Pub Rants

Category: publishing contracts

14 Reasons Agenting Is Harder Now Than 20 Years Ago

by Kristin Nelson

Lurking on Twitter, I stumbled on a thread of agents contemplating whether they should stay the course in this career. Some of the chatter echoed a conversation I had just weeks prior, where I said, “Agenting today is way harder than when I started agenting twenty years ago.” Just like that I sent out a request for input from agent peeps asking if they thought this was true. An earful hit my inbox. The consensus? Yes, agenting as a career is significantly harder than it was when we were baby agents. Here are fourteen reasons why.

Before I dive in, the requisite disclaimer: The information contained in this article is purely anecdotal and does not claim to represent an appropriate dataset for completeness, accuracy, usefulness, or even timeliness. I emailed a bunch of agents I knew, asked a question, and folks responded. That’s the level of “research” I did. This article is definitely not intended to be advice or a substitute for advice from, you know, a real expert or professional on the topic nor should any reader make a career decision or follow a particular career strategy based on content here. For further guidance, feel free to shake a Magic 8-Ball. 

More Agents Agenting

Although the Writers Market phone book was huge back in the day, the number of agents actively agenting and doing regular books deals is higher today—especially in children’s and young adult—than it was twenty years ago. I recall only about thirty of us repping in the field in the early 2000s. I don’t know the number today, but it’s probably 100 or more. Also, many editors have made the move to agenting in the last five years. With more agents in the field, more submissions are hitting editor inboxes. (Conversely, there are also more agents leaving the industry. Not a week goes by that I don’t receive a query that begins, “My agent has recently left the industry so I’m looking for new representation.”) Still, the bottom line is that more agents are agenting in 2021. 

Agents Acting More Like Editors

A project has to be close to perfect for a buy, so an agent today is doing far more editorial work pre-submission than back in the day. In the early 2000s, many an editor would take on a super promising manuscript and do the editorial work after acquisition. Today, it’s more common for an editor to request what is called a revise and re-submit—which places the onus back on the agent and author to gussy up the manuscript in hopes of an actual acquisition. 

This is a large time investment that may or may not result in a buy—and the subsequent earned commission, which is the only way an agent gets paid. 

Crowded Social Media Means Lower Agent Visibility

In 2006, I launched the blog Pub Rants. There were only two other literary agents blogging then. (Remember the amazing Miss Snark and her George Clooney crush? Such fond memories!) As one of the first agents to really spend hours educating aspiring writers and providing insider information for free on my blog, I was happy to see Pub Rants grow in popularity. At one point it was listed as the top 100 most influential blogs in the U.S. Glory days indeed. Blog Pub Rants = Visibility. These days, Facebook, Twitter, Instagram, and TikTok are crowded with social-media savvy agents and editors. That makes it much harder for agents to create visibility for their brands or stand out and land the hot projects.

The Marketing/Publicity Agent Hat

In today’s publishing landscape, agents have to do so much more marketing/publicity management to optimize client success. This limits the number of clients an agent can take on and work with successfully. Since agenting is commission-based, fewer clients means fewer sales, and that can impact an agent’s earning potential. 

The Taskmaster That Is Email

The sheer number of emails an agent fields in a day is impressive. For me, three hours minimum just reading, responding, handling everyday agenting tasks. Then I take a deep breath and dive into the actual to-do list. Three hundred emails is a light day. Dedicating so many hours to this necessary business task impacts how many hours are available for other aspects of agenting. When I started my career, email was certainly around, but it was used secondary to a phone call, and when it was used, editors would often email once a week with a summary round up. The pace of business is simply faster now with immediate responses often necessary. Not to mention editors of the current generation who are comfortable with the immediacy of email communication. There is no going backward, but email volume does make agenting harder in terms of a daily workload. 

Going Indie

Authors might start in the traditional publishing realm and then move indie—which eliminates a source of income for the agent. As most folks know, I’m hugely supportive of authors and indie publishing, but the loss of talent to the indie sphere does impact an agency’s bottom line and makes an agenting career more difficult to sustain. 

Publisher Payment Mandate

In the early 2000s, every contract I negotiated specified advance payments in halves: half on signing and half on delivery and acceptance of the manuscript. An agent earns the commission at the same time a client is paid. Publishers are now citing “corporate mandates” that payments must be structured in four or five installments—and some of those payments aren’t coming in until after publication…which makes it no longer an “advance,” but that’s a topic for another day. Not only does this structure impact an author’s financial well-being, it impacts an agent’s ability to earn a living. Imagine negotiating a contract today and knowing that a portion of your commission won’t be paid for two years. Yep. A get-rich-quick path agenting is not. 

The Great Contract Slow Down

Publishing houses need to double their contracts departments. Most of them have two or maybe three people total for the hundreds of contracts they do in a year. Back in the day, I’d wrap a contract in eight weeks tops. Today, if the first draft arrives within four months, it’s a win. And then the agent still needs to review and negotiate it, all before the author signs. Six months is the new norm to fully executed. So add that into the agent’s earning timeline along with payment structures in fourths and fifths. The real question is, just how is an agent earning a living?

The Great Publishing Contraction

Just this week, news hit that Hachette is buying Workman. Yet another independent publishing house bites the dust. Consolidation of pub houses = limited submission options. Limited submission options = titles less likely to be acquired. Titles less likely to be acquired = less revenue for the author and the agent. This alone makes agenting a harder career. 

The Great Submission Influx

Spend a little time on Twitter. Just a quick lurk will reveal that editors are drowning in the number of submissions they are receiving since more agents are submitting material. When I started agenting, I’d receive almost all editor responses within four weeks. Today, months is not unusual, and the number of no-editor-responses has risen significantly. Slow or no editor response = manuscript less likely to be acquired. Manuscript less likely to be acquired = reduced number of agent deals. Reduced number of agent deals = lower commission earning. Lower commission earning = harder to attain agent career success.

The Death of Editor Autonomy

Back in the day, individual editors had more autonomy to acquire a work/author. They connected with their boss, and that one person said yay or nay. In today’s world, a project submitted to a publishing house has to go to second reads, then editorial board, and then it has to run the gauntlet with sales and marketing for the final verdict. It actually feels like a little miracle any time a book sells. 

Blockbuster Mentality

In the early 2000s, it was understood that any newly launched author might need space and time to grow. Historically, authors weren’t expected to conjure bestsellers straight out of the gate, but to build their writing skills and audience over time as they developed their craft. Now, if a debut doesn’t do well, it is extremely hard to get the author a second chance. This is compounded ten-fold if the initial deal had a high advance. That means the agent must work extra hard to relaunch that client and will again face a low return on the hours they invest.

The Death of The Mass-Market Format

Back in the day, so many agents got their start representing authors in romance, mystery, and urban fantasy—all genres traditionally launched in the mass-market format. Fantastic glory days were when I would sell in a debut romance author for six figures. Today, with the death of the mass-market format, a whole swath of a viable market and its associated earnings disappeared for agents. The replacement ebook edition has not enjoyed the same robust earnings impact.

The Change That Hasn’t Happened

Publishers, despite emphasis on social change in the last couple of years, have not expanded their readership outreach or marketing to reflect the current cultural landscape. This continues to mean fewer opportunities for agents and authors of Color. This should be the one area where it’s better for the agents of today, and it’s not. 

So Magic 8-Ball, is agenting harder today than it was twenty years ago?

Answer: Without a doubt. 

Photo by Tara Winstead from Pexels

Hey, The Publisher Might Need It Again. Someday.

by Kristin Nelson

Like your grandmother who couldn’t get rid of that semi-broken toaster because she might need it again someday, publishers have a surprising number of obsolete and defunct clauses hanging out in their publishing contracts.  Most just elicit a chuckle, but at least one can greatly impact an author’s earnings.

The publishing landscape has shifted so radically in the last decade, especially with the rise of ebooks and downloadable audio. Publishing contracts should shift to match. But like your Depression-era grandmother, publishers are loath to get rid of old clauses they’ve had for decades—even though the publisher will not invoke that clause in any foreseeable future I can imagine. Most of these clauses hang out in the subrights section of a publishing agreement. 

My favorite? The publisher’s right to sublicense electronic book rights. Back in 2002, when I first started in the biz, there was a scrappy little electronic publisher called Rosetta Books. Although hard to believe, in those early days right before the electronic shift, some publishers did indeed sublicense electronic book rights to this third-party publisher. In today’s landscape, there isn’t a publisher on the planet who would sublicense electronic rights when such a major chunk of their own profit comes from sales of this format. Why would they share? And yet, if you look at the sublicense section of our pub agreement, the publisher still has the right to sublicense this format to a third party (though we as an agency add “by author approval”). But hey, the publisher might need it again someday, right? So there it stays. 

Also going the way of the dinosaur (sadly, in my opinion) is First Serial. In short, first serial is the publisher’s right to license an excerpt from a novel to a major newspaper, magazine, or other outlet. Think back to when Cosmopolitan or GQ featured up-and-coming authors by printing a chapter or two of their forthcoming novels. But now so many magazines have disappeared (or gone solely online). With that, publishers shifted from licensing first serial to simply allowing an approved excerpt to be posted on top sites as a publicity push. That means no licensing fee. Yet lo and behold, there in the subrights section of a pub agreement is the first-serial clause with a 90/10 split in the author’s favor. (As an aside, you’ll also see a publisher’s right to sublicense mass-market rights—something I’ve never seen a publisher do in twenty years of agenting. But hey, might happen someday, right?)

But the one legacy clause that can bite the author in the you-know-what is the short-print-run clause. So be on the look out for it. What does short print run mean? Originally, after a publisher launched the initial print run into the world (which could be around 5,000 or 10,000 copies or more), it was expensive for a publisher to order a “short” print run, like 500 copies to ensure the title remained in-stock for buyers. Now with print-technology shifts (i.e., print-on-demand), the cost remains fairly static—even for a small print run. The clause originally allowed the publisher to reduce the royalty to the author for said short print run. But today, why should the author have to accept a lesser royalty rate when the publisher did not foot an additional expense? Right. They shouldn’t. 

Most publishers have removed that clause (finally acknowledging it no longer applies), but occasionally I spot that kind of language in a contract and it needs to be handled.

Also, if you missed this news, the Authors Guild made its model book contract public for anyone to read and access. So happy contract reading. 

Photo by 幻影 3D from Pexels

Publishing House Mergers: A Non-Love Story

by Kristin Nelson

As a demographic, veteran literary agents are partial to opening sentences that begin with “back in the day.” Nothing signals “old” more effectively than that phrase. It implies that the good ol’ days were somehow better. The reality is that we veterans probably just have selective memory and there is no such thing as good ol’ days. However, in the case of the great publishing-house contraction that is unfolding, I might be in danger of embracing the notion that “back in the day” truly was better. 

News just hit that Newscorp is buying Houghton Mifflin Harcourt. For those not super familiar with the various corporate umbrellas of publishing, Newscorp owns HarperCollins/Harlequin so buying HMH will significantly expand the HarperCollins footprint. In November 2020, news dropped that Penguin Random House (already the biggest publisher) is buying Simon & Schuster—which makes the biggest publisher even bigger. 

Well, back in the day (tongue firmly in cheek) when I first started agenting, I distinctly remember having conversations with then-twenty-year veteran agents who had fond memories of the early 1990s, when more than 300 separate and individual publishing outlets were available for client submission. That number kind of blew my mind. Many of the imprints we now associate with, say, Random House used to be private companies that have since been acquired and folded into the parent company. Macmillan is another excellent example. After all, Farrar, Straus and Giroux, St. Martin’s Press, Henry Holt & Co, and even Tor used to be individual companies before they were bought up to become part of what we now know of as Macmillan. 

By 2022, we will be down to The Big 4 (Penguin Random House, Hachette, Macmillan, and Harpercollins) plus a smattering of some mid-size but growing independents. And that’s it. 

This contraction significantly impacts writers an authors, and here’s why:

  • Merging companies always declare that the houses will be run separately. This was certainly the case when Random House bought Penguin more than five years ago. Now these “separate publishers” exist under the same roof, use the same publishing contract, and operate under merged accounting and royalty systems. It is, in essence, almost like one house even though agents can still submit separately.
  • When publishers merge, there are often new mandates regarding how those houses will participate in auctions and submit bids. Some houses stipulate that imprints can no longer bid against each other. So if several imprints are interested in acquiring a project, they communicate and form a “house bid” (which is where all imprints propose one bid to submit in the auction, and if it is the winning bid, then the author can choose which editor/imprint to work with). This removes competition from the auction and lowers advances, which translates to less money for the author.
  • The merging of publishers results in the must-acquire-blockbusters-only mentality. Tighter budgets means fewer books will be acquired, which makes editors less likely to take chances on unique, creative voices—authors with talent who might not break out until their fourth or fifth novel. In other words, there is less focus on building an author and more focus on acquiring the obvious “big” book—which limits the diversity of unique stories in the world.
  • Contraction squeezes out the mid-list author—the author who’s not a blockbuster but whose sales might be humming along nicely. How? Because it makes the publisher less likely to pick up their option material. This precludes the possibility that a mid-list author’s third or fourth book might have been the one to break out. Not to mention, if the agent must shop the author anew, the current house (and all those imprints) are off the submit list. That equals fewer outlets where an agent can place that author and relaunch that author’s career.
  • Contraction eliminates editorial positions. Smaller staff equals fewer editors equals less diversity and narrower taste in what gets acquired. Also, smaller staff equals fewer editors equals those editors getting way more submissions from agents. Editors are already strapped for reading time and inundated with submitted manuscripts. The sheer volume makes it hard for any debut project to stand out in the crush—reducing a new writer’s chances of getting a foot in the door.
  • Contraction equals less-author-friendly publishing contracts. Fewer houses at which to place a client means publishers have the upper hand when it comes to dictating the terms, and agents have less negotiation leverage. 

This list could go on and on, so these are just a few reasons why I’m not excited by the currently unfolding mergers. Publishing is a tough business. Publishers feel pressured to grow so as to create greater profits and stronger bottom lines and to compete against other behemoths such as Amazon. I get it, but I don’t love it. 

Back in the day, there were dozens of terrific outlets at which to place a new client, to reinvent and reignite a mid-list author, or even to move a big client if needed. I am waxing nostalgic for those good ol’ days. 

Creative Commons Photo Credit: Images Money

A Story Hidden in the Data

by Kristin Nelson

On October 15, Publishers Lunch sent out their daily email blast. In it, they rounded up the pre-sales happening before the virtual Frankfurt Book Fair and included this chart, which spotlights the surge in debut-fiction sales. To quote from the article: “As this chart makes clear, the 59 reports in the measured period are almost twice the average number of debut fiction sales from recent years.”

In a nutshell, the number of book deals for debut authors is up in a big way. Sounds pretty fantastic. Publishers are buying more debut authors during Covid than they did in 2019 or 2018. Any news that publishers are buying lots more fiction is good news, in my opinion.

But there’s also another story hidden in this data, one that’s not all rainbows and sunshine for already published authors. When publishers are buying more of one thing, they’re buying less of something else. In this case, that “something else” is most likely option-material projects from current authors who find themselves firmly on what we agents call the mid-list.

A mid-list author is an author who has a book (or several books) published and has decent sales, but none of their books have become a breakout—that is, we wouldn’t call sales for any one of their books phenomenal. A mid-list author can have a long and terrific career, publishing multiple books and maintaining solid sales track records. Historically, publishers have continued to buy new work from mid-list authors; sometimes, a mid-list author can publish four or five books, and it’s number six that breaks and catapults them into superstar standing in their publisher’s eyes. And then there are a lot of mid-list authors who publish three books, maybe five books, don’t break out, and the publisher decides not to pick up the option for the author’s next work. Suddenly, that author is contract-less.

That’s the hidden story in this chart from Publishers Lunch. Debut buys might be up because mid-list option buys are down. Anecdotally, this is what I’m hearing from quite a few other agents, as we do all like to chat with each other. What does this mean for agents in 2021? We’ll potentially be doing a lot of client career strategizing for the next six to twelve months as we position anew our mid-list authors. And we might be signing more debut authors as well. So check out our submission guidelines and keep us in mind for your next project!

Note: Only Publishers Marketplace subscribers can potentially access the full news story.

Creative Commons Photo Credit: winnifredxoxo

What to Consider When Looking for an Agent

by Quressa Robinson

Many of you are probably querying or preparing to query. Maybe you’re between agents. Whatever the case, I wanted to give a bit of an overview of the things you should keep in mind as your writing career progresses. Much like any relationship, finding the right agent, editor, publisher, etc., can be hit or miss. Everyone has the best intentions and hopes things will work out, but no one can predict the future. We enter into what we hope will be longterm partnerships after a phone call and a series of questions, questions that can never address every possible scenario. Sometimes, the partnership just doesn’t work, which is fairly common in publishing. Regardless, here are some things to consider.

Editorial vs. Non-Editorial Agent. At this point most, if not all, agents are editorial. It has become a significant requirement that agents polish clients’ manuscripts before taking them out on submission. Still, there are a variety of editorial styles. Some agents just edit the first 50 to 100 pages and then include big-picture notes. Some do extensive line and developmental editing and also include an edit letter. Some may only do an edit letter. You can ask an agent what their editing style is, but their answer won’t really matter until you know what style works best for you. Try to get a variety of peer edits in various styles. If one works better for you than another, you know exactly what you’re looking for. If they all work, excellent!

Brainstorming/Concept Collaboration. How involved in the creative process would you like your agent to be? When we go out on sub, I have my clients send me five ideas for their next project. I then give them feedback and tell them which idea(s) make the most sense to pursue based on the market and what editors have told me they’re looking for. My help in walking through a concept is one of the reasons my clients chose me as their agent. Is this something you would need as well? Would you also want feedback as you draft—say, on the first 50 pages so you know you are headed in the right direction? If so, then ask potential agents if this is one of their strengths.

Career Management. In addition to helping with concept building and brainstorming, some agents also give career-management advice. This is helpful if you want to switch gears, perhaps moving from adult to YA or vice versa. An agent can guide you through that career transition, which might include rebranding you as an author or launching you under a new pen name.

Negotiations. How does your agent/agency negotiate? You don’t want to work with someone who is too soft and may push back only lightly. But you also might be turned off by someone who is too aggressive. It is fair to ask an agent what kinds of deal and contract terms they might fight for on your behalf and why. You might not care as long as they can get you a solid book deal, but negotiation is a huge part of what an agent does, so it never hurts to be aware of how your potential agent handles it.

Personality. Lastly, is personality important to you? What kind of personality are you looking for in an agent? Do you want someone friendly? Personable? Is it okay if they only contact you when necessary? Do you want someone patient who will answer all your questions no matter how many you have or how often you ask? Do you want a hand-holder? A shark? That’s a fair thing to want to discern. And agents might not know themselves where they fall. Reach out to their clients. Even if you are just querying and don’t have an offer or rep, you might be able to piece together some clues based on what clients say about their agents online or in the acknowledgments of their books.

Now that you know some agent-seeking basics, you can research confidently. There is still no guarantee that you’ll find the perfect fit for your entire career, but this will certainly help you figure out what you really want at this early stage.

Good luck!

Creative Commons Credit: Apichart Meesri

Coronavirus & U.S. Publishing

by Kristin Nelson

I hope when this article hits your screen, you are safe and healthy while sheltering at home. If you are in the medical profession, I’m sending extra-warm health karma your way. You are on the front lines, and we here at NLA appreciate all you do. My mom is almost 80 now and long retired, but she was an RN. I know exactly what kinds of sacrifices you and your family are making right now.

As a way to jump into this month’s article, I re-read my February column. The words “and may become a global threat” have sadly come to fruition. In the last two weeks, our world has shifted on its axis. 

We here at the Denver office implemented work-from-home over nineteen days ago, so all of us are luckily sane and virus-free. As half our company already works remotely and all our main processes (including CRM and accounting) are cloud-based, we have seen very little disruption in our work flow. The agent team IMs every day, and we’ve been doing weekly video Chime meetings for the last four years, so it feels like business as usual for us. Where we work literally does not matter, although we all miss laughter and shared coffee.

Publishing as an industry can maintain some stability in this work-remotely world. I can report the following:

  • Contracts-in-process are closing in about the same amount of time as they were closing previously.
  • Payments and royalties have not been disrupted as almost all publishers pay via ACH.
  • Foreign deals are still happening, but they do feel a little slower.
  • Film/TV options are occurring, despite news of major agencies doing pay cutbacks and furloughs. I had two offers come in just this week.
  • NLA agents are submitting projects, and editors assure us they are eager to read. They have lots of time to read.

The publishing picture is currently stable, but I also want to speak to the reality of having physical stores nationwide shut down for weeks on end. I expect much lower physical print runs in the months to come. Recent releases saw much sharper drop-off in sales than what would have been normal. Although publishers’ marketing and publicity teams are devising alternative strategies, if households are strapped tighter with a layoff, etc., book sales will suffer. That translates to editorial boards being more discerning on what is acquired and definitely more conservative in advances offered. 

I anticipate a tightening across the board. Stay inside. Stay well.

Recent news articles:

Publishers Struggle With When and How to Move Pub Dates

HMH Reduces Salaries

Paradigm Layoffs

UTA Cuts Salaries

Creative Commons Photo Credit: Nenad Stojkovic

How #MeToo Movement Impacts All Authors

by Kristin Nelson

For NLA’s March newsletter I wrote this article but hadn’t had a chance to post on the blog. Then PW recently ran this article on 4/27/2018 about how Publishers are increasingly inserting language into their contracts that allows them to terminate based on an author’s behavior. 

In further analysis and examination, I truly wonder if this is just a “change in market conditions” masquerading as a morality clause. 2018 is going to be an interesting year for contract negotiation!

AGENT KRISTIN’S ORIGINAL NEWSLETTER ARTICLE.

In October 2017, the #MeToo hashtag went viral on Twitter. Thousands of women shared their stories of sexual harassment, misconduct, and injustice in the workplace. The momentum began with the allegations against film titan Harvey Weinstein and then morphed into movements across other industries.

It hit publishing in a big way in February 2018 with Anne Ursu’s  bombshell of an article on Medium about sexual harassment in the children’s book industry.

It engendered a lot of conversations here at NLA, as I imagine it did for a lot of authors out there. But I wonder how many authors realized that the #MeToo movement would directly impact them in one very specific and unexpected way: in their contracts.

It was no surprise to me when we received a Penguin Random House contract recently, and lo and behold, there was new language in clause 7.c, which deals with publication. There is a new “morality” clause that cites that if the author’s reputation materially changes, such changes could be cause for termination of the publishing agreement.

Every non-author-friendly clause in publishing contracts is there because of some other author’s previous bad behavior. But in general, I don’t subscribe to the philosophy that NLA clients have to contractually pay for the mistakes of others.

Personally, I fully understand why PRH wants to add this language given recent current events. I certainly support the intention! As an agency, though, we are going to negotiate this clause to be more fair for an author who isn’t guilty until proven innocent.

My sense is that PRH will not be alone in amending boilerplate language. We’ve got several other agreements coming our way in the next two weeks. We’ll definitely be looking for the addition of these types of morality clauses.

Creative Commons Photo Credit: Luke Hoagland

Article 4: Negotiation Tactics of Good Agents

by Kristin Nelson

As featured in our April newsletter, an agent’s most important skill is the ability to negotiate well on behalf of the author client. Authors hire agents to protect their business interests in publishing. This is why a literary agent has a job.

Simply put, good agents do good deals on behalf of their authors.

So let’s discuss what I mean by “good” in terms of a deal and how that can be defined. Most writers might assume I’m talking about the level of the advance—as if how the negotiated amount is the only barometer of a decent deal. In reality I’m talking about every facet of the deal offer and the fairness and equability of the final contract the author signs.

Think of publishing as like a marriage or long-term relationship. It begins in love and happiness and for a lot of authors, the love affair lasts their whole career. But there is always the possibility of it ending in conflict and, in some cases, animosity. The point of the contract is to take the emotion out of the relationship and to clearly spell out the expectations of each party. This is why it’s imperative for an agent to negotiate a good deal and the best terms in a contract.

So just what are the negotiating tactics of good agents?

* Good Agents negotiate the advance.

A Publisher’s opening offer is not the highest advance the publisher is actually willing to give. Good agents know and understand this. It’s a bartering tool, the first give-and-take for what an agent is willing to grant and for what the publisher is willing to give in exchange. There are a ton of strategies involved here. This is just to spotlight one tactic.

* Good Agents only grant rights that are commensurate with the advance level being offered. 

If the advance is low, the agent will restrict the rights being offered to a publisher. A negotiation tool for getting a higher advance may be the willingness to offer World English or World rights in exchange for more monies up front.

Cliff notes for the types of publishing grants:

North American rights = publisher only has the grant of rights to sell the title in the US, Canada, and US territories such as the Philippines.

World English rights = publisher only has the grant of rights to sell the title in the English language around the world, including UK, Australia, New Zealand.

World rights = publisher has the grant of rights to sell the title in the English language around the world as well as to sell the licenses to have the title translated into other languages.

* Good Agents only sell World English or World rights if the subrights splits are standard. Otherwise, good agents restrict the deal to North American.

Standard splits, as defined by the Big 5 publishers, are 80% to author/20% to publisher for the UK and 75% to author/25% to publisher for translation. Some publishers (usually the smaller ones) only want to offer a 50/50 split, which is significantly less advantageous to the author than if his or her agent reserved World rights to license separately in each territory. (Remember: the author would then have to pay the agent commission on top of not receiving the standard 75% or 80% split. That’s definitely a reduction to the author’s bottom line.) I’ve also seen 60/40 (in author’s favor) offered.

* Good Agents don’t sell the publisher world translation rights or audio without reversion clauses.

If the publisher does not exploit or actively pursue the rights, the author is stuck and cannot earn money on the licensing of these potentially lucrative rights. Since part of an agent’s job is to help authors earn a living from writing, unexploited rights is untapped money potential. Publishers love “warehousing” rights just in case, but reversion clauses force publishers to actively try and license those rights or lose the ability to do so.

* Good Agents only sell rights or do deals with publishing houses that offer standard royalties or the equivalent (if royalties are based on net, which is the case for a lot of smaller publishers).

* Good Agents pre-negotiate “tricky” contract clauses in the deal memo stage so as to completely eliminate the issue at contract stage.

A favorite publishing house tactic, once the offer is accepted and contract generated, is to reply with “that should have been negotiated during the deal memo stage” as a way to say “no” to a requested change. To avoid this, actual clause language often has to be negotiated upfront with the editor during the deal negotiation. (“Tricky” clauses include the non-compete clause, the option on next book clause, the out-of-print clause, and many more).

It’s an icky strategy, as it’s not fair to the editor, who is often placed in an awkward situation. After all, they know deal points, not contract language. Sadly, this is becoming more and more standard.

* Good Agents have deal memo boilerplates that are unique to each house (and these deal memos are two, sometimes three pages long) 

Rather than use the publisher-generated deal points, which usually only cover the basics in an eight-point list and nothing else. Agency-generated deal memos cover all the tricky bits for that specific publisher, since contracts vary greatly from house to house.

* Good Agents have the editor confirm deal points memo via email before officially closing the deal.

This just came up for me recently where a deal was closed and went to contract stage, but the contracts department didn’t input the royalty escalator agreed upon during the deal negotiation. Because I had the final deal memo along with the editor’s confirmation email, it ended up being a simple non-issue, and the contract was changed. Without that confirmation, the author might have been stuck with lesser royalty structure.

Good agents could write a book on how to actively negotiate a publishing deal and contract. There are so many facets this series of articles can only touch on the highlights.

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The genesis: In January 2015, Backspace co-founder Karen Dionne and I had a conversation in which she mentioned that writers sometimes want representation so badly they are willing to sign with an average or even a below-average agent. Trust me, not all agents are equal. I replied, “Well, writers don’t know what they don’t know.”

In that moment, a lightbulb went on for both of us. Writers don’t know what a good agent does. How could you if (1) you’ve never experienced it and (2) you’ve only ever had one agent and no way to assess just how strong he or she might be at the job?

Thus, this series of articles was born.

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Archive:

February 2015 Newsletter – Article #1: Agent As Savvy Business Manager

March 2015 Newsletter – Article #2: Commanding Authority: An Agent’s Negotiation Edge.

April 2015 Newsletter – Article #3: Fearless Negotiation: An Agent’s Most Important Role for an Author

Article 4: A Story of Three Authors (A Cautionary Tale) by Karen Dionne

by Kristin Nelson

In a perfect world, every literary agent would be a fearless negotiator, working tirelessly to get the best possible book deals for his or her clients. But the world isn’t perfect. And sometimes an author’s career goes off the rails because their agent doesn’t have the knowledge, skills, or tenacity necessary to negotiate well on the author’s behalf.

Author #1 had a six-figure offer from a major publisher for the first three books of his self-published middle-grade series. He also had no agent. The publisher recommended several, and the author signed with one. Sadly, the agent did not negotiate better contract terms. This meant the author now had to give the agent 15% of the exact same six-figure deal he’d set up himself.

The author hoped the agent would earn his commission going forward by advocating for the book during the publishing process. But in time, the author realized his agent wasn’t doing anything he wasn’t already doing himself. He terminated the relationship and negotiated the next three-book deal without an agent.

As the time neared for the next contract, this author still felt he could get a better deal if a savvy agent negotiated on his behalf. He interviewed carefully and signed with an agent with an excellent reputation who was also a fan of the author’s work. The agent soon learned what the publisher hadn’t yet told the author: sales were soft, and there wasn’t going to be a third offer.

The agent pitched a new series, but the publisher wasn’t interested. Neither were the other publishers the agent submitted to because of the author’s declining sales record. He and the agent parted ways, and the author’s dream of supporting his family with his writing was over.

This author is convinced the outcome would have been different if his first agent had been a tougher negotiator—not only in regard to the size of the advance, but also in the thousand-and-one ways his agent could have run interference with the publisher to ensure that the author’s books got the in-house attention they needed and deserved. This agent may have been afraid to rock the boat, but it was the author’s ship that sank.

Author #2 was with an agent who always sold world and film rights to the publisher. Every client, every deal, without exception. Not every agency has its own foreign-rights department, nor does every agency partner with a foreign-rights co-agent in order to fully serve their clients.

In time, the author realized they had a problem. This author’s books were doing very well in the territories where they were available, but the publisher’s foreign-rights department had only sold them into a handful, and nothing was happening with film. When the author discussed the situation with their editor, the editor recommended the author get another agent—even though this meant the editor would have to work with an agent who was a tougher negotiator.

Not only did the new agent sell the film option for the author’s latest book, but the agent also made sure it was a “complete” offer, meaning that a producer, director, and screenwriter were committed to the project before recommending the deal. Previous film offers that didn’t have all these components in place were rejected because this agent was a tough negotiator who wasn’t afraid to hold the line.

Author #3’s agent got him a two-book deal with a well-known mass-market-paperback publisher. The contract included joint accounting. If you’ve been reading Kristin’s “Think Like an Agent” article series, you know that joint accounting can have negative consequences, as this author was about to find out.

When his first book published, it sold reasonably well. Meanwhile, the author was busy writing the second. To his surprise, the publisher rejected the book. The author wrote another, which the publisher also rejected. The author wrote a third book, which the publisher rejected when the book was half finished.

Are you keeping count? Two-and-a-half books written over who knows how many years in a valiant effort to deliver the second book of his contract. Meanwhile, because these two contracted-for books were irrevocably linked due to joint accounting, even though the first book was selling well, during all that time, the author didn’t see another dime.

If you’re wondering where the author’s agent was through all of this, so was I. Why didn’t the agent run interference with the publisher? Why was this author forced to spend years writing multiple books without getting paid for them? Surely there was something a savvy agent could have done.

The author wrote a fourth book, which the publisher finally accepted, only to drop the book after Borders went bankrupt. Eventually the author got the rights back to his books and self-published these novels along with the ones his publisher had rejected. All of his books have been very well received by readers, and the author is now with a small publisher with an excellent reputation. Most important, the author feels that his career is finally on track.

Admittedly, much of what determines the success or failure of an author’s career is beyond the author’s and the agent’s control. But holding out for an agent who is a fearless negotiator can be the author’s best defense in a challenging, uncertain business.

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Karen Dionne is an internationally published thriller author, co-founder of the online writers discussion forum Backspace, and organizer of the Salt Cay Writers Retreat and the Neverending Online Backspace Writers Conference. She is represented by Jeff Kleinman of Folio Literary Management. This panel discussion along with the full Backspace Writers Conference video archives are available exclusively to Backspace subscribers and online conference registrants. 

Worth The Conference Registration Cost

by Kristin Nelson

Last month I gave a webinar on how Digital is rapidly transforming publishing.

I love giving this workshop at conferences every chance I get because most writers are completely confused by the stories that are making today’s headlines and how that impacts writers. It’s my chance to really explain all that is going on.

Attendees always walk away telling me that my workshop alone was worth their conference registration cost. (Of course they could just be humoring me…) LOL

Still, it makes me happy. I always want aspiring writers to be informed as much as possible.

We are doing something unique this month and making the recording available for streaming.