. In other words, she’ll still be the agent of record for those projects. As for what happens to submissions that she made and that might still be sitting on an editor’s desk, that depends on your contract with the agent. In the BookEnds contract we ask that you give us four months from the time you’ve fired us to finish any outstanding projects. In other words, we certainly will not continue submitting, but we would handle deals from outstanding submissions that come in within that four-month time frame. Of course, there are ways to circumvent this, and if you really felt that the relationship had deteriorated so much that you can’t imagine another minute with said agent, you could certainly have a discussion about transferring all of those materials to the new agent.

If you don’t have a contract clause that stipulates how long the agent has to finish up projects after the relationship is dissolved, you could give her a fair amount of time and then ask that all submissions be pulled. I would definitely try to work that out with her once you’ve let her know you’re dissolving the relationship. Not only is it important for peace of mind, but your new agent also needs to know that she’s the only one working for you.

Whether or not a new agent would take on these outstanding projects depends on a variety of things, including the direction you want to take your career, whether or not the new agent feels that outstanding work is your strongest, etc. This would have to be something you’d discuss when offered representation by a new agent.

Parting ways with your agent is a daunting and scary task no matter the circumstances. My best advice is to first have a discussion with your agent about any concerns you have with your relationship. She might not even know that you’re unhappy, let alone why, and a serious and frank discussion may make all the difference. If you’ve had that conversation, or tried with no response, and have come to the decision that you are left with no other choice, then it’s time to make the cut. Remember to keep it professional and everything will go smoothly.

Jessica

I was directed to this recent post on C. S. Harris’s blog, When Bad Things Happen to Good Writers, and asked to comment.

In the story C. S. Harris shared, an author was wooed over to a new publishing house and promised the world—promotion, marketing, and co-op money (money the publisher spends for special placement in bookstores). When push came to shove, however, the publisher did not follow through on its promises and the author did not see the sales she needed to earn out her advance. Needless to say, once the contract was complete the publisher bailed. An author who doesn’t earn out rarely gets a new contract.

The questions I was asked were: If a publisher promises promotion, marketing, and co-op money, why wouldn’t it be written into the contract, and what can an author do to protect herself? Should or could this be something that’s written into the contract, and how often do publishers break such promises?

Let’s start with the obvious. Rarely do such promises get written into the contract. Why? Because the publisher does not want to commit to how they are planning to spend their marketing and promotion budget one, two, or even three years in advance. And from a business perspective this is understandable. What if the market changes? What if the book you sold them is really hot now, but the market drops considerably a year from now? And from an author’s perspective, I’m not sure you would want such a commitment in writing either. What if they only commit to ads and suddenly would consider changing their mind, but don’t have to. They’ve got ads and only ads in writing. Or, what if the publisher has committed heavy promotion to three other authors pubbing at the same time as your book. While your book might now, given new market trends, be the hot new book, they don’t have the money to give you.

I’m not sure exactly how the situation C. S. Harris described played out and what was said. My experience is that publishers rarely “promise” marketing and co-op when they offer. Often what they’ll do is suggest they might go that route, but I always caution my writers that while they are saying these things now, we will have to wait and see and hit them again when we’re getting closer to the pub date. Did the author and agent call to remind the publisher they were promised these things or just assume they would happen? And were promises really made or just suggestions?

I truly doubt the lack of paid co-op and marketing were the sole reason for this author’s failed sales numbers. It’s very likely the books she had out from the other publisher started to fall off. In other words, her numbers slipped well before publisher #2 got to publication and that, probably more than anything, was the reason the promised marketing never happened.

Jessica

Below Evan Schnittman shares his personal opinions on royalties and advances. This isn’t Oxford University Press’s official stance - but represents just one of the many opinions floating around our office on this very tricky subject. We hope that by sharing his views an open dialog can be initiated.

In his blog post Royalties Macmillan CEO Richard Charkin, posits that trade publishers and authors/agents would be well served if the standard for paying authors switched from a percentage of retail price to a percentage of gross earnings. He writes, “How about agreeing new equitable royalty rates based on real money not a notional recommended retail price?

Charkin also points out that, “The percentage is linked to a price which applies in only a minority of cases. It doesn’t apply to all sales overseas; it doesn’t apply to nearly all sales made in supermarkets, Internet bookshops and many bookshop chains.” In other words, paying on the percentage of a price that isn’t applicable to the majority of income isn’t logical or easy – which may lead to wildly confusing royalty statements.

As expected, within hours a series of rebuttals hit the comments field by individuals and groups rejecting Charkin’s notion as folly; stating the view that the retail price is the only thing that is transparent on publishers’ royalty statements, which are notoriously mysterious and murky at best.

While the debate will continue, it misses a far more important problem. (more…)

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Book auctions are the glamorous dream of most authors.

Alvina Ling, editor for Little Brown explains this mysterious process of acquiring a mss through a book auction in one of the clearest explanations I’ve seen

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I received a couple of great questions on my first Contracts 101: Advances post yesterday that I think are worth a follow-up. One reader pointed out that while agents will tell you to get the highest advance you can, publishers will go on and on about how that can be a mistake. Let me clarify that while I think it’s important to negotiate the hell out of an advance, I’m not always in the camp of getting the highest advance of all time. Maybe it’s from my years as an editor, but I think that all too often agents do authors a disservice by selling that big six-figure deal when everyone somehow knew it should have only been a nice mid-five-figure deal.

So let me try to explain a little of what everyone’s thinking is on this . . .

Agents: The reason most agents will shoot the moon on getting you the highest advance possible is twofold. The first is that authors often judge how effective an agent is based on the advance an agent gets for you. In other words, when talking about the amazing things your agent has done for you, what most people focus on is how your agent was able to get you that big advance. Few authors look at the fact that your agent was able to negotiate a better royalty rate or stronger option clause. So in order to get street cred, or build a big reputation, it somehow comes down to advance. A bigger reason, though, is that very, very few books earn much in royalties. So the goal is to make as much as possible up front, therefore guaranteeing you are at least making money on the book.

Publishers: Publishers obviously want to keep the advance as low as possible because they don’t want to pay up front. In other words, you are making your money at the same time the publisher is and it’s not coming out of their pocket.

Basically both camps are trying to eliminate their own risk as much as possible. By getting a bigger advance the agent lessens the risk of making little to no money on a project. By keeping the advance small the publisher lessens the risk of losing any money on the project. Get it?

Authors: The truth is that you want to be somewhere in the middle. Ideally you want an advance that does earn out in the first year, but not necessarily in the first week. You want to make enough to pay for what you’ve already done, but not too much that it takes five years before you actually see your first royalty payments. Because yes, if you make a $10,000 advance, but only earn $6,000 of it out in the first one to two years, it might be difficult for the publisher to really get behind you for another book deal. Why? They’ve already lost money on you and they don’t necessarily want to do it again.

The question was also asked why agents don't focus more on negotiating the royalties rather than the advance. They do, and often they can’t. Most royalties are pretty well set in stone. My first negotiating technique is always to hit the money first, and that means advance, royalty, and the territories I sell (or keep), but few publishers are willing, especially with a new author, to budge even a percentage on those royalties.

For an unpublished author this is essentially a guessing game. No one really has any idea how well the book will or might do. The publisher knows how much they are willing to put into it and can base the advance on that, and the agent hopes that by increasing the publisher’s investment they will be willing to put even more into it. How much negotiation can an agent do at this stage? That really depends. It depends on how many publishers are playing. It depends on the author’s track record, on sales of other similar books, on the author’s platform, and yes, it depends on the publisher’s enthusiasm for the project.

Jessica

As requested, I’m going to start a contract workshop. Now and then I’ll do a post explaining some (probably not all) contract terms that you might want to be aware of. And what they mean. Since this is our first day of class I want to break you in easy and begin with the advance. While most of you should know what an advance is, I’m often surprised by how few know what it really means.

An advance is NOT what you are getting paid for your work. It’s not like working a job and getting paid $100,000 a year. In other words, it’s not at all intended to reflect your “value.” An advance is just that, it’s an advance against future earnings. Think of it this way: if you went to work and your boss knew you were having hard times and offered to give you a $10,000 advance on your salary, he’s not saying you’re worth only $10,000 to him. No, he’s saying that he has faith that you’ll complete the work you need to complete for him, successfully, and he’ll gladly dock your future pay to help you out. That’s an advance.

With most publishers an advance usually reflects your book’s earning potential the first year it’s on sale, less costs to the publisher. What does that mean? Traditionally when publishers run those elusive numbers they try to figure in how many copies a book will sell it’s first year in print, then they try to figure out how much it’s going to cost them to make that book—design the cover, pay for paper, printing, and shipping costs—and then they will figure out how much you might make on the book based on your royalty percentage. And that’s your advance. It’s your share of the book’s profit its first year in print. Of course the publisher (and you) hopes you far exceed that number and that first royalty statement blows the advance out of the water.

Advances are usually paid out in segments. Ideally it’s half the payment on signing of the contract and half the payment upon delivery and acceptance of the manuscript. The key word there is "acceptance." Just because you delivered the book on May 2 doesn’t mean your payment is put through on May 3. No, your payment will be put through when your editor has finally had time to read the book, write a revision letter, received your revisions and approved your revisions (in other words, found time to read your book again). Sometimes (ideally) you can get a time frame written in on when acceptance needs to happen by. Oftentimes, you cannot.

Nowadays, though, the ideal is changing. It seems that more and more publishers are dividing payments into thirds, or more. Partial payment on signing, partial on delivery and acceptance, sometimes partial on the delivery and acceptance of proposals for any other books, and the dreaded partial payment upon publication. I hate that. Authors hate it. Agents hate it and publishers love it. It’s becoming standard now at most houses, so complain all you want, you’re not getting out of it, no matter how small your advance is.

My advice on how to handle a really small advance? Negotiate the hell out of it. And if that doesn’t work, prove them wrong. Sell so many copies of that first book that they will have to pay you a ton on the next.

Jessica

Every once in a while it happens. Actually, it happens a lot. A publisher gets in touch with you directly, either through contests, conference pitch appointments, or work you’ve written in a literary journal, and asks to see your work. Of course you submit it, why wouldn’t you? Why would you possibly turn down a request from a publisher to submit your work? So you happily go about your business, writing, editing, and submitting to agents, when bam! that editor calls and offers to buy your book. She likes it! She wants to publish it, and what the heck are you going to do now?!

Well, that’s entirely up to you of course. My suggestion is that if you want an agent to help negotiate your contract and guide your career, you should get one immediately. Don’t accept any offer. Don’t even say okay. Thank the editor (profusely is okay) and let her know that you are going to find an agent to work with, but will be in touch shortly. Then get out that list of dream agents and start emailing immediately.

Calling is okay too, but I think that sometimes emailing is better (and I have no idea why). Either way, get in touch. Give the agent your name, the title of your book, let her know if she has it already and when you sent it. Let her know which house and which editor made the offer and tell her you need to know within two days' time. A really interested agent shouldn’t need any longer than that. And of course let her know all the ways in which she can reach you.

And when the calls start coming in you can start evaluating who would be the best agent for you. Refer to my previous post on what Questions to Ask for more information.

I’ve actually been in this situation a great number of times. A few authors I now call clients, and a few I just didn’t feel that I loved their work enough to take them on, so I wished them well and hope they signed with someone they adore.

Since I don’t remember things that happened yesterday, let alone months ago, I’ll let others comment on how they handled this very situation when it happened to them.

Jessica

Let's say a new author signs a two or three book deal. Are books two and three for the exact same terms (advance, print run, percentages, etc.) or is everything renegotiated upon acceptance of the second MS.

I would like to think if the first novel sold well that at the very least there would be a larger print run for the second. Or maybe even a tiny bit of the elusive marketing dollar would go to promote book two or three.

What a great question! It’s been a while since I’ve gotten something that I was really excited to answer.

The answer . . . they are on the same terms. For the most part a multi-book contract will be three books (or two or six or whatever) on one contract. Which means that they usually have the same royalties, the same subsidiary rights, the same everything. The only thing that frequently differs in this case is the advances. Oftentimes you’ll see an advance escalation—Book #1 might be for $5,000; Book #2 for $7,500; and Book #3 for $10,000, for example.

Print runs are not a contractual issue. Sometimes an agent will negotiate bonus money based on a print run, but at this stage of the game (sometimes one, two, or even three years before a book is published) a print run and marketing dollars can’t be determined. And yes, absolutely, if the first book sells well then you will get a larger print run for the second book. Conversely, if the first book doesn’t sell well at all you will likely see a smaller print run for books two and three. Print runs and marketing dollars are based on a book’s sales performance and (with a first book) estimates of its sales performance. The final decision on print runs is usually made by the booksellers. If they don’t order the books it’s unlikely your publisher is going to have them printed.

So what are the pros and cons of a multi-book deal?

Pros

You get a little more cash up front (you’ll have a higher payment when you sign the contract) and you’re guaranteed that more than one book will be published.

Cons

If your first book does phenomenally well you’ve likely been underpaid. Granted, you’ll still get the money owed to you in royalties, but you might regret needing to wait for the money to come through.

When a multi-book deal is offered I often discuss these pros and cons with my clients. If we were hoping for more money, for example, we might want to accept a contract with fewer books. If, however, the author likes the security net of knowing exactly what her schedule is for the next one to two years, then I say go for the multi-book contract. Remember, in the end you will get the money you’re owed in royalties. If they underpaid you, you’ll just have more to negotiate the next time around.

I hope that answers your great question.

Jessica

I’ve been asked a lot in the past few weeks to discuss various contract issues. Most notably about Simon & Schuster and Triskelion’s recent bankruptcy. The reason I didn’t get on board with the Simon & Schuster discussion was that I felt everyone else was handling it very well. I know Kristin Nelson did a post on the subject as did every news source and most other blogs. However, you asked and you shall receive...

Simon & Schuster
For those of you who have been vacationing in a cave since mid-May here’s the scoop: Simon & Schuster changed their standard contract language to hold perpetual rights to any book contracted. In other words, they would consider a book in print, under exclusive contract with S&S, as long as it’s available in any form, including erights sold only through S&S, whether or not even one copy had sold. Needless to say, authors, agents, and all their perspective organizations were up in arms. I think the real damning thing for S&S was that they claimed this clause was non-negotiable.

The question I’ve been getting a lot lately is whether or not other houses will follow. Well, to some extent houses have been trying this for years. The truth is that when a house buys you they want to hold on to your rights as long as possible. You never know when you’ll become the next Stephen King, and having that backlist can really pay off. It’s up to the agent to negotiate a minimum at which a book is considered in print (either number of copies or amount made within a certain time period).

I’m not going to get into the details of the back-and-forth between S&S and the Authors Guild. The truth is that S&S now agrees to negotiate this point and other publishers will as well. This is a business and in any business each company (whether the Publisher or Author) wants to get the most possible. It’s in your best interest to own everything for as long as necessary. The same goes for the publisher. That’s why it’s our job to negotiate tirelessly to make sure the contract is as fair as possible (and as beneficial to the author). Clauses will always be added and changed to cause an uproar, but thanks to organizations like the Authors Guild and AAR, as well as individual agents and authors, we can always and will always fight back.

Triskelion
Most authors in the romance world know by now that Triskelion publishing announced that it is closing its doors and filing for bankruptcy on July 2. Triskelion was a small press focusing primarily in the romance and women’s fiction market. Obviously this is a mess. A number of authors are caught in the middle, wondering if their rights are reverted to them or if they are stuck in legal limbo.

DearAuthor.com has a great discussion on the issue, but of course I wanted to add my two cents. Keep in mind that I’m not a lawyer, and since each case is different I’m not going to get caught up in a legal discussion of what could, should, or might happen. What I am going to say, quite frankly, is that I would advise most of you to look forward. In all likelihood Triskelion’s creditors are not going to want to spend the time or money to try to republish books or find a publisher for those not yet published. After all, if Triskelion couldn’t make the money off them, why would someone else, and this is a really hard business to make money in (something for all of you thinking of starting a publisher to consider), so wouldn’t it just benefit them to count their losses and walk away? I would think so, but I’m not in their boardrooms.

There is a lot of information out on how to handle this or where to get advice. I believe RWA is actually offering free advice on what authors can do. In the meantime, though, I would consider your Triskelion book, for now anyway, a book that’s tucked away under your bed and work diligently to make your next book even bigger, better, and stronger. It’s frustrating to know that a book you wrote might be stuck in nowhere land for a while, but it’s not going to do you any good to obsess over it. I am sorry for everyone who has to deal with this. It’s never good when things start to spin out of your control.

If you have any specific questions about this, please comment and ask. I’ll check in and try to answer them as best I can.

Jessica

If you've ever done any sort of agent research at all you should know to be aware of the scam agent—those “agents” who prey on unsuspecting authors for money only. People in the publishing business preach constantly about scam agents. You can read in-depth on how to avoid them on Preditors & Editors, the amazing Writer Beware blog, and of course the esteemed Miss Snark. What I don’t think we talk enough about, though, are bad agents. Not the “agents” who are looking to scam you out of your money, but the agents who are just incompetent. While one will take your money and make you feel the fool, the other has the ability to cause some short-term damage to your career. While the damage is rarely irreparable, it is harmful nonetheless.

An incompetent agent is much more difficult to spot than a scam agent because she usually follows the rules. In other words, it’s unlikely she asks for reading fees, or “suggests” you hire outside editors. No, Bad Agent often has the best of intentions. She really does want to sell your book, she just doesn’t know how. She doesn’t have the contacts, the knowledge, or the publishing experience to truly be what an agent should be for you. If she does sell your book it’s probably a fluke and unlikely that her contract negotiation skills are really going to benefit you in the way an agent should. In many instances the author could have done just as well negotiating the contract as Bad Agent. Bad Agent also fails to realize that her job doesn’t end there. In fact, there’s a lot more she needs to do than just sell a book. Bad Agent doesn’t have a clue when it comes to marketing, market advice, or strategy, and rarely can she advise you on where you should go from here.

And what harm can Bad Agent do? Well, like I said, it’s not necessarily irreparable, but it can be endlessly frustrating. Since Bad Agent doesn’t have contacts within the industry she doesn’t know where to even submit your book. In fact, in all likelihood she doesn’t know much more than you. What she does know is what you already know—what editors are buying according to their listings on Publishers Marketplace. While that's a good start to making new contacts (and editors contact me through my posts all the time), it can't be your Rolodex. Contacts are those people who call you back and read work quickly simply because they know your letterhead. Any agent who tells you that Publishers Marketplace is the key to her selling strategy is not the agent for you. No good agent is going to start her submission process by posting your listing on the Publishers Marketplace Rights Board. She doesn't have to. She knows that she'll be more successful sending your work to her contacts. Bad Agent doesn't have contacts, and that's evident by the fact that her submission process means first posting your book on the rights board. She doesn't know how else to do it.

If Bad Agent does sell your book, it’s probably a fluke, and since it’s a fluke, it’s unlikely she has any knowledge of contracts. Any agent should know how to successfully negotiate the obvious things, like your advance and royalties, but Bad Agent thinks it stops there. She doesn’t have the proper understanding of things like option clauses, warranties, or subsidiary rights. She doesn’t think she really has to. While none of this will kill a career, a badly negotiated contract can certainly slow things down considerably. Bad Agent’s strategy is probably to negotiate the advance and maybe royalties, talk about the option clause, and add her agency clause. That’s it. In fact, in most cases Bad Agent’s “boilerplate” looks very similar to the publisher’s.

Publishing experience would probably have helped Bad Agent. If she had worked for a larger agency or a publishing house she would know who to call and how to negotiate a contract. More important, though, she would understand this very bizarre business. Do not be tricked into believing that because Bad Agent took a publishing course she knows the ins and outs of the industry. While publishing courses can be helpful, they do not teach the things an agent should know. (I’ve never taken a publishing course, so maybe someone can chime in to talk about what they do offer. I do know from talking to others that the biggest benefit was getting a job.)

So how do you avoid Bad Agent? How do you know, when there aren’t distinct warning signs like there are with scam agents? By carefully checking out every agent you query.

The biggest warning sign is that no one knows who Bad Agent is. When asking your writing groups (RWA, MWA, SFWA, etc.) about Bad Agent, you’ll get nothing but silence. Bad Agent doesn’t have a reputation, good, bad, or otherwise, because no one knows who she is.

References for Bad Agent will also be nonexistent. While no agent will give you contact information or a list of references, with a good agent you should be able to find a reference easily. A quick Internet search or a review of an agent’s Web site usually gives up client names. Once you find that, it’s not difficult to find an author Web site and contact information. Clients of good agents will happily give references. Clients of Bad Agent will be very, very difficult to find. If you do find clients of Bad Agent, pay attention to what she’s sold. Bad Agent will often claim client sales that were previously sold through another agent. Make sure that you ask references not only if Bad Agent sold the books for them, but if they were happy with the contract.

Bad Agent also won’t be able to tick off the publishers or agents she’s worked with, because they don’t exist. In fact, she’s likely to tell you more about her previous career as a marketer or car salesman.

Most important, though, with Bad Agent you’ll get Bad Vibe. It won’t feel right and yet you’ll do it anyway.

The worst part about Bad Agent is that by the time you realize you have one, you’ve probably already signed with her. My advice? Get out while you can. You know who she is and it’s important to remember that no agent truly is better than Bad Agent. The minute you know you have Bad Agent, there should be no looking back. Chalk it up as experience and move on.

—Jessica

This was sent to members of the Author's Guild his afternoon. As you can see, The AG still objects to the new S&S rights reversion clause.

UPDATE ON SIMON AND SCHUSTER

Simon & Schuster is irked that we went public with our information about their unannounced new contract language. They’ve sent a release (you can read it below) accusing us of “perpetrat[ing] serious misinformation.”

That's a heavy charge, so we went back and double-checked. We stand by every word of our statement.

Simon & Schuster’s release pretends that the argument concerns “print on demand.” That isn’t the issue. We like print on demand: we encourage publishers to sell books in every permissible way. You wouldn’t know it from reading its release, but Simon & Schuster already has the rights – as they have for years in their standard contract – to take advantage of print on demand and e-book technologies.

The issue is what happens when a book goes out of print, when the publisher is no longer selling it in meaningful numbers. Traditionally, rights then revert at the request of the author, who often is able to give the book a new life elsewhere. Simon & Schuster is trying to change the rules of the industry so that they never have to admit that a book is out of print.

We meant what we said in our press release and our alert to members:

1. Simon & Schuster’s new contract would indeed allow it to retain exclusive rights to a book even if it were no longer in print. Simon & Schuster’s contract says, “The Work shall not be deemed out of print as long as it is available in any U.S. trade edition, including electronic editions.” Having a book available for sale in some database – without the obligation to sell a single copy – is not keeping a book “in print” as common sense and the industry have defined that term.

2. Simon & Schuster would, under its new contract, be empowered to exclusively control your rights even if your books aren't available for sale through traditional bookstores. E-book availability (read any good e-books lately?) would be enough to fulfill Simon & Schuster’s contractual commitments under its interpretation of “in print.” Roy Blount is plainly right, this contract would allow Simon & Schuster to squirrel away rights.

3. Simon & Schuster’s press release avowals about its promotional efforts as it pursues “incremental income” for backlist titles are not legally binding. Simon & Schuster goes on at some length about efforts to market backlist titles including “regularly review[ing] inventory opportunities with all our accounts” and engaging in the “distribution of online assets (cover, bios, synopses, chapters) and data feeds about basic information” on backlist titles to retailers. Whatever the merit of these efforts, Simon & Schuster carefully avoids committing to them on behalf of authors with books relegated to the backlist.

4. Simon & Schuster’s efforts to alter the true core deal of a trade book contract – that a publisher controls the right to sell an author’s book only so long as the publisher effectively exploits that right – demanded exposure. Agents reported to us that Simon & Schuster had slipped the change into its contracts without alerting agents to the alteration, which was quite subtle and easily missed. Agents also reported that when they discovered the change and questioned the publisher about it, Simon & Schuster played hardball, saying the clause was non-negotiable and wouldn’t be discussed. In its release, Simon & Schuster seems miffed that we didn’t discuss their new contractual language with them before exposing it to sunlight. Engaging in discussions with a conglomerate playing hardball while authors may have been unwittingly signing rights away would, in our view, have been irresponsible.

We welcome and will take Simon & Schuster up on its offer to discuss this matter. We hope to report soon that it has rejoined the ranks of publishers who behave as responsible stewards of their authors’ copyrights.

In the meantime, if you have an offer from Simon & Schuster, remember that the publisher has now said it will negotiate this clause on a book-by-book basis. If you’re fortunate, Simon & Schuster will offer you a reasonable out-of-print clause. (Feel free to discuss this with us or talk to your agent about the adequacy of the clause.) If not, it’s in your interest to explore your options – other publishers have reaffirmed that they’re not following Simon & Schuster’s example. If you have a manuscript that may be auctioned, it’s in your strong interest to ask your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.

Here’s Simon & Schuster’s release in its entirety, which we forward to you at the publisher’s request.

Feel free to forward and post this alert. The Authors Guild (www.authorsguild.org) is the oldest and largest organization of published book authors in the U.S.

TO OUR COLLEAGUES IN THE AUTHOR AND AGENT COMMUNITY

The Authors Guild has recently perpetrated serious misinformation regarding Simon & Schuster, our author contracts and our commitment to making our authors’ books available for sale. Unfortunately, these distortions were released by the Authors Guild without their having undertaken any effort to have a dialogue with Simon & Schuster on this topic.

In recent years, Simon & Schuster has accepted, at the request of some agencies, contract language that specifies a minimum level of activity for print on demand titles. Our experience with the current high quality and accessibility of print on demand titles indicates to us that such minimums are no longer necessary. Our position on reversions for active titles remains unchanged. As always, we are willing to have an open and forthright dialogue on this or any other topic.

When considering this issue, we ask you to please keep in mind these important points:

• Through print on demand technology, publishers now have the ability, for the first time in history, to actually fulfill the promise which is at the core of their contracts with authors – to keep the author’s book available for sale over the term of the license.

• We view this progress as a great opportunity to maximize the sales potential for slow moving titles, and some of the best news for authors and publishers in a long time. The potential benefit for all concerned in incremental income for the publishing partnership far outweighs any imaginary negatives purported by the Authors Guild.

• We and others are investing heavily in digitization so that authors and publishers can reap the maximum benefit of publication over the long term. New technologies including print on demand will extend the life of a book far beyond what has been possible in the past.

• Contrary to the Authors Guild assertion, using technologies like print on demand is not about “squirreling away” rights, nor does it mean that “no copies are available to be ordered by traditional bookstores.” Print on demand is simply a means of manufacturing a book, making it widely available to retailers and consumers.

• Publishers must and will continue to invest in sales and marketing organizations that work on behalf of its books regardless of how they are manufactured. Among the activities that publishers regularly undertake for backlist titles:


-- Keeping them available for sale everywhere books are sold, through brick and mortar and online stores.

-- Our Sales team regularly reviews inventory opportunities with all our accounts.

-- Distribution of online assets (covers, bios, synopses, chapters) and data feeds about basic information to both online and traditional retailers.

-- Books are cataloged and regularly featured and solicited in category promotions.

-- Re-promotion of books to tie in with seasonal and current events.

-- Re-promotion of an author’s backlist titles together with new frontlist releases.

• Print on demand, digital archives, and virtual warehouses support greater flexibility and effectiveness in making books available. Simon & Schuster has already had instances where a high level of sales activity of print on demand titles has led us to go back to press for larger quantities.

Most importantly, we hope you know that we view authors and agents as our partners in the publishing process. We have always been open to discussion and negotiated in good faith at every point in the life of a book.

Please feel free to contact us if you have any questions.

May 21, 2007

This is the update that the Author's Guild sent out about the Simon & Schuster proposed contract regarding the reversion clause.

A quick update on Simon & Schuster's rights grab: S&S has fallen back some, now saying they'll negotiate regarding the reversion of rights clause "on a book-by-book basis." They also accuse us of an "overreaction." Their official statement follows.

Agents are angered by Simon & Schuster's gambit, according to this piece in Publishers Weekly.

Here are links to other stories that have run:

1. AP (via Herald Tribune)
2. New York Times
3. Publishers Weekly
(the other PW story on S&S)

We'll keep you posted on further developments. Have a good weekend.

Feel free to forward and post this message in its entirety. The Authors Guild (www.authorsguild.org) is the nation’s oldest and largest organization of published book authors.



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Simon & Schuster's official reaction, from Adam Rothberg, VP for Corporate Communications:

We are surprised at the overreaction of the Authors Guild to Simon & Schuster’s contract. We believe that our contract appropriately addresses the improved technology, increased availability, and higher quality of print on demand books, and reflects the fact that print on demand titles may now be readily purchased by consumers at both online and brick and mortar stores. We are embracing print on demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term it that will be a benefit for all concerned. We would also like the author and agent community to know that, when necessary, we have always had good faith negotiations on the subject of reversions, and will continue to on a book-by-book basis.
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I was working under a deadline yesterday and missed posting my tip. Here goes. And it's a doozy.

Tip of the Week: If you're going to talk badly about someone behind their back, you'd better make sure they aren't a member of the list you are posting on.

I love when my tips are relevant in all sorts of facets of life. Flaming people online (posting hateful things) isn't anything new, but when you do it about people in your professional life you're just asking for trouble.

Here's the situation. An author with a story accepted in an upcoming anthology showed some concerns over a portion of his/her contract, specifically the handling of subrights. Author asked if his/her attorney could call Boss to discuss the contract. Boss said yes and waited for the call. Since the attorney was apparently out of town, Boss figured it would be a few days before this issue arose again. She was wrong. Author had taken the liberty on a writing group board of posting part of the contract with various negative comments and then solicited opinions of the (I think it was 2 sentences) quoted out of context. Now, I dare anyone to take any two sentences in any legal document and have them still sound flattering. I tried this with a CBAY contract. It couldn't be done. Even simple sentences like "The work shall be tentatively titled _____" sounds awful when put in legalese. Needless to say, the excerpt elicited negative comments some of which called into question the publisher's integrity.

Boss, who is a member of this list, got to read every single one of these posts. She got to see exactly what Author thought, in a way I'm sure Author never intended boss to know. Boss also got to see a very interesting side of Author. So did I.

There are so many problems with what Author did. He/She

1. Posted parts of a confidential contract in a public forum. Never publish part of your contract online.
2. Acted unprofessional. Having your lawyer talk to the publisher's representative is professional. Venting you spleen to close friends is professional. Venting your spleen to relative strangers in a public forum is not.
3. Acted prematurely. The contract was still up for negotiation. Boss had already offered to make some concessions. However, posting that kind of thing during the negotiation phase will only sour the whole process.
4. Was just plain stupid. I mean, really. Not even bothering to check the public member list to see who's going to be getting this? Even if Boss hadn't been a member, I could have been, or any of our staff, or any of our authors. How exactly did Author think this was going to be kept a secret?