The Authors Guild on the Option Clause

Excellent statement from The Author’s Guild analyzing the odious “option clause” in the book contract. Most book contracts are “asymmetrical” in favor of the publisher. I.e. an agreement whereby the publisher gets the right to exploit the work of the author for the term of the copyright, life plus 70 years. In exchange they give the author a very small advance (usually)  against rather small royalties. One of the most asymmetrical conditions is the option clause, which requires the author to submit the next book exclusively to the contracted publisher for a given period of time, but doesn’t require any additional responsibility on the publisher to accept it. Sometimes a very limited option clause is ok. But there are some truly horrible ones out there.  Here is the complete text.

A few authors are lucky enough to sign multi-book deals worth six or seven figures. But many more writers, without really thinking about it, tie themselves to unprofitable multi-book deals in the form of one-sided options or “next book” clauses—and they do it for free.

Option clauses in publishing agreements vary, but generally they give the publisher first dibs on the author’s next book. Some options are relatively benign, granting the publisher rights of first look or first negotiation (i.e., the right to see the next book first and negotiate for a limited period of time after reviewing it). Others are never fair, in our view, such as clauses that grant the publisher a right of last refusal (i.e., even if the publisher turns it down at first, it can come back and match any other publisher’s offer) or the ability to wait until after the first book is published, or the second book completed, to make up its mind. Clauses that do so unfairly impede an author’s ability to write and publish.

We get that publishers want their investments in authors to pay off. When a book does well, it may be a credit to the publisher’s marketing efforts, as well as the author’s. In cases where the publisher actively builds the author’s brand, it may be fair to give it the right to further recoup its investment on the next book. But the terms have to reasonable. We have seen too many option clauses that overreach, binding the hands of an unwitting author for longer than she can afford when it comes time to sell the next book.

Option clauses can wreak havoc on authors’ careers. First, and most obviously, they prevent an author from selling her book on the open market and getting the best deal possible. In cases where the first book sold particularly well, unless and until the publisher passes on the next book, an option certainly precludes an auction from developing. And what if the publisher failed to market the first book effectively, or the author was dissatisfied with the edit? The author is left without recourse.

An option can also hold up the author’s ability to get a new advance—a necessity for full-time authors. Particularly egregious clauses require the author to submit a completed manuscript (as opposed to a proposal) of the next book for the publisher’s consideration. To make things worse, they give the publisher way too long to decide whether to publish the manuscript. The author is not permitted to submit a proposal to other publishers until after delivering an entire new book to the original publisher, which is given ample time to review it and, of course, to reject it. This means that the author is writing the entire book without an advance—defeating the very purpose of an advance, which is to provide an author with money to write the book in the first place.

Even worse are options that give the publisher the right to the author’s next book-length work “on the same terms” as the first. That is, if the publisher elects to exercise the option, the author must sign a contract with the publisher with the same provisions and payment structure as the current contract. This completely eliminates the author’s right to negotiate before the next book’s subject matter, length, and market potential are known. No writer should ever agree to such terms.

For absolute intolerability, option clauses including “last refusal” rights take the cake. These, as discussed above, actually allow a publisher to match a second publisher’s offer, even if the publisher who holds the option declines the author’s work initially. We don’t think a publisher should receive even one bite of this apple. But several? That’s crazy. Once a publisher passes on a book, no author should be obligated to disclose any offers received from others to the original publisher.

One Authors Guild member whose option required submission of an entire manuscript spent ten years without any financial compensation while working on a research-intensive non-fiction manuscript (an early advance for the “next book” is almost never part of the deal). His contract prohibited him from approaching any other publisher until the entire manuscript was done—a decade later. It’s preposterous to ask authors to bear that kind of risk.

Fiction writers aren’t immune. A few years ago, a major publisher used a next-book option (together with a non-compete clause, like the ones we’ve called out here) as an excuse to pull the plug on a novel already scheduled for publication. With her agent’s knowledge and blessing, the author decided to self-publish a previously-written but unpublished short story collection in order to make ends meet before the next installment of the advance for the novel was due. When her publisher—which had already rejected the story collection—found out, the author received a termination letter demanding immediate repayment of the advance, claiming that “by ignoring these essential terms of the Agreement and not informing your editor of your intentions, you have not only breached the Agreement, but also demonstrated your unwillingness to work in good faith with us toward the successful publication of the Work.” The novel clearly didn’t compete with the self-published short story e-book. And earlier, when the author presented the publisher with an outline for her next novel, the publisher had insisted on waiting until after the current novel’s release to see how it was received and whether it was worth picking up the next one.

Or consider the romance novelist who took a break from fiction to write a non-fiction book. Her non-fiction contract required her to submit her next book—a romance novel—to that same publisher, despite the fact that the non-fiction publisher had absolutely no experience with romance novels. The upshot was that the author was required to delay submission of the novel to publishers who would actually know how to handle it.

Fair “next book” clauses do exist and may be appropriate where the publisher invests in marketing, but they must be strictly limited. The clause should grant only a right to negotiate with the author for a next book of similar subject matter for a limited period of time. If the author and publisher can’t reach an agreement in that time frame, it is crucial that the author be free to quickly seek another publisher. Additionally, a fair option agreement generally will:

• require that the publisher base its decision on a proposal or sample chapters of the next book (not on a completed manuscript);
• require the publisher to make a decision within a certain number of days (e.g., 30) of receiving the author’s proposal or sample chapter(s);
• allow the author to go elsewhere if no agreement is made within a limited number of days (e.g., 15) of the publisher’s offer;
• allow the author to submit a proposal or sample from the next book for the publisher’s review when it is ready (the author should never be forced to wait until some period after publication of the first book, which may be way too far out for an author living on book writing alone); and
• provide for new terms to be negotiated for the next book (the second deal should never be based on the terms in the contract for the first book).

If the publisher wants an option in any other circumstances, the publisher should pay an upfront option fee for it. We recognize this is not an industry practice—not yet, at any rate. But it should become one. A publisher should never have the right to prevent or delay an author from selling her next book unless it pays an additional amount to hold up that work for some period of time, as a film studio would when buying film option rights on a book.

Bottom line: option clauses are almost always in the sole interest of the publisher and not the author. In some cases, the option clause can hold the author’s writing career hostage to the publisher’s schedule for years. This amounts to an unacceptable restriction on an author’s freedom to write. If an author is agreeable to providing the publisher an option, it should be subject to the limits described above.

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The Authors Guild on E-book Royalties

On June 17, we posted a statement by The Authors Guild about their new Fair Contract Initiative, in which they would be clarifying the issues in the typical book contract that are unfair to authors. Today The Authors Guild issued  their first analysis having to do with e-book royalties, which are substantially lower than the royalties on hardbacks, even though the costs of production and distribution of e-books is substantially lower. It’s worth reading. Here is the text in its entirety.

We announced our Fair Contract Initiative earlier this summer. Now our first detailed analysis tackles today’s inadequate e-book royalties. At the heart of our concern with the unfair industry-standard e-book royalty rate is its failure to treat authors as full partners in the publishing enterprise. This will be a resounding theme in our initiative; it’s what’s wrong with many of the one-sided “standard” clauses we’ll be examining in future installments.

Traditionally, the author-publisher partnership was an equal one. Authors earned around 50% of their books’ profits. That equal split is reflected in the traditional hardcover royalty of 15% of list (cover price, that is, not the much lower wholesale price), and in the 50-50 split of publishers’ earnings from selling paperback, book club, or reprint rights. Authors generally received an even larger share than the publisher for non-print rights (such as stage and screen rights) and foreign rights.

But today’s standard contracts give authors just 25% of the publisher’s “net receipts” (more or less what the publisher collects from a book sale) for e-book royalties. That doesn’t look like a partnership to us.

We maintain that a 50-50 split in e-book profits is fair because the traditional author-publisher relationship is essentially a joint venture. The author writes the book, and by any fair measure the author’s efforts represent most of the labor invested and most of the resulting value. The publisher, like a venture capitalist, invests in the author’s work by paying an advance so the author can make ends meet while the book gets finished. Generally, the publisher also provides editing, marketing, packaging, and distribution services. In return for fronting the financial risk and providing these services, the publisher gets to share in the book’s profits. Not a bad deal. This worked well enough throughout much of the twentieth century: publishers prospered and authors had a decent shot at earning a living.

How the e-book rate evolved

From the mid-1990s, when e-book provisions regularly began appearing in contracts, until around 2004, e-royalties varied wildly. Many of the e-rates at major publishing houses were shockingly low—less than 10% of net receipts—and some were at 50%. Some standard contracts left them open to negotiation. As the years passed, and especially between 2000 and 2004, many publishers paid authors 50% of their net receipts from e-book sales, in keeping with the idea that authors and publishers were equal partners in the book business.

In 2004, we saw a hint of things to come. Random House, which had previously paid 50% of its revenues for e-book sales, anticipated the coming boom in e-book sales and cut its e-rates significantly. Other publishers followed, and gradually e-royalties began to coalesce around 25%. By 2010 it was clear that publishers had successfully tipped the scales on the longstanding partnership between author and publisher to achieve a 75-25 balance in their favor.
   

The lowball e-royalty was inequitable, but initially it didn’t have much effect on authors’ bottom lines. As late as 2009, e-books accounted for a paltry 3–5% of book sales. Authors and agents ought to have pushed back, but with e-book sales so low it didn’t make much sense to risk the chance of any individual book deal falling apart over e-royalties. We called the 25% rate a “low-water mark.” We said, “Once the digital market gets large enough, authors with strong sales records won’t put up with this: they’ll go where they’ll once again be paid as full partners in the exploitation of their creative work.”

E-books now represent 25–30% of all adult trade book sales, but for the vast majority of authors the rate remains unchanged. If anything, publishers have dug in their heels. Why? There’s a contractual roadblock, for one: major book publishers have agreed to include “most favored nation” clauses in thousands of existing contracts. These clauses require automatic adjustment or renegotiation of e-book royalties if the publisher changes its standard royalty rate, giving publishers a strong incentive to maintain the status quo. And the increasing consolidation of the book industry has drastically reduced competition among publishers, allowing them more than ever to hand authors “take it or leave it” deals in the expectation that the author won’t find a better offer.

The elephant in the room

And then there’s the elephant in the room: Amazon, which has used its e-book dominance to demand steep discounts from publishers and drive down the price of frontlist e-books, even selling them at a loss. As a result, there’s simply not as much e-book revenue to split as there was in 2011when we reported on the e-book royalty math. At that time, publishers made a killing on frontlist e-book sales as compared to frontlist hardcover sales—at the author’s expense—because, as compared to today, the price of e-books was relatively high.

When we analyzed e-royalties for three books in the 2011 post, “E-Book Royalty Math: The House Always Wins,” we found that every time an e-book was sold in place of a hardcover, the author’s take decreased substantially, while the publisher’s take increased.

Since 2011, we have found that publishers’ e-gains have diminished. But the author’s share has fallen even farther. Amazon has squeezed the publishers, to be sure. The publishers have helped recoup their losses by passing them on to their authors.

These were our calculations for several books in 2011. The trend was obvious. Compared with hardcovers, each e-book sold brought big gains to the publisher and sizable losses to the author when the author’s royalties are compared to the publisher’s gross profit (income per copy minus expenses per copy), calculated using industry-standard contract terms:

Author’s Royalty vs. Publisher’s Profit, 2011

The Help, by Kathryn Stockett

Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book.

Author’s E-Loss = -39%

Publisher’s Margin: $4.75 hardcover; $6.32 e-book.

Publisher’s E-Gain = +33%

Hell’s Corner, by David Baldacci

Author’s Standard Royalty: $4.20 hardcover; $2.63 e-book.

Author’s E-Loss = -37%

Publisher’s Margin: $5.80 hardcover; $7.37 e-book.

Publisher’s E-Gain = +27%

Unbroken, by Laura Hillenbrand

Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book.

Author’s E-Loss = -17%

Publisher’s Margin: $5.45 hardcover; $9.62 e-book.

Publisher’s E-Gain = +77%

What’s happening now? We ran the numbers again using the following recent bestsellers. Because of lower e-book prices, the publishers don’t do as well as they used to, though they still come out ahead when consumers choose e-books over hardcovers. But authors fare worse than ever:

Author’s Royalty vs. Publisher’s Profit, 2015

All the Light We Cannot See, by Anthony Doer

Author’s Standard Royalty: $4.04 hardcover; $2.09 e-book.

Author’s E-Loss= -48%

Publisher’s Margin: $5.44 hardcover; $5.80 e-book.

Publisher’s E-Gain: +7%

Being Mortal, by Atul Gawande

Author’s Standard Royalty: $3.90 hardcover; $1.92 e-book.

Author’s E-Loss= -51%

Publisher’s Margin: $5.10 hardcover; $5.27 e-book.

Publisher’s E-Gain: +3.5%

A Spool of Blue Thread, by Anne Tyler

Author’s Standard Royalty: $3.89; $1.92 e-book.

Author’s E-Loss: -51%

Publisher’s Margin: $5.09 hardcover; $5.27 e-book.

Publisher’s E-Gain: +3.5%[1]

Exceptions to the rule

It’s time for a change. If the publishers won’t correct this imbalance on their own, it will take a critical mass of authors and agents willing to fight for a fair 50% e-book royalty. We hope that established authors and, particularly, bestselling authors will start to push back and stand up to publishers on the royalty rate—on behalf of all authors, as well as themselves.

There have been cracks in some publishers’ façades. Some bestselling authors have managed to obtain a 50% e-book split, though they’re asked to sign non-disclosure agreements to keep these terms secret. We’ve also heard of authors with strong sales histories negotiating 50-50 royalty splits in exchange for foregoing an advance or getting a lower advance; or where the 50% rate kicks in only after a certain threshold level of sales. For instance, a major romance publishing house has offered 50% royalties, but only after the first 10,000 electronic copies—a high bar to clear in the current digital climate. But overall, publishers’ apparent inflexibility on their standard e-book royalty demonstrates their unwillingness to change it.

We know and respect the fact that publishers—especially in this era of media consolidation—need to meet their bottom lines. But if professional authors are going to continue to produce the sort of work publishing houses are willing to stake their reputations on, those authors need a fair share of the profits from their art and labor. In a time when electronic books provide an increasing share of revenues at significantly lower production and distribution costs, publishers’ e-book royalty practices need to change.

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[1] In calculating these numbers and percentages for hardcover editions, we made the following assumptions: (1) the publisher sells at an average 50% discount to the wholesaler or retailer, (2) the royalty rate is 15% of list price (as it is for most hardcover books, after 10,000 units are sold), (3) the average marginal cost to manufacture the book and get it to the store is $3, and (4) the return rate is 25% (a handy number—if one of four books produced is returned, then the $3 marginal cost of producing the book is spread over three other books, giving us a return cost of $1 per book). We also rounded up retail list price a few pennies to give us easy figures to work with.

Likewise, in calculating these numbers and percentages for the 2015 set of e-books, we are assuming that under the agency model—which is reportedly the new standard in the Big Five’s agreements with Amazon—the online bookseller pays 70% of the retail list price of the e-book to the publisher. The bookseller, acting as the publisher’s agent, sells the e-book at the price established by the publisher. The unit costs to the publisher are simply the author’s royalty and the encryption and transmission fees, for which we deduct a generous 50 cents per unit.   

 

The Author’s Guild on the Book Contract

Most of us who have ever negotiated a book contract will tell you that these agreements are unfair to authors. Contracts are classic asymmetrical agreements whereby the publisher gets the rights to exploit your writing in all possible manner and in all possible venues for the term of the copyright (life plus 70 years). They have the right to keep you from publishing any other book that they deem will compete against the contracted work. They will attempt to restrain you from showing your next work to another publisher until they have had an exclusive opportunity to look at it and make an offer. They will claim the right to reject the book for any reason and require you to return the advance paid. In exchange, they will give you a teeny bit of money. No wonder authors are claiming that they are better off self publishing.

To combat this, The Authors Guild, my favorite author organization, has developed a new program to shine a light on the unfair elements of the book contract. Today they published an outline of the Fair Contract Initiative and describe the areas that they will be analyzing going forward. It’s worth a read.

***

“On May 28 we announced the Authors Guild Fair Contract Initiative. Its goal is to shine a bright light on the one-sided contract terms that publishers typically offer authors and to spur publishers to offer more equitable deals. This is not an abstract issue: today’s contracts directly affect authors’ livelihoods and ability to control their works. As standard terms have become less favorable to authors in recent years, their ability to make a living has become more precarious.

Authors are among our more vulnerable classes of workers. Book authors receive no benefits, no retirement income or pension, and there are no unions to protect them. They live or die by copyright—their ability to license rights to publishers in exchange for advances and royalties. While copyright is meant to give authors control of how and on what terms others can use their works, publishing agreements tend to be negotiable only around the edges, and even then only by well-represented authors.

“Standard” contracts—the boilerplate offered to un-agented (or under-agented) authors—are even worse than those that most authors with agents or lawyers sign. That’s because agented agreements traditionally start off with the many changes that the agent or lawyer has previously negotiated with a particular publisher. One agented contract we’ve seen includes at least 96 changes from the original “standard” language, plus seven additional clauses and two additional riders. Every one of those changes is a point that the agent has negotiated in the author’s favor.

Why do publishers insist on offering their newest partners more than a hundred conditions so dubious that they’ll quickly back down on them if asked? It largely boils down to unequal bargaining power and historic lethargy. Anxious to get their works published, authors may wrongly believe that the contract their editors assure them is “standard” is the only deal available, take it or leave it. And much of that “standard” language has been around for years thanks to institutional inertia; as long as somebody signs an unfair clause that favors the publisher, the firm has no interest in modifying it. But even contracts negotiated by agents and lawyers often include longstanding “gotchas” that live on only because “it’s always been that way.”

It’s time for that to change. We’ll be highlighting particular clauses in the weeks to come. For now, here are just some of the issues we’ll be looking into:

Fair Book Contracts: What Authors Need

Half of net proceeds is the fair royalty rate for e-books
Royalties on e-books should be 50% of net proceeds. Traditional royalty rates reflected the concept that publishing is a joint venture between author and publisher. But despite the lower production and distribution costs associated with e-books, publishers typically offer only 25% of net. That’s half as much as it should be.

A publishing contract should not be forever
We think contracts should expire after a fixed amount of time. Publishers may pretend to consider this an unreasonable request—yet it’s precisely what they demand when they license paperback rights to others. Today’s contracts are generally for the life of copyright (meaning they essentially last at least 35 years, at which point copyright law gives the author the right to terminate the agreement). That’s too long.

Thanks to clever contractual language, it has become increasingly difficult for authors to get their rights back if the book goes out of print. “Out-of-print” clauses may be easily manipulated in this day of e-books and print-on-demand technology. At the same time, it’s more important than ever for authors to reacquire their rights so they can make e-book and print-on-demand titles available from their backlist. Unfortunately, we have heard too many stories of publishers refusing to revert rights or to make their authors’ books meaningfully available. Publishers should not be allowed to hold a book hostage; their contracts should provide clear language stating that if a specific royalty minimum is not paid within a certain period of time, then the book is defined as “out-of-print.”

A manuscript’s acceptability should not be a matter of whim
In standard contracts, whether a manuscript is acceptable or satisfactory is often in the “publisher’s sole judgment”; that means a new editor or management can reject a book on a whim and refuse to let the author publish it elsewhere until the entire advance is refunded. This can happen after an author has invested several years of work in the book, foregoing other opportunities in the meantime. Under some contracts, the publisher can even have the book rewritten at the author’s expense, decide whether or not to credit the new author, and maintain its own copyright to the additions and revisions. This is patently unfair. A publishing agreement based on a proposal is not an option, it is a contract to publish and pay, assuming the author delivers.

Advances must remain advances
Once upon a time, advances were typically split into two payments: one on signing of the contract, and one on acceptance of the manuscript. In recent years, we’ve seen three-part payment schedules: one-third on signing, on acceptance, and on publication. Now we’re seeing four-part payments: signing, acceptance, publication, and paperback publication. Slower payments shift risk from publisher to author. They also defeat the whole purpose of advances: to enable authors to devote themselves to completing their books without having to take on other work to make ends meet.

Publishers should share legal risk
No author can afford to put his or her entire net worth on the line, but that’s what many authors do when they sign publishing contracts. Authors are asked to assume the risk of suits for infringement or libel. This is true even where the publisher has lawyers who have vetted the book. Investigative journalists are most at risk. Forcing authors to assume the risk of a lawsuit can amount to a restraint on their speech. Publishers’ liability insurance should also cover authors. The author’s share of the risk, if any, should never exceed the total amount of the author’s advance.

Non-compete clauses must let the authors write
Authors must be free to write. The non-compete clause—an attempt to restrict the author from publishing work elsewhere that might cut into the current title’s sales—is no longer reasonable in the era of instant publishing. The clause should be simple: only the publisher can publish the current title, long excerpts from it, or a substantially similar work. Anything more is an unfair restriction on the author’s livelihood.

Options must be fair and paid for
Anything that keeps writers from publishing is simply unacceptable. That means option clauses should disappear. If a publisher wants an option on a future book, it should offer a separate payment for it and a quick decision on whether to offer a contract on it. Today’s standard option clauses often let the publisher delay the option decision until the current work is published. That can keep the author in limbo for years; it’s deplorable.

The author must have final say
When it comes to the text of the book, the author should have the final cut—that is, no changes in the text should be made without the author’s approval. The publisher should submit jacket flap and advertising copy to the author for approval. And the author should have the chance to approve any biographical material used in the book and/or publicity produced by or for the publisher.

Payments must move into the 21st century
Publishers’ methods of accounting have inevitably favored the publisher. Royalty statements and payments to authors typically appear only twice a year on income the publisher received between three and ten months previously. And the publisher can delay payment still further by invoking what is inevitably called a “reasonable reserve for returns”—that is, an estimate of how many books it will get back—without ever defining what “reasonable” means. The result is that it can be up to two years before an author is paid royalties for a sale. We think it’s time for royalties to be paid at least every three months with a limited delay and that every contract should clearly define “reasonable.”

“Special” book sales must not be at the author’s expense
Book contracts include a variety of royalty rates for different types of sales. Contracts routinely allow high-discount deals (such as selling a bulk load of books to a big-box store or a book club) to reduce the basis of the author’s royalty from the list price of the book to the much smaller net amount the publisher receives. Crossing the discount threshold from “normal” to “high” can magically reduce the author’s cut by more than fifty percent, giving the publisher a strong incentive to take that step. Why should an author accept this?

The above is just a taste of what we’ll address in the coming months. In addition to the standard book contract, we’ll also be identifying unreasonable provisions in self-publishing and freelance journalism agreements.

We’d like to hear from you. If a publisher has handed you especially egregious contract terms, please let us know. You can contact us here. But if your contract includes a non-disclosure clause, please don’t violate it. By the way, we don’t like those clauses, either.

Ultimately, we hope this initiative will create a climate of “just say no” to egregious contractual terms. We’d like you, the authors, to understand what you’re giving away when you sign your contracts, what you’re getting in return, and to make self-interested judgments about what’s fair. Of course, you just want to sign that agreement and get on with writing, but in the long run it’s in your interest to take a deep breath and to stick up for your rights, and for those of your fellow authors.”

Attorney Helen Sedwick on Legal Issues for Book Authors

Today we are going to interview Helen Sedwick, business attorney and author of Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing [Ten Gallon Press, 2014]. The book is available in paperback and as an ebook. It’s geared toward self-published authors, but the information equally applies to authors who are considering publishing with a small or large commercial publisher or a hybrid publisher. It has great advice. It’s easy to read. If you are intimidated by lawyers (or agents), this book will be indispensable.

Andy: Helen, welcome to “Ask the Agent”. Let’s start out by you telling us what you see as the biggest legal risks for writers?

Helen: Many writers assume their biggest risks are defamation and privacy claims, but I disagree.

Every year, hundreds of thousands of books are published, and only a few hundred defamation or privacy cases hit the courts. But tens of thousands of writers have signed on to unfavorable contracts they come to regret.

I have seen contracts where the author grants a self-publishing company or small publisher an exclusive license to exploit a manuscript in print, digital, audio and any other format, in any language for the life of the copyright. No reversion, no termination provision, little or no advance!

Yet, many writers don’t even read their contracts. One told me a contract looks like 5000 words run through a blender!

I am something of fanatic about this. I believe any writer who can master plot, character, and voice is capable of understanding key provisions of a contract, particularly the grant of rights clause. All they need is the right information. In the Appendix of Self-Publisher’s Legal Handbook, I include a line-by-line explanation of key contract terms.

Andy: But many writers are afraid to show their manuscripts to agents, editors and film producers because they are sure their work will be stolen. Isn’t that a big risk?

Helen: In reality, industry professionals are not likely to steal someone’s work. Being accused of stealing work would damage their reputations, and maintaining a good reputation is worth more than an untested manuscript.

Protecting ideas is a different matter. The basic idea of a work is not protected by copyright. In some industries, ideas are protected by Non-Disclosure Agreements, but in the publishing industry these agreements are rare. From what I have heard, anyone who asks for an NDA is seen as a newbie. Andy, is that your experience?

Andy: I agree with you there, Helen. Sometimes I get clients who want me to represent them, but don’t want to tell the publisher what the book is about. I always tell them that  we can’t play “no peaky” when we are asking them to pay an advance.  How else can writers protect their copyrights?

Helen: Writers should understand that they own the copyright in their work as soon as they put it down on paper or a hard drive. It’s automatic, whether or not the work is published or the copyright is registered.

But it makes sense for U.S. writers to register their copyright with the U.S. Copyright Office. Registration establishes a record of the work and is required before an infringement suit is filed. Registration within three months following publication increases the damages recoverable in an infringement action. Online registration is $35 and easy. No lawyers required.

Andy: I should point out that a lot of the book contracts from commercial publishers obligate the publisher to register the work with the Copyright Office. But some publishers require the author to do this.  Let’s go to back the problem of defamation and privacy claims. How can writers use real people in their work without ending up in court?

Helen: Writers use real people in their writing all the time, either as models for fictitious characters or by name in nonfiction. If they couldn’t, I suspect 95% of books would disappear.

But there are legal risks in using real people; defamation, unauthorized disclosure of private facts, and misappropriation of the right of publicity. Here are a few measures writers can take to minimize the risks.

For starters, writers should not print, tweet, or post anything they would not say in a room full of lawyers, at least without consulting with a lawyer.

Fiction writers should mask distinguishing characteristics and avoid retelling life stories too closely. The more villainous the character, the more the writer should mask. They should also use the standard disclaimer in their novels: “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”

Non-fiction writing involves more risk. Writers should take the time to educate themselves about the elements of defamation and disclosure of private facts. I summarize these claims on my blog.

For instance, writers should not say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. They should stick to verifiable facts, and let readers come to their own conclusions. In other words, show, don’t tell.

Andy: Let’s look at a real situation. I represented an author, a former paparazza, who took a photo of a famous movie star smoking hash by her front door. The picture was all over the tabloids. Would the author have legal exposure if the picture were in the book?

Helen: Unlikely.

Writers may be liable for disclosing private facts about an identifiable person if the facts are “offensive to ordinary sensibilities” and “not of overriding public interest.” What is offensive and what is public interest? Ultimately, a judge or jury decides, but generally the information must be very private and damaging.

As a preliminary any conduct in public is not protected, particularly today when everyone carries a camera. Public figures have almost no reasonable expectation of privacy. The starlet in your client’s image should not have been surprised that cameras are pointing her way.

Information in publicly available court documents and news reports are also not private.

However, writers should be careful about the misappropriation of the right of publicity; namely, using someone’s name or image for advertising or promotional purposes. Writers should never use anyone’s name or image on a book cover, advertisement, or in any way that implies an endorsement without express permission. Using someone’s name or image within a book as part of the editorial or creative expression is different; writers have more leeway.

Only living people (and in some states companies) can make defamation and privacy claims, but in many states the right of publicity survives death. In California, for 70 years. In Indiana, 100 years.

When in doubt, writers should engage an attorney for one-on-one advice.

Andy: Writers love to use song lyrics as part of setting a scene. Is it safe for a writer to use only a line or two of lyrics buried deep in the body of the book?

Lyrics are intellectual property, like text and images. If a writer uses someone’s property without permission, whether it’s a car, a bicycle, or the words to a popular tune, he is violating their property rights.

Using lyrics is particularly risky, not because they are special in the eyes of the law, but because they are owned by music companies that aggressively protect their rights. A writer could get a “cease and desist” letter from some big law firm. Translation–shred every copy of the book, even though the infringing words are 25 out of 95,000. Worse, a writer could be liable for monetary damages.

There is no need for writers to take these risks. Asking for permission is not difficult or expensive in most cases.

On my website, writers can download a PDF with instructions on how to identify who owns a song and how to ask for permission, How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer. I have a similar PDF for using images.

Andy: Helen, I’m a little surprised by this. I represent a biography of a recently deceased songwriter and performer. The title of the book is the title of one of songwriter’s most famous songs. And the author wants to use an occasional line or two of lyrics as chapter headings. Isn’t there a Fair Use Doctrine that allows you to use a minimum amount of lyrics or other copyrighted material without a permission? What about the title of the song being the title of the book?

Helen: I would encourage the writer to seek permission. If that’s not possible, then this is a perfect example of when someone should consult with an attorney on how to minimize risks. Sorry to punt here, but there is no one answer fits all.

While we are talking about titles, what if another  writer releases a book using the same title as mine? Are there any legal claims?

Most writers are surprised to hear that titles are not protected by U.S. copyright law.

It’s ironic, really. Anyone who has written a novel will tell you how difficult it is to come up with a title that is resonant and eye-catching. Yet titles are not protected under copyright law, because they are considered too short to contain sufficient “original expression.”

A very famous title or the title of a series may become a trademark however. If a writer’s title becomes as famous as The Da Vinci Code, then it’s time for to consult with an attorney about trademark protection. This a problem of success. I hope all our readers have this problem.

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Writer and lawyer Helen Sedwick uses 30 years of legal experience to show writers how to stay out of court and at their desks. ForeWord Review gave her Self-Publisher’s Legal Handbook Five Stars, calling it “one of the most valuable resources a self-publisher can own…well-written and authoritative yet unhampered by legalese.” Her blog coaches writers on everything from protecting copyrights to hiring freelancers to spotting scams. For more information about Helen and her work, check out her website at http://helensedwick.com

Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.

 

Questions About Literary Agents Asked and Answered

I attend lots of writers conferences all over the United States. Almost all of them have “agent panels” where participants ask agents to address their questions. Here are some of the most common. And if you have other questions, send them to me and I’ll try to answer them.

1) Can I send my book to a publisher without being represented by an agent?   The legendary publisher, Alfred Knopf, once said “An agent is to a publisher as a knife is to a throat.”  Things have changed since then. Now the largest publishers will only accept agented submissions. They expect agents to filter out the  projects that are unsuitable for commercial publishing. Publishers  believe, probably correctly, that  agented submissions as a group  are more likely to be of higher quality. Many of the smaller publishers don’t require agent representation.

2)  Can an agent get me a bigger advance? Most writers think that an agent is in possession of secret alchemical powers that will get them more money. This is true to a certain extent. Going into negotiations  publishers usually have a sense of how much they are willing to pay for a book. An experienced agent will be more likely to know what the publisher’s bottom line is and secure it for you. Otherwise you might find yourself accepting  a very modest offer. Book deals and book contracts are loaded with “roadside bombs”.  You need to be aware of them or work with someone who is.

3) Other than helping me get more money, what will an agent do? A good agent will earn her commission in a myriad of ways. There are dozens of publishers, big and small, who would serve as good homes for your book. A good  agent knows which publishers are appropriate and which editors within the publishing houses would be most open to your project. You don’t want to send your literary novel to an editor who specializes in science fiction.

Most novels and non-fiction book proposals aren’t ready for submission when an agent receives them. A good agent will work editorially on a client’s novel and will improve a book proposal to make it more convincing to a publisher. A good agent will work to enhance a client’s career as a writer and serve as an ally throughout the publication process and after.

A bad agent will do none of these things.

4) How can I tell a good agent from a bad agent? Sometimes you can’t, but here are some things you ought to be aware of. An agent should work for a commission only. If the agent can’t sell your book, he will receive nothing. The biggest red flag signaling   bad agents is that they charge money up front for such items as editorial services or  reading fees. Don’t work with these agents. Check out the website “Author Beware”. It has good advice about how to avoid unscrupulous agents.

More difficult to assess are agents who are simply too lazy or too busy to provide you with the kind of support you need to find a publisher. Many of these agents are very successful and have a large number of high profile authors they represent. I have frequently worked with extremely talented writers who had been previously represented by one of these “celebrity” agents. Those authors were not served well. One of them, for instance, had written a fine literary novel, a genre difficult to sell. His first agent sent it out to the usual 10 big houses. When the book was turned down, the agent gave up. I loved the book and decided to represent it. I found another 30 publishers who would have made a good home for the book. When you are looking for  agents, it is a good idea to ask them if they will go the mile to get  your book published, even if the likely advance will be modest.

5) How do I do the research to find the right agent for me? I wrote a blog about this called: “11 Steps to Finding an Agent”   which will give you more details. There are several good websites that provide resources for finding agents. My favorite is Agentquery.com.  It allows you to do searches based on defined criteria. You can specify that you only want agents who are actively seeking projects in your genre. Once you develop a list of possible agents, you want to go to each one’s website and try to evaluate further whether this agent seems right. Always look for their submission guidelines on their websites but also check out their list of books and authors to see if you are going to be compatible. Watch out though. Agents are inveterate name droppers. And just because they have some big name authors doesn’t mean they won’t be interested in your book.

6) How important is it to have a New York agent, a “celebrity” agent, or an agent from a big agency?  As we said above, having a “celebrity” agent may not be right for you. It’s impressive dropping their names at literary parties,  but that’s probably not your main objective.

Some authors still think that there is some advantage working with agents in New York. This isn’t true either. In the old days we heard that most book deals were the result of “connections”  and were consummated over the famous “publisher’s lunch.” It probably wasn’t true then, and it definitely isn’t true now. The big publishers are all owned by multimedia conglomerates. Editors are under intense pressure to acquire books that will meet the often unrealistic expectations of their corporate bosses.  Ask any editor and they will tell you that the single most important element for them in the acquisition decision is a good book proposal. For fiction, it’s all about the story. Of course an author’s previous track record will play an enormous role in the decision.

There are some advantages and disadvantages working with a big agency. Sometimes there is considerable collaboration within the agency and accordingly there may be useful collective wisdom. Some agencies have foreign rights departments or film /tv specialists who can work to sell subsidiary rights. A good independent agent, though, will have a network of foreign and entertainment co-agent specialists who will perform the same services. Regardless of the size of the agency, you need an agent with a passion for your project, a belief in your talent, and the will to walk the walk, not just talk the talk. There are no good agencies or bad agencies. There are only good agents and bad agents.

 

To be continued. We will ask and answer questions about query letters, book proposals, book deals, commercial vs. self-publishing, and more. Send me your own questions and I’ll try to address them.

Interview With Authors Guild General Counsel, Jan Constantine

Today we are going to speak to Jan Constantine, general counsel for the Authors Guild.

The Authors Guild is the largest and oldest organization representing authors in America. I love the Authors Guild, and as an agent, I am proud to be a member.  It is an amazingly robust, sometimes even militant, advocacy organization that fights for the rights of all writers. They engage in numerous activities including lobbying Congress on copyright and book piracy issues and advising writers on how not to get taken advantage of by publishers. In this brave new world of the Internet, where tech gurus tell us that “information wants to be free,” The Authors Guild fights for the quaint notion that the work of the writer, like all work, has dignity and deserves to be compensated. Everyone reading this blog should join. It’s only $90 a year.  Check out their eligibility requirements.

Andy: Jan, welcome to “Ask the Agent.”  I think the $90 membership fee for the Authors Guild is a pretty good investment for any writer. Can you tell me what that buys you?

Jan: Absolutely, Andy, and thank you for having me.  One of the things our members find most useful is our Model Book Contract.  It’s a manual that goes through a publishing contract clause-by-clause.  For every provision, we provide members with what we think of as a “model” clause, and then next to the model clause we provide a running commentary educating authors about what exactly is at stake in each part of the publishing contract.  It’s a very empowering tool that gives authors the knowledge and insight to successfully negotiate with publishers.

Andy: As an agent, I have to negotiate book contracts all the time, and I find the Model Contract an indispensible reference. Not to put too fine a point, a book contract is an asymmetrical agreement where the publisher agrees to give the author a pathetically small amount of money in exchange for the author’s intellectual indentured servitude for the term of the copyright. The Model Contract is a great tool for helping the author avoid the pitfalls. Of course the Model Contract and  representation by a good agent is even better. Can you just tell us a few of the issues in a book contract  that authors should be watching out for?

Jan: Our Model Contract advises authors to be wary of a number of one-sided provisions that are often present in publisher’s boilerplate forms.  One to look out for is a so-called “joint accounting” clause, which provides that any money the author might owe the publisher under contracts for other books can be deducted from payments due to the author under the current book contract.  Our position is that each publishing contract and book should be treated as a separate venture.

Non-competition clauses, if broadly-worded, can also be troublesome. Most book contracts have non-competition language that restrains the author from publishing a “competing” work.   We counsel authors to define a “competing work” as narrowly as possible, especially if they think they might write subsequent works on the same or a similar subject.

Another potential hazard is  the “satisfactory manuscript” clause, also present in most publishing contracts. It can be unfair to authors if it allows the publisher to reject the manuscript for any reason at all.  You don’t want a publisher to be able to reject your manuscript just because of a change in market conditions or a perceived shift in readers’ tastes.  You want to insert some sort of objective standard here, such as a clause stating that your manuscript must be “professionally competent and fit for publication.”

Those are a few issues that come to mind.  The bottom line is that a publishing contract is a joint venture between author and publisher.  A well-negotiated contract should reflect their mutual investment in each other.

Andy: So, Jan, what else does the Authors Guild do?

Jan: Of course there’s our lobbying, which you mentioned in your introduction, and our lawsuits.  Members also receive our quarterly Bulletin, which covers the publishing industry from the author’s perspective, and they have access to legal services, such as contract reviews and intervention in publishing disputes, at no cost.  Then there’s the Author’s Registry, a not-for profit that secures foreign royalties for U.S. authors.  All members are automatically enrolled.  Since 1996 the Registry has distributed more than $22 million to authors.  We have a program called Backinprint.com which lets authors sell their out-of-print books as print-on-demand paperbacks.  We offer web services that allow authors to build full-featured websites.  We host in-person and phone-in seminars to educate authors on all aspects of their profession.   That’s a long list.  We like to think that membership is a great value.

Andy: And you get all that for $90 a year!  Let’s talk about “information wants to be free.”  This cliché seems to express a kind of ethos going around the Internet. It’s exemplified by “Wikipedia.”  It’s a world where all people are experts and where people’s intellectual work is accordingly devalued and not worthy of compensation.   Do you care to comment on this?

Jan: Well, I think Wikipedia may not be the real enemy here.  That’s a situation where people are donating their expertise with no expectation of financial compensation.  We’re more concerned with piracy—theft—making copyrighted works available for free, in violation of the author’s right to distribute her work and her right to make a living from her work.  And yes, this type of piracy does seem to be encouraged by those who rally behind that slogan, “information wants to be free.”  But you know what?  That’s only half of it.  They get that slogan from Stewart Brand.  But what Brand was talking about was this tension that won’t go away.  Information wants to be free, he said, because it’s so cheap to distribute now.  But on the other hand, he said, information wants to be expensive.  Why?  Because it’s so valuable to the recipient.  And this is a tension that is embodied in our nation’s copyright laws in a very productive way.  The author has exclusive rights, sure, but there’s also fair use, and exceptions for schools and libraries, and the fact that copyright doesn’t last forever.  It’s a tension that’s expressed in the Copyright Clause in the Constitution, and it’s a tension acknowledged by Congress every time it brings different stakeholders to the table to discuss what needs to be changed in our copyright law.

Andy:So what kinds of things is the Authors Guild doing to combat piracy?

Jan: Well, I just mentioned Congress.  The Authors Guild has been working with legislators and private companies for years to develop a more comprehensive solution to online piracy.  Two bills proposed in 2012—SOPA and PIPA—would have done something to diminish Internet piracy, and we supported them.  Search engines and Internet service providers are profiting daily from linking to and hosting pirate sites, and the  Digital Millennium Copyright Act, the 1998 law that addresses this problem, is doing little to stop them; the Copyright Alert System is doing little to stop them; and they certainly aren’t policing themselves.  For example, an international recording industry group recently announced it sent its 100 millionth piracy notice to Google—with no noticeable demotion of pirate sites in search results.

Andy: I hear a lot of people who seem to think book piracy is no big deal. I think it’s stealing and no different from shoplifting books from a bookstore. What do you think? (That’s a rhetorical question, obviously.)

Jan: We couldn’t agree more.  The only difference is the extent to which this type of theft is accepted, or at least ignored.  And that seems to be at least in part a result of the “information wants to be free” ethos.

Andy:  One of my pet peeves is Amazon.com. It seems to me that they have cultivated a notion that books cost too much, that e-books have a kind of inherent value of about $2.99. I don’t think this price recognizes the value added that goes into a professionally written and published book. Can you explain why books, electronic and paper, might merit a higher price?

Jan: The real problem is that Amazon is selling books at an artificially lowprice.  A look back at Amazon’s tactics over the years makes it very clear they’ve always used books as a loss leader.  Amazon has sold print books at a loss for years in order to drive its market share.  It’s doing the same thing with e-books.  It’s an artificial market.  This shields it from competition with any but the biggest competitors and makes it incredibly difficult for brick-and-mortar bookstores to enter the e-book market. And you’re right, the danger is that consumers get the notion that the inherent value of a book is cheaper than it actually is.

Andy: Recently the United States sued Apple and the major publishers for trying to fix prices. The publishers lost. The Authors Guild was supportive of the publishers in this instance. How come? Shouldn’t we be encouraging free market competition?

Jan: Well, our position was that the strategies pursued by Apple and the publishers were increasing competition.  Apple and the publishers were offering a new model for the sale of e-books, where Apple would act as the publisher’s sales agent, with no authority to discount e-book prices.  In the two years after this new “agency model” was introduced, Amazon’s share of the e-book market fell from 90% to 60%.  Barnes & Noble introduced a tablet to compete with Amazon’s Kindle during this time.  Brick-and-mortar stores began partnering with Google to sell e-books to their customers at the same price they were being sold from Amazon.  These look to me like the effects of a free market.

Andy: Jan, thanks. This is just a small sampling of what the Guild is doing. You should check out their website and blog.

Interview with Andy Ross

A few weeks ago John Marlow, who is an editor and script writer in Los Angeles, contacted me and wanted to do an interview on his Self Edit blog. It is a fantastic blog for writers who are interested in writing for movies or getting movie deals. I liked the interview so much that I’m posting it here. We will do it in 2 parts.

JRM: Why did you become—and why do you remain—an agent? What got you started, and what keeps you going?

Andy Ross: Most agents come out of publishing. Usually editorial. This makes a lot of sense. They have experience in the decision to acquire books for publishers. They know the calculations that go into making the decision, and they usually know what general sorts of books publishers are looking for.

I came into this job from an entirely different background. I was a retailer for 35 years. For 30 years I owned and managed Cody’s Books in Berkeley. It was an extremely well known and highly regarded store that had a reputation for its unusual selection of titles and its commitment to books of literary and intellectual value.

This gave me an unusual perspective. I like to say that, as buyer for the store for so many years, I have been pitched over 50,000 titles. It was invaluable experience for understanding the tastes of a very wide range of publishers.

It is pretty easy to make a submission list of the imprints from the 6 major publishers in New York (Macmillan, Random House, Simon and Schuster, Harper Collins, Penguin, Hachette Book Group). But in the tough world of publishing, realistically it is going to be necessary to go down the list to smaller houses. As a retailer, I am more familiar with a wide range of imprints than many other agents.

When I left Cody’s in 2007, I wasn’t sure what skills I could bring to any new job. I had a sense that my future lay in…maybe…sacking groceries at Safeway. But I had a kind of epiphany that I would be a pretty good agent. I think I am. I’ve sold 21 books [link]  in my two and a half years at this job. Many are lead titles.

I love working at this other end of the book food chain. And getting an offer on a book is a really emotional experience. Getting rejections is also an emotional experience, but that is another story. Honestly, I love this work. I wish I had started years ago. It’s like Christmas every day.

JRM: Given your seen-it-all perspective, what still gets your attention and makes a query
stand out from the crowd?

Andy Ross: I see a lot of articles and presentations for writers about how to structure a query letter. Some of them even profess to offer a kind of kabalistic secret technique that will assure the writer of finding an agent and a publisher. I don’t buy that. The best kind of query letter is one that pitches a good idea for a book from a person who has the authority to write it and the platform to get attention for it

You should always look on an agent’s website for submission guidelines. Speaking only for myself, I like a short query (half page or less) sent by email with the text embedded in the email that tells me the genre of the book, succinctly what the book is about, the audience it is trying to reach and why the author has the authority to be writing about this subject.

You have no idea how often I get queries that begin with a kind of breathless narrative. Two long paragraphs later, it is still unclear whether the book is a novel, a memoir, or something else. I don’t like that.

But, notwithstanding, if I get a query with a project that excites me, it doesn’t really matter if the format is different. I just did an entry on my blog called 9 Tips for Effective Query Letters, which conveys a better idea of what I’m looking for when I read query letters.

JRM: What are some of the mistakes you see new writers make in their approach to people or the industry?

Andy Ross: There is an old cliché that publishing is the marriage of art and commerce. In these hard times it is a kind of S&M marriage with commerce being a rather harsh dominatrix. Publishers are under huge pressure to make money. I suppose they have always been. And their first concern is how to find an audience large enough to make publication a viable commercial venture.

This is only to say that the decision to publish a book is quite different than a judgment about whether a book is high art or intellectually worthy. And writers need to have no illusions about that.

JRM: What are the most important things for a writer to know—in general, and when approaching an agent?

Andy Ross: It’s important for writers to understand that publishers are going to expect the writer to do the heavy lifting in promoting the book. A writer can’t just write. He has to be a savvy marketer as well.

And writers should also be realistic and be aware that we live in a world obsessed with celebrity and driven by mass media. Increasingly the books that are selling are the books that are getting media attention, books by personalities.

Sarah Palin’s rather mediocre book was the best-selling nonfiction book of 2009. All of the best selling fiction books last year were by name-brand authors. Chances are that if you don’t already have a mass following, your book will sell in modest numbers. The most difficult job I have as an agent is managing my clients’ expectations.

JRM: What qualities do you look for—and look to avoid—in a writer-client?

Andy Ross: It is always easier to sell a book by a writer with “platform”. Platform is a word you hear a lot in publishing. It means that you are famous or otherwise important and will have access to media and reviews.

A professor with an endowed chair at Harvard has platform. Anyone you see on the tabloids as you are checking out at Safeway has platform. Sarah Palin has platform. The Chilean miners have platform. Oprah’s hairdresser (or anyone else associated with Oprah) has platform. Writers, like everyone else, are all different. I try to be tolerant of their virtues and vices.

JRM: What should a writer look for—and avoid—in an agent?

Andy Ross: I hear a lot of myths about what is good and bad in an agent. I hear that it is always best to get an agent from a large prestigious New York agency. Certainly it is always nice to impress your friends by namedropping your celebrity agent, but it isn’t necessarily going to help your career. Some of these agents are pretty good. But they may not have much time to work with you. Some of them think that it is their job to flip contracts, rather than help the author develop her ideas into good and publishable projects.

A lot of authors think they need an agent, because they can’t get published without one. That is probably pretty realistic, at least with the major publishers. But no agent, no matter how prestigious, is going to be able to sell a book that would otherwise not interest a publisher.

A lot of writers think that an agent can get them a big deal with a big publisher and negotiate a very favorable contract. Agents generally have some knowledge about what to ask for in a deal and sometimes how to leverage a situation into getting a bigger advance. Some, but not all, agents know the pitfalls of publisher boilerplate contract language and can make some limited beneficial changes. But these are not really the most important parts of an agent’s job. You can check out my blog article about the book deal for more detail [link].

If you speak to published authors, most of them feel that their agents are essential and that the commissions are well-earned. But they also will tell you that the real value that the agent brings is to be a creative advisor, first line editor, business manager, intermediary with the publisher, a person who works to advance the writing career of the writer, and is sometimes a shoulder to cry on.

Watch out for agents who are not willing to go the distance to see your book get published. I have worked with a number of authors whose agents submitted their projects  to six big houses, and then gave up after six rejections. Those are not good agents.

I was on an agent’s panel recently, and another agent had a very telling story. A novelist came to her because she was unhappy with her previous agent. She said that the agent had submitted her novel to 40 publishers and it was rejected by all of them. My agent friend advised her that if she could find an agent who would do that kind of work for her even after facing so many rejections, that was a sign of a very good agent.

That said, there are a lot of people selling themselves as literary agents. Some are pretty marginal and some are scammers. Never hire an agent who charges money up front or who accepts you as a client conditional on your being willing to pay for other services. A good agent works on commission only. Anything else is a red flag. So watch out.

It is always a good idea to find an agent with some experience behind them, some one for whom agenting is a full-time job. But new agents can be good too; I was a new agent about 30 months ago. New agents will take more risks and may very well be willing to work harder for you.

George Witte of Saint Martin’s Press Talks About the Work of an Editor

George Witte is editor-in-chief of St. Martin’s Press, an imprint of Macmillan Publishers. He has worked at St. Martin’s since 1984.  Over the years, George has acquired and edited books by notable literary novelists including Fred Chappell, Robert Clark, Claire Davis, Eric Kraft, Janet Peery, and Gregory David Roberts;  thriller writers P. T. Deutermann and David Poyer; and a wide range of nonfiction authors including Ray Anderson, Francis Bok, Jason Elliot, P. M. Forni, Emmanuel Jal, Stephen P. Kiernan, David Kirby, Irshad Manji, Bill Reynolds, Mitt Romney, Matthew Scully, Gerry Spence, and Charles Sykes.

George is also an award winning poet whose poems have been published in (to name a few): The Atlantic,  The Kenyon Review, Ploughshares, Poetry, Southwest Review, and The Virginia Quarterly Review. His most recent collection of poetry is: Deniability: Poems published by Orchises Press in 2009; his first book, The Apparitioners, was published in 2005, and also is available from Orchises.

Andy: George, thanks for coming to the blog today. I’d like to talk about how you make acquisition decisions. I’d just like to add that this blog has done some entries on publisher rejection. Most recently we composed: Publisher Rejection Letters From Plato to Hitler. Let’s hope that St. Martins would publish the former and reject the latter.

 Andy: Can you tell us some of the books you have been working on lately? Maybe one by one, tell us what they are, why you are excited about them and what did you consider when you made the decision to acquire them?

George:  This spring and summer I have continued to work on the publication of David Kirby’s Animal Factory, a book on factory farms and their enormous environmental impact, which becomes more relevant each day.  (Last week’s massive egg recall is just one example.)  Kirby is a terrific investigative reporter and writes with a sense of narrative urgency; he knows how to organize complex information and science into a story about people, and he has a nose for important subjects.

 

Andy: That sounds like a very interesting book. One of my clients is Jeffrey Moussaieff Masson, who writes about animal rights and animal emotions.  I’ll make sure he reads that book. What other book do you find exciting right now?

 

 George: Another recent book is Stephen P. Kiernan’s Authentic Patriotism, which seeks to reclaim the word “patriotism” from the current “us vs. them” climate of hysteria, and defines it as many of the founding fathers did: as service by citizens to country.  Stephen is a dynamic writer and speaker who inspires everyone he meets, and this book portrays a wide range of Americans who are doing remarkable, wide-ranging things that improve the lives of people in need…with no political agenda.

Andy: How many book proposals do you look at in a typical week? How do you sort through them?

George:  I read 20-40 proposals and manuscripts each week, most of the proposals for nonfiction books, most of the manuscripts fiction.  Nearly every project is represented by an agent, and the proposals are structured in roughly the same way: a descriptive overview of the book, a chapter outline (often with substantive text), at least one sample chapter, an assessment of competitive and/or similar books on the subject, and information about the author’s credentials.  All these proposals reach a level of professionalism, and all are “publishable.”

Andy: So what are the things in the proposal that really grab your attention?

 George: When I’m reading, I’m really listening…for a voice, a sense of urgency, a passion for the subject that excites me even if I have no previous knowledge of or interest in the subject at hand.  Yes, other things are important: how many books on this subject have been published recently, how have they sold, and how is this proposed book different?  Does the author have a “platform,” which can mean anything from he/she is a journalist who has published widely on the subject, or is an academic writing for a general audience, or is an expert for some other reason, or has contacts with individuals, groups, organizations, and media that can help the publisher sell, market, and publicize the book.  But the key thing is the author’s voice, which no amount of proposal-laundering and packaging can supply.  The best books have a distinctive sound and it’s audible from the very first encounter.

Andy: It sounds to me that you have pretty wide ranging interests. Do you have any special areas that might fit into the publishing program or are you just looking for good books that excite you and (hopefully) your readers?

George:  St. Martin’s publishes all kinds of books for all kinds of readers.  Different people want different things from books—some want pure entertainment, some want information about a specific subject that is important to them, some want to learn about a completely new subject, some want to be deeply moved, some want to change their lives and hope a book will show the way.  We read a wide range of books and look for those that seem the best for their intended audience.  These days, I’m looking for investigative journalism, current affairs/issues, a certain kind of memoir (usually those that connect with larger social questions), and narrative nonfiction.  I am not publishing as much fiction as I once did, but am open to a special literary novel. 

Andy:  But even if you fall in love with a project, it doesn’t mean it will get published. Where is the final decision made and who makes it?

George:  Final decisions are made at our weekly editorial meetings, with our two publishers having the last word.   

Andy: Could you tell us a little more about how you work with books after the book gets acquired?

George:  After acquisition, I’m in touch with the author along the way to delivery of the manuscript.  Some authors like to submit sample chapters or sections, others prefer to finish the book and begin editing then.  I work closely on editing—line to line as well as structural—and usually go through two drafts with the author before we have a final manuscript.   Then I circulate the manuscript to the people in house who will have a hand in its publication: art, sales, marketing, publicity, subsidiary rights, and others.  After it’s typeset, I seek out advance quotes to help support the efforts of the sales, marketing, and publicity departments, and I work with each department to provide information that will be useful in their respective efforts.   I attend a range of meetings to discuss these efforts and follow up with each department.  I work with the author throughout the publication and usually for at least three or four months after publication date, or longer if needed, to keep reaching out for readers. 

Andy: George, we are always hearing that editors don’t edit any more. It sounds to me that you are still of the old school.

By the way, I’m the agent for a lead title at St. Martins in the spring. It is called The Jersey Sting. Most people remember the unforgettable picture of the Hassidic rabbis in handcuffs. The book is about the biggest corruption scandal in New Jersey history (and that’s saying a lot.) The authors are journalists with The New Jersey Star Ledger and were finalists for the Pulitzer Prize for coverage of this story.

The Slush Pile

Let us consider the slush pile.

David Patterson, a senior editor at Henry Holt, whose taste in books I admire greatly, sent me an article from The Wall Street Journal online entitled: “The Death of the Slushpile.”

Way back when, the slush pile was an uncomplimentary term used by publishers for the  unsolicited manuscripts they received by the bucket load from aspiring writers. As the above article will tell you, “slush is dead.” At least it is with commercial publishers. Apparently they  were finding that it exposed them to copyright infringement lawsuits. Every time a book was published with even the most remote parallels to an unsolicited submission, the publisher was accused of using the slush pile as a flower garden of ideas to pluck. Copyright infringement suits are to publishers what medical malpractice suits are to doctors. Publishers have attempted to reduce their exposure by inserting an “indemnity clause” in the book contract. This provision, hateful to all writers and their agents, puts the onus of defending against copyright infringement claims, no matter how frivolous, on the shoulders of the author.

 But I digress. Publishers were also finding that the payoff  from  sorting through slush didn’t justify the time and expense of a 22 year old entry level editorial assistant plowing through unpublishable manuscripts. And, in truth, finding  something good out of the slush pile was a little like winning the lottery.

So now if you push the “acquisitions” button on a publisher’s website, you will see that they will  accept only agented submissions. The slush pile is no more. On  one level, I find this puzzling. The legendary publisher, Alfred Knopf, once said, “Agents are to publishers as a knife is to a throat.” Now they have bestowed upon us at no cost the exclusive license to act as the toll gates of the literary superhighway.  

Well, ok. There is a cost. And that cost is – slush. Agents have replaced the editorial assistants in sorting through the unsolicited manuscripts. I don’t call it slush. It’s a demeaning term. I have spoken in a previous blog posting (Ann Lamott and Albert Camus on Writing ) that writing is a courageous act. And the activity deserves to be treated with dignity and respect. I  prefer to use the term: “queries received over the transom.”

A lot of the big-time agencies don’t have much truck with slush either. And I am told that finding an agent for a number of genres is about as hard as finding a publisher. But, look. I hear about agents who get 100 queries a day. What are they to do? I’m a smaller and newer agency. I get about 40 queries a week. It seems to be growing though.  Most of the queries I get are for fiction or personal memoir. My website and my listings on agent directories clearly state that I don’t accept fiction and personal memoir. But I try to respond in a timely manner. Mostly I politely copy and paste a “thank you, but it is not for me.”

I have taken on a few projects from the slush pile. Excuse me. From over the transom. And I got one published by an author who was living in his brother’s under heated attic in Maine. On the day of publication, he wrote the op-ed piece in The New York Times.  I’m pretty proud of that. And other agents whom I respect all have stories of great projects that they fished out of the slush. So I urge aspiring writers to send their projects out. Hope for the best…. But expect the worst.

People in publishing always like to talk about the great projects by unknown authors that rose above the slush. The Diary of Anne Frank was originally rejected by the Paris office of Doubleday.  Stephanie Meyer’s Twilight was discovered by a young assistant agent. Philip Roth got his first story picked up by The Paris Review.  And J. K. Rowling had her Harry Potter rejected by 20 publishers before it was sold to  Bloomsbury UK.. John Toole’s Confederacy of Dunces was rejected by just about everyone in publishing until it found a home after the author’s death. It went on to sell several million copies and win the Pulitzer Prize for fiction.

When I first became an agent, I went around New York for a few days talking to editors. I asked all of them what was their biggest mistake in book acquisition. (This would be a good blog posting. We’ll do it another time.) My favorite response was from a very prominent editor who rejected The Name of the Rose by Umberto Eco. But she said it wasn’t really a mistake. She thought it was lousy and boring. Because of her judgment on the book, it would never have succeeded with her as editor.

 And so, gentle reader,  if you will excuse me, I need to go back to reading my slush. I  will set aside my world-weary cynicism and approach the task with eagerness and hope. Because I know that, amidst the dross and the folly, lies the novel of the next Jane Austin – waiting to be born.

The Book Deal: Territorial Rights

The Book Deal: Territorial Rights

Most people think of book deals as just that: a author gets paid by a publisher to publish his/her book. But it is a little more complicated than that. The book deal is a  negotiation that includes, not just how much the author will get paid, but  also what “subsidiary rights” will be granted to the publisher for exploitation. There are numerous revenue generating opportunities when you write a book. They include: right to license in the English Language in the UK and other English speaking countries, translation rights, audio rights, e-book rights, sale of abridgements, magazine excerpts,  movie/tv/performance rights, merchandise spin-off rights, and many more. All book deals include negotiations of  which of these sub-rights are being granted to the publisher and what will be the revenue split between publisher and author.

Today we will talk about territory rights. These are important deal points and are always negotiated along with advances and royalties. These rights are typically the right to sell a license to a foreign publisher to publish  in another country or another language. Sometimes publishers merely export the existing book and have it distributed in foreign markets. No licensing rights are involved in this situation, but there is still an opportunity to negotiate the royalty on books for export.

In a book deal, territorial rights are always split into at least 3 categories.  These are:

  1) North American English (which includes US, Canada, and usually The Philippines). I’m not sure why the Philippines usually gets thrown in, but it almost always does.

2) English language rights in the remainder of the world, which includes UK, Commonwealth countries or former Commonwealth Countries (Australia, New Zealand, South Africa, sometimes India, etc).

3) Translation rights. Obviously all languages other than English. One of my clients has books translated into 29 languages, some of them he has never heard of.

Publishers usually try to negotiate “world rights”. This is the right to publish or license the publication of books throughout the world. Publishers will usually offer the author 50% split on the income from these rights. That is a good deal for the publisher, but not such a good deal for authors. The work involved in selling these rights is minimal. The income is substantial. If I am negotiating with the publisher, and we have determined to sell them world rights, I try to get the percentages up to 75-80% for the author.

Usually it is more advantageous to reserve as many world rights as possible for the author and have the author (or his agent)  sell them himself.  In this situation, the author gives the right to the publisher only to publish in North America. The remainder of the  rights are retained and sold by the author  throughout the world  with no split going to the US publisher.

As in all aspects of the book deal, the ability to hang on to the foreign rights is dependent on how much leverage you have in negotiation. If you have multiple suitors or are conducting an auction, you can simply make the rule that the only rights being offered are for North America. If you only have a single offer, you may not have a strong say in the matter. Also a publisher may make an offer so generous that it is worth giving them world rights in exchange. And frequently, because of the subject of the book, world rights might be insignificant, and should not play a critical factor in the book deal.

Let’s try to calculate the value of retaining the territorial rights versus selling them to a publisher. In this example, let’s say we have an offer from a UK publisher for $10,000. If your publisher controls the rights to the book, and your contract calls for 50-50 split on the revenue, here is how it breaks out:

UK advance $10,000

 Publisher’s agent commission: $1500

Less publisher’s 50% cut on the right $4250

Author’s Revenue $4250

Less commission to author’s agent $ 637

Net to author $ 3613

This isn’t such a great deal. The author ends up with 36% of the income gained from the sale of the rights. And there will also be a substantial amount withheld for taxes from the foreign government. Another disadvantage is that the income that is due the author by the US publisher will not be paid upon receipt but will be deducted from your advance. You will not see this income (if ever) until far down the road.

Now let’s look at the same situation when you retain your rights.  As an agent, when I negotiate retention of these rights, I receive a slightly higher commission of 20%. The reason for that is that I will have to split my commission with a foreign agent. Most agents do the same, although the amount varies.

.

UK advance                                           $10,000

Revenue due author                             $10,000

Less author agent commission           $2,000

Net to author                                         $8,000

Definitely a much sweeter deal for the author. Don’t forget, you still have the tax withholding to a foreign government. But these tax payments will be credits against your US taxes. So it should be a wash. The other advantage in this situation is that the money will come to you up-front and not be deducted from advances. As we said in a previous blog entry, it is always better to get money sooner rather than later.

There are some other advantages and disadvantages to these respective deals. The advantage of selling world rights to the publisher is simplicity. But also it is possible that the publisher has resources and connections that are not available to you. Perhaps you can make an effort to sell the rights yourself. If unsuccessful, you can always turn them over to the publisher.

But the opposite is also true. It is possible that a small publisher doesn’t have resources to sell the book. And won’t devote the resources that they have to aggressively sell the rights. With a large publisher that has offices world-wide, they might make an inside deal with one of their own subsidiaries with an advance below what the market would offer.

Regardless of who controls the territorial rights, this is an important part of the book deal and potentially a very lucrative source of income for the author.