Pub Rants

Category: agents

So just this week, we received an outstanding Australian royalty statement for one of our clients that had been missing. Because we actually track, review, and audit our statements, even foreign ones (and let me tell you what a nifty trick it is to do the Japanese statements…) we immediately spotted one rather large problem.

Oddly, there were no ebook sales listed anywhere on statement. Dating back since 2013. Not a single ebook sale in the last 2 years is a bit hard to believe, so we pinged the publisher.

Sure enough, the ebook ISBN wasn’t linked to this title in their accounting system. It was there but floating out in the ether with no title to attach to. Once it was appropriately linked, voila, almost $1000.00 was owed to the author.

And as my client so aptly replied to me, like finding loose change in the sofa!

Kind of. 😊

Even if the publisher controls the World Rights, we ask for the statements so we can review. Because I’m pretty certain that given the deluge of statements the internal publishing rights team receive, they aren’t paying super close attention.

Want to know how to audit royalty statements for yourself? We start you off easy by tackling U.S. royalty statements first. Our contracts and royalty guru Angie Hodapp is showing you how on July 30, 2015. Be a smart and savvy author. Auditing royalty statements. Only a couple slots left as there is a cap on attendance.

Photo credit: Branko Collin

This June, I taught a query workshop at Lighthouse Writers Workshop’s Lit Fest. Afterward, one participant approached and asked me to read a response letter she had received (not from me). She wanted to know if it was a “standard” rejection letter. I read it aloud and was a little chagrined to discover just how similar it was to the letter I had been using for years. I told her that yes, this was not a personal letter but a standard rejection. Two days later, I was chastised by an aspiring writer who said it was time for us to change our standard rejection letter. Obviously that poor person had received our letter multiple times.

But I took the chastisement to heart. It was time for a change. So I’m going to share with you, my newsletter readers, our standard rejection letter and explain why I chose the verbiage I did.

Dear INSERT WRITER’S NAME:

KN: I actually do input the writer’s name. This business is so impersonal (some agents don’t even respond at all if they aren’t interested in a query), but I always want writers to be acknowledged as human beings. Even though it takes longer to respond to queries.

Thank you so much for thinking of me for your query. I wish I could offer a more personalized response but on average, I receive 500+ email query letters a week.

KN: This is true. In fact, I receive way more than 500 queries a week. Recently I’ve been averaging about 100 to 150 email query letters a day. Don’t let these stats daunt you. If you are serious about your career, you’ll persevere. Know the odds, but give them only the weight of a side note. I have signed many a client after finding them in our query inbox.

Do know that every query letter and sample page is read, and even though your project is not right for me, it might be right for another agent so don’t give up!

KN: This is true. I actually read a lot of my own queries on a daily basis. However, when I travel or have a crazy day, Angie, Jamie, and Karrie jump in to help out. They have to. After just two days, the inbox grows unwieldy. I also really do mean the last line. I’ve passed on any number of queries for projects that weren’t right for me but that other agents loved and went on to represent and even sell. I can only champion what I feel passionate about. Not everything will be a good fit for me. 

I’m also sorry I have no agent recommendations to offer.

KN: I had to include this. We were receiving so many reply emails asking for a recommendation that it was taking too long to respond to every query twice. We had to preemptively make it clear that we could offer no more information. 

Good luck with all your publishing endeavors.

KN: Absolutely. My rejection letter to your query is only one little bump on your journey to becoming a published author. 

Sincerely,

Kristin Nelson

Q: Why does the opening character awakening scene of the HUNGER GAMES work when 99.9% of slush pile opening pages do not?

Wowza. With over 7000 people reached on Facebook and untold number of Twitter shares, I obviously hit some kind of nerve. We should entitle these last two Pub Rants blog entries: The Perils of Writing About Novel Openings with Characters Awakening.

So let’s talk about this some more.

I spotted a lot of comments where writers mentioned the opening of the HUNGER GAMES. Fair enough. So let’s take a look at that first paragraph and analyze why that waking up character opening works and 99.9% of what agents are seeing in the slush pile doesn’t.

When I wake up, the other side of the bed is cold. My fingers stretch out, seeking Prim’s warmth but finding only the rough canvas cover of the mattress. She must have had bad dreams and climbed in with our mother. Of course, she did. This is the day of the reaping.  (Copyright: Suzanne Collins, Hunger Games, Scholastic Press 2010)

1) Opening 2 sentences. The importance is not on the character awakening but to alert the reader to what is different from normal.

2) Third sentence. We know Prim is a child and that it’s fairly normal for her to have bad dreams. Right away, in the hands of the master writer, even though we as readers don’t know much else about the characters etc., we know that whatever their life is, easy it is not.

3) The reason for the bad dream. The Reaping. I don’t know about you but I finished the first paragraph with an instant question that I had to know more about. What is the reaping? And why would it cause a child to find comfort with her mother when normally she wouldn’t? It can’t be good. I’m compelled to read on.

So trust me when I tell you that the majority of character waking up novel openings we are seeing in the slush pile do not remotely achieve the narrative momentum achieved in just 5 sentences shown above. The opening scenes we are seeing is literally about a character waking up and not much else. Sometimes they’ll then go to the bathroom to look in the mirror (so as to describe what the character looks like to the reader).

I’m not pointing this out to ridicule beginning writers who may recognize they’ve done this. I’m pointing it out because it’s less about the action (waking up) then about the purpose for starting the novel there. Most slush pile submissions with this construct are not using the awakening character for a compelling purpose.

And thus why agents pass on sample pages with this construct 99.9% of the time.

And here are a couple of other things new writers should keep in mind:

1) Already established authors can get away with an opening that most beginning writers can’t. Why? Because their agent and editor already trust them as writers. Once that trust is earned, you can play with all kinds of constructs or break all kinds of rules and publishing will even embrace you for it.

2) Established authors are not held to the same rules as new writers. Fair? No. But it’s the bald truth. Established authors can dump back story, input too much exposition, or do other lazy writing tactics and their fans will simply forgive them.

If you are first-timer trying to break in, the length of forgiveness is short indeed.

Photo Credit: Vic

OBSERVATION: Beginning your novel with the main protagonist waking up in bed will have agents passing on the material 99.9% of the time.

Here’s why:

It’s an opening we see way too often (not sure why) and 99% of the time, this opening simply is not the best place to launch your story.

1) In general, this action in an opening scene is static (read: uninteresting). It’s a struggle to make it interesting enough to merit beginning your novel here.

2) I’m going to venture a guess that a lot of newer writers don’t know where to begin their story so starting here seems like a safe place.

3) Just trust me on this, there is a better place to begin your awesome story. My suggestion? Connect back to what made you excited to write this novel in the first place and see if you can’t tap into that energy and channel it into your opening scene. Chances are good, you won’t then choose to begin your story with your main character waking up.

And LOL, wouldn’t this make a fun writing challenge? Have already successful, established authors participate and make it a requirement that their story has to begin with character awakening. Could be hilarious. Could be the first time we see a kick-ass opening with this construct.

Photo Credit: James Theophane, Creative Commons

Over the last decade, I really wish I had tracked how much money NLA has recovered by carefully auditing our royalty statements every accounting period. Because of some big errors found a couple of years ago, it’s probably to the tune of over $600,000 recovered at this point, and it wouldn’t surprise me if that total was actually more. Even now, nary an accounting period goes by that we don’t recover at least $500 to $3,000 owed to a client.

On rare occasions, we have even found errors in the Publisher’s favor—and yes, we do notify them to highlight the correction. Luckily, those have only amounted to several hundred dollars at any given time. And to be clear, Publishers aren’t being nefarious or deliberately cheating the author (with the exception of a few publishers, which will remain unnamed).

Most errors we catch are human errors. In other words, the Publisher’s in-house royalty management staff simply keyed incorrect information into their accounting system. Also, “accounting departments” at some mid-sized publishers and small presses are staffed by English majors. Mistakes will be made.

These mistakes need to be found and corrected and the monies paid to the author client. Here is the jaw-dropping fact: A good percentage of agents do not audit their clients’ royalty statements.

Let me repeat that. Even though authors hire literary agents to guide their careers and most importantly, manage their business publishing interests (royalties being a huge component of this), many agents do not actively audit or even read client royalty statements. This leaves authors to fend for themselves regarding reading and understanding their statements.

So for me, good literary agents audit royalty statements. When I was newer to this business, I did the time-consuming auditing and analysis myself, every accounting period, and shared my comments with my client. Every accounting period. I even hired a professional book royalty auditor to mentor and read behind me to assess my competence and capability. Then I hired and trained our amazing Contracts & Royalties Manager Angie Hodapp to handle this at NLA.

And Angie took it to a level that leaves me in awe every accounting period. I imagine our clients are often in awe as well when every six months, she sends a detailed letter with my comments as well as her analysis of the statement and what questions we had to track down and if extra monies are owed.

A lot of the larger agencies will have staff in-house to handle this (or I hope they do….I don’t actually know as I’ve not worked in a big agency), but I’m willing to guess that most of the smaller, boutique agencies don’t. This means that the author relies on his/her agent to analyze the statements.

So ask yourself. Is your agent doing this? If you don’t know, ask. It’s part of the agenting job. Recently, Angie has been giving workshops at local writing conferences to teach authors how to audit their own royalty statements. Even if your agent does this on your behalf, it’s not a bad idea to also be checking them. Human errors can happen on our end as well!

So with her permission, and worth its weight in gold, a handy list.

How to Audit Your Own Royalty Statements by Angie Hodapp

Keep an excel spreadsheet for each title, and add the following when each statement arrives:

• Track copies sold and royalty rates applied to each edition. Do the percentages match the contract?

• If you have a royalty escalator, make sure you’re watching units sold so you can see if the escalator is triggered at the right time.

• Track royalty earnings for each edition. Add them all up and subtract them from the advance. Make sure your math matches the math on the statement.

• Check for continuity from the last statement’s bottom line (ending balance) to the current statement’s starting balance.

• If the royalty is based on net receipts, then make sure the net amount received by Publisher is reported on the statement, along with number of copies sold. Do the division. How much is the publisher claiming to have received for each unit? Is it a reasonable amount based on the retail price?

• Look at the number of copies reported sold as “high discount” or “over discount” or “special sales.” Publishers love to sell most copies under these terms, which means smaller royalties for you. Make sure your contract limits the number of copies publishers can sell under these terms!

• Watch reserves. Your contract should specify how much the publisher can hold in reserves, and for how many accounting periods after initial publication. You can ask the publisher to release reserves once returns taper off. That’s more money passing through to you, or applying toward your advance.

• Watch returns. Publishers adjust reserves up and down from period to period based on actual and projected returns.

• Watch subrights licenses. Know the terms of all subrights deals, which may include audio, large print, book club (either a stock-buy or a special printing), or other special editions.

• Watch and track foreign right deals. If your publisher holds world rights and is actively selling your work into foreign territories, ask them each accounting period to give you:

—Details of any new foreign-rights deals, including: advance, royalties split, term of license, publication date or planned publication date, and reporting schedule. (Note that most, but not all, foreign publishers report annually, not bi-annually.)

—Copies of the licensing agreements. Even if they’re in languages you don’t understand, it’s within your best interests to have such things in your physical records.

—Note that foreign monies can take from a year to 18 months to pass through the publisher’s subrights department and show up on your statements.

If you want a more in-depth royalty statement auditing experience, join Angie for her upcoming Royalty Statements Auditing Workshop, scheduled for July 30, 2015.  This Webinar is open to the first twenty attendees to sign up.

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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

May 2015 Newsletter – Article #4: Negotiation Tactics of Good Agents

After I read Kristin’s June article in her “What Makes a Good Agent” series and learned that publishers’ royalty statements sometimes contain significant errors, I took an informal survey. I wanted to know how many of my author friends’ agents audit their statements, and how many of these authors also audit their own.

The authors are split between midlist authors and bestsellers. Almost all said they read their royalty statements carefully. But nearly half don’t audit their statements—mainly because they don’t know how.

Two of the 15 authors were reasonably certain their agents audited their royalty statements before sending them on, while only 3 of the 15 reported their agent took the initiative to help them understand them—suggesting this is a conversation agents and authors should be having more frequently.

Here are the questions and results:

  1. Does your agent actively audit royalty statements?

YES – 2

I THINK SO – 5

NO – 8

 

  1. Do you audit and/or read your own statements? 

YES – 6

READ ONLY – 7

NO – 2

 

  1. Do you know how? 

YES – 6

SOMEWHAT – 3

NO – 6

 

  1. Has your agent ever walked you through a statement? 

YES – 3

ON REQUEST – 2

NO – 10

Royalty statements are difficult to understand. Some of the authors who responded admit they “never learned how to read a royalty statement,”or they “read them, but have a hard time understanding what everything means.”

One author I surveyed believes auditing is the agent’s responsibility. “I don’t audit. That’s her job. If I had to, I’d get an accountant to do it. But I figure that’s why I have an agent. She would walk me through it if I wanted, but that’s one less piece of business I have to do.”

Others take a more active role. “I read my statements multiple times. First, just to review them and make sure everything looks right and complete. Then I go through them page by page and compare to the last statement to see if there is something wonky (good or bad), then I write up a memo to my agent with any questions or concerns, or if there is something odd. We then discuss.”

“I noticed in my last statement, there were line items for Returns for a couple of books that had been released years ago. That seemed illogical, so I asked my agent, and she passed the question on to my editor. Also, I know that a number of my books have been released as audio books as much as a year ago, but I have seen no accounting for sales of those. So I asked my agent, and she asked my editor. Nobody has explained it yet, but I have done payment estimates based on the statements, and our calculations match.” Not surprisingly, this last author adds, “Not only do I know how to read the statements, friends often ask me to interpret theirs.”

Sometimes authors who audit their statements find mistakes. “I once found a $700.00 error on my royalty statement from my publisher that I noticed after scouring the numbers. My publisher apologized and said it was obviously an error and quickly corrected it, but would he have noticed if I hadn’t looked carefully?”

“For two consecutive royalty periods, I had statements passed on to me from a publisher that had gone through the agency’s business department and past my agent that had a glaring error on the first page. Each time, it amounted to an error in my favor of mid four figures. One year the amount totaled approximately $11,000. This was not something anyone should have missed, and certainly not twice. The agent/agency did not catch the error, even after it happened the first time. I did, both times.”

“It’s important for authors to know that even if you have a representative you trust, nothing replaces arming yourself with all the knowledge you can,” my author friend Lauren Baratz-Logsted wisely says, who not coincidentally, zealously reads and audits her royalty statements. Thanks to Kristin’s article and her contract manager’s generous how-to, I’ll be doing the same.

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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 ConferenceShe is represented by Jeff Kleinman of Folio Literary Management. 

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

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 ConferenceShe 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. 

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

Of all the skills a literary agent is required to have, the most important is the ability to negotiate well on behalf of the author client. Authors hire agents to protect their business interests in publishing. In my mind, and other folks may disagree with me, all other skills are kind of moot without this one.

This is why a literary agent has a job.

To say this another way, your agent might be a great communicator or team builder, give great marketing feedback, have good relationships with editors, have good taste in picking projects (all wonderful skills to have), but if they aren’t also a good negotiator, then just how valuable are these other skills to you and your career? A good agent will have the complete skill set.

All this begs the question: How do you know if your agent is a good negotiator? Here’s how:

1.) Good agents negotiate all deals. Sounds simple enough. Doesn’t that always happen? Not necessarily. 

Good agents don’t accept the initial offer from the editor. There is always something that can be negotiated. A higher advance, a better escalator in the royalty break, two books instead of one, restricting the rights, holding or giving audio. The list goes on and on. I share with my authors the original offer and then the final offer before accepting. Does your agent? They should.

Good agents negotiate the deal even if an author brings the publisher offer to the agent. Where the offer comes from doesn’t matter. Every deal and every contract is negotiable. Always. There are no exceptions.

Good agents are willing to walk away from an offer if the terms aren’t favorable enough for the author. If you are interviewing agents, ask if that person has ever walked away from an offer and why. Every good agent will have a story.

Here’s mine. There is a small but well-known publisher that doesn’t include an actual out-of-print clause in their contract. Instead, they include a clause that says the Publisher will hold a meeting once a year and determine, in good faith, whether the rights should revert to the author.

Well, isn’t that nice and vague? Why have a contract at all then? Why don’t we just shake hands on a deal and the whole publishing endeavor and go from there?

In my view, the contract exists so that crucial items like this are clearly spelled out. After much back and forth, during which the publisher asked why I thought I was so special when the editor could cite dozens of other agents who had allowed their clients to sign the contract with this vague language (uh, why?), I counseled the author to walk away. Ultimately the author makes the final choice. It was devastating and super hard for the client, but said client did walk away. That publishing entity is now defunct.

Talk about dodging a bullet in the long run…

2.) Good contract negotiation takes time. Literally. 

Even with a basic boilerplate for my agency in place, most contracts take 6 to 12 weeks to negotiate fully. Every author is unique. Every deal is unique. So every contract negotiation is unique. There are many rounds of back and forth for the requested changes, as publishers are always introducing new clauses or making tweaks to their house contracts. In addition, there may be unique elements negotiated for your specific deal that necessitate changes to several contract clauses that won’t be true for any other author at that particular house.

The contract belongs to the author, so the author has a right to know all the details about what was negotiated on his/her behalf. When I complete a negotiation, I send on the final contract to the author along with the master redline that shows all the incorporated changes. I also send along the requested changes documentation with all my notes and responses from the publisher so the author can read the entire communication chain. They see what was given, what was let go, and why.  In ad nauseam detail.

The contract is legally binding, and you, the author, are going to sign it. Don’t you want to know and understand what your agent has negotiated on your behalf? If I were an author, I certainly would! I don’t share this info just to “be nice.” It’s rightfully yours.

Does your agent share these details with you? If not, why? Ask for it. Read your contract in its entirety. If there’s anything you don’t understand (and it’s OK if that’s the entire contract!), schedule a phone call with your agent to discuss.

It wouldn’t surprise me if the number is around 50% for agents who don’t fully understand a publishing contract or have the ability to explain the meaning and importance of the clauses there in detail.

Do you really want that person representing you?

If a new boilerplate from a publishing house is introduced, then it can take 6 to 9 months to get a new agency boilerplate in place that is reasonable for an author to sign. In the last 6 years, both HarperCollins and Macmillan introduced entirely new contracts. Rumor has it that later this year Random House and Penguin will merge their contract forms into a new Penguin Random House contract boilerplate. I haven’t seen it yet but it’s probably coming in the not-so-distant future.

Contracts turned around quickly or that take less time than what I’ve mentioned above = the agent is not negotiating or is not standing firm on key items until a compromise is found. And compromise can always be struck so both publisher and author are happy. But that takes time and several rounds of negotiation.

You don’t want agents pushing through a contract quickly simply because they need the money, or can’t be bothered, or don’t understand the clauses.

By the way, most agents are not lawyers (although some are). I’m not, nor do I think it absolutely necessary for an agent to also be a lawyer. An agent just has to be good at publishing contracts—which often necessitates thinking like a lawyer. None of the publishers’ in-house contracts managers I work with are lawyers either, and yet they do the negotiation. However, lawyers are often consulted on points of intellectual-property law if necessary.

By the way, lots of smaller agencies work with freelance professional contract managers (who once worked in-house for the big publishers) to assist in contract negotiation. This is a good thing, and I highly recommend it so that the author benefits from the contract manager’s savvy and gets a level of protection if the agent sucks at negotiation.

But it’s still essential for an agent to be a good negotiator. Why? Because it’s the agent who negotiates the initial offer (that’s what you’re paying them for!), not some hired contract professional. And often that necessitates some savvy pre-negotiating skills during the offer stage—before a contract is even generated. For authors further along in their careers, this is a given; they know it needs to be done. It’s not a maybe. And if your agent is not a good negotiator, you can see pretty clearly how that is going to impact your level of success and your longterm writing career. Your agent might not know how to do this.

Next month, Karen and I will tackle The Negotiating Tactics of Good Agents.

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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.

To prepare for this month’s topic, I watched a video from the 2011 Backspace Writers Conference in which Kristin, Scott Hoffman of Folio Literary Management, Suzie Townsend (then of Fineprint  Literary Management, now with New Leaf Literary), and Diana Fox of Fox Literary discussed the nuances of publishing contracts.

One of the things I learned is that publishers often change their contracts to give themselves more favorable terms. Agents who are paying attention pick up on the differences and understand the ramifications. Agents who aren’t, don’t.

As an example, the agents explained how a few year ago Simon & Schuster removed four sentences from the end of the rights reversion clause. These sentences defined the sales threshold, which states that rights will revert to the author if the number of sales drops under a specified amount. Removing these sentences meant that if the publisher also bought digital rights, the book would in effect never go out of print, and the publisher would own the rights to the work in perpetuity.

This created a furor among agents who were paying attention. But not every agent caught the change. Some even let their clients sign the contract, then had to negate that contract and start over again. And some didn’t catch the change at all, which left their authors with no possibility of ever getting the rights to these novels back.

I also learned that agents “geek out” over contracts, as one agent put it. It’s a good thing they do, because as I listened to these agents enthuse over the finer points of contract details, my eyes glazed over. Not that the panel wasn’t interesting and enlightening—it was. Rather, I quickly realized that the nuances of contracts were so not my thing—like signing up for a study course and finding out two weeks in that you have zero interest in the subject.

“I go over every contract with a fine-toothed comb,” Diana Fox said. She then writes a detailed memo and sends it to her contracts manager, who goes over the contract again. “If Random House puts a clause in their boilerplate, I’ll know it.”

I read my first contract carefully. All 11 legal-sized pages of fine print. Four times. I also asked my agent questions, because I wanted to be sure I understood what I was signing.

But agents drill down deeper. An author might not even see the earliest version of the contract their publisher offers. “There are very few things publishers aren’t willing to negotiate on,” Scott Hoffman told the audience. “Some are deal-breakers, and it’s up to the agent and author to decide if a contract clause is in the author’s interest.”

So thank God for agents who geek out over foreign rights, audio rights, boilerplate contracts, and out of print clauses. Good agents watch out for their clients in ways authors don’t even know.

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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.