Pub Rants

Category: Agents/Agenting

Agenting 101 Revisited: Author Warranties

STATUS: On Friday it was colder in Denver than most cities in Alaska. Today it’s 60 degrees and gorgeous. But never fear, it’s supposed to snow again on Friday—therefore not breaking our snow streak.

What’s playing on the iPod right now? IT’S MY LIFE by Talk Talk

All publishing contracts have a clause that basically asks the author if the work is original and whether the author has the right to enter in this agreement.

That’s reasonable.

The clause will read something like this:

“The Author warrants, represents and covenants: that the Author owns all rights and licenses herein conveyed and has the full and sole right and authority to convey all such rights and perform its obligations hereunder; that the work is original with the Author in all respects, except for any portion which has been previously published and is identified as such; that, with respect to works of nonfiction, all statements contained in the Work as published are true or based on reasonable research for accuracy: that the Work is not in the public domain and is or may be validly copyrighted or registered for copyright in the United States and…”

And the clause will go on to make sure the Author hasn’t defamed anyone or invaded privacy. That there is no litigation pending or a claim outstanding. That the work won’t cause harm etc.

You can see where Mr. Frey ran into some difficulties with lines 5 and 6. Ahem.

To me, these are all valid considerations and the Publisher has the right to ask an author to attest to the above and sign his or her name to it in agreement.

What I don’t like, as you well know, is when the Publishers sneaks a little phrase in that reads something like this, “that the Work will be the Author’s next book-length work (whether under the Author’s own name or otherwise)”

This usually comes in line 3 after “rights and perform its obligations hereunder.”

Basically the Publisher is asking that the author warrant that this Work will be his or her next published work.

You know my take. That’s none of the Publisher’s business. The real issue is that the Publisher doesn’t want the work they’re buying to have to compete with a myriad of other titles by this author upon publication.

That’s not a true warranty. That’s a no-compete clause and it irks me to have this little sentence buried in with all the other elements of the Warranty clause that are actually relevant and justifiable by the Publisher.

Not to mention, embedding this phrasing is a recent occurrence (at least for the contracts I’ve been seeing).

So my advice is, if you are going it alone, to read carefully. There are some changes we as agents ask for when negotiating and dealing with the warranty and indemnity clauses but as you can guess, these are the two clauses that publishers show most reluctance to negotiate since the point of them is to protect the publisher. Yet, if you don’t deal with this pesky little sentence, you may find your career a little constrained.

Agenting 101 Revisited: No-Compete

STATUS: It’s colder in Denver today than in most of the cities in Alaska. That’s just wrong.

What’s playing on the iPod right now? SWEET LOVE by Anita Baker

Get out your notebooks. I was a little too cryptic earlier this week. So let’s talk about the no-compete clause and the Author’s Warranties in publishing contracts.

A little background. Publishers like to include a little clause that is usually called something like “Conflicting Publication” or “Competitive Works” in their book contracts.

To sum up, this clause will usually say something like this:

“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”

Fair enough.

But then the publisher likes to continue. The real crux of this clause is in the next section that will state something along these lines:

“Subject to the terms above, the Author agrees that in no event will the Author publish or authorize publication of any other book-length work of which the Author is credited under his/her own name as an author, contributor or collaborator until six months after the publication of the book under this agreement.”

Therein lies the problem if the author wants to have a prolific career. This clause would severely limit the variety of books the author could publish at any given time (if they have to wait 6 months after the publication of the book in this agreement or their other agreements). Just imagining the scheduling conflict alone is enough to give me a headache and if the author writes nonfiction as well as fiction or young adult as well as adult novels… you can see why this clause would inhibit a writer’s career.

So, agents limit the clause. “Any other book-length work” is too open-ended. We dig in and start defining that book-length work. Now how we define this can vary depending on what the author writes, what they have going at the time, and what they plan to write in the future. If the author already writes in let’s say an adult genre but now we are doing a contract for YA books, we force the publisher to acknowledge their upcoming adult books in this clause as well so it’s clear that even though those books are out on the shelves at the same time, they aren’t “in competition” with the book in this contract.

Why do publishers bother? They want to protect their investment and not have a diluted market when releasing their book. That’s the argument I’ve heard anyway.

Of course what’s not taken into consideration is the synergy and buzz that can be created when an author has multi-books out on the shelves at the same time.

You can probably also see that the bigger the author is (i.e. Nora Roberts or Dan Brown) the less of an issue multi-books become because there is room for all with his or her avid fan base. The no-compete clause becomes a moot point of the publisher wants that author on the house list.

We’ll tackle warranties on Monday. This is a too brain-taxing way to end a Friday. Happy weekend folks.

Too Many Agents!

STATUS: Office move. Chaos. Sneezing from way too much dust. Slightly crabby.

What’s playing on the iPod right now? Well, I found my iPod stereo but didn’t have my iPod with me. Knocks hand against forehead.

Last week I did an email interview for Finn Harvor’s blog Conversations in the Book Trade (I don’t think it has posted yet). He asked me an interesting question. He wanted to know if I thought there were too many literary agents working currently in the field.

Jokingly I replied that when I’m vying against several other agents for the same client, then yes, I’d have to say there are way too many agents.

Guess what happens today? I read a fab project that I must have. I have a great conversation with the author. And yep, you know it. Five other agents also want to sign her.

Five good agents. Five agents that are tough competition (I grumble to myself). I’m happy to be one of the five but lol, too many agents!

But if you’re reading (and you know who you are), pick me. Hehe

(hey, do you think this blog gives me an edge on the competition?)

No Agent Answers Hotline

STATUS: Everything is in chaos because my agency is moving to larger office space starting this weekend. I’m carefully marking boxes that have the “must open immediately” important stuff like my contracts that are currently in process. Now half the boxes have the urgent pink label on it. Hum…

What’s playing on the iPod right now? WHITE FLAG by Dido

Just recently I’ve been receiving a rash of phone calls from writers who are calling because they want free advice about their publishing career. I don’t know why but this always surprises me. Do they think I’m going to actually return these calls? I’m nice but…

Now I realize that by writing my blog, I’m putting myself out there and that writers will often feel like they “know” me but I want to gently remind all readers that I’m not a personal consultant that a writer can just ring up and get a question answered. This isn’t the agent answers hotline (but heck, that’s a brilliant concept for an enterprising individual!).

I’m certainly committed to helping writers. Just know that the extent of my free advice is what I give via my blog and my eNewsletter.

It Takes A Freakin’ Village To Buy A Book

STATUS: TGIF! I’m feeling decent. Did I finish everything on my list for today? No but I came close and that’s always amazing since I usually have 10 things that have to be done and only one actually gets accomplished. I have two outstanding things that I’ll finish up (probably tomorrow) and email off to my clients. What’s that adage about all work and no play?

What’s playing on the iPod right now? TUB THUMPING by Chumbawamba

When I stop to actually think about it, I’m generally amazed that any book gets bought at all. Why? Because think about the levels of difficulty involved in the process. Sometimes it’s hard enough to find that one editor who loves it and will champion it through the process but since books are bought by committee, it’s darn near a miracle when an editor gets the second reads and the editorial director in love with it as well (not to mention the marketing director and sometimes the publisher). In reality, it takes a village (of at least 5 or 6 publishing people) to buy a book.

So imagine how heartening it is to find not just one editor who loves a work on submission but three and then imagine how heartbreaking it is to have those editors go for second reads, get full support from those reads to take it to ed. Board, get folks excited there, but ultimately the offer gets squelched from a higher up like the editorial director or the publisher and boom, the project gets no offer.

Rejection is always painful but nothing compares to that. To know your book might not be bought solely because of market conditions and not because of lack of talent or because no editors felt the love.

Squashed by the bottom line.

In general, that tends to tick me off as an agent but as I’ve said before and will probably say again. Publishing is a business. P&L statements are the ultimate decision-makers.

End of story.

The Phone Is Your Friend

STATUS: My shoulder blades hurt from trying to handle all the tech problems on top of all the client work I need to review. I plan to finish up a lot of stuff tomorrow which excites me. Newsletter subscribe/opt-in is still an issue but I think we have finally nailed down the problem.

What’s playing on the iPod right now? HARDER TO BREATH by Maroon 5

Agents must be snowed under in January or doing “housekeeping” without informing some of their clients because I’ve been seeing some posts on the writer sites I visit where the writer is lamenting about their incommunicado agent.

I realize that a lot of authors don’t have a close, communicative relationship with their agents, so it feels like “bothering them” when they have questions, need to know the status of a submission, or generally want to career strategize. But remember, they work for you.

If you are sending emails with no response for weeks on end, you need to know that the telephone is your friend. Pick it up and call.

At the very least you can confirm that there is no problem with your ISP or with your emails getting spam blocked if you leave a voicemail message.

Your agent may take several days to get back to you (he or she could be out of town, out sick whatever), but if weeks go by without a return call, then some of your questions are starting to be answered. You haven’t been demanding; has this agent lost that loving feeling?

Personally I think it’s an awful way for an agent to dissolve a relationship but I’ve heard of it happening that way often enough. You need confirmation so you can begin to move on and find that agent who will embrace you and your work and you can’t do that if you are stuck in limbo.

Get courageous. Pick up the phone.

Glitch! Take Two.

STATUS: Quiet in publishing because it’s MLK day. Take a moment to think about the impact he had on our world today.

I’m happy to say that the e-newsletter is undergoing a few tweaks and will probably be sent out by Friday. Don’t forget that the subscription process is a double opt in so there’s no chance of spamming. You must respond to the email sent to you in order to be officially on the mailing list.

What’s playing on the iPod right now? SAILING by Christopher Cross

Let’s go from computer glitches to writer glitches because these might be the real rejection culprits. Are you ready to get critical and be honest about your manuscript? If so, here are some thoughts to keep in mind.

1. If writing suspense, is your story basically one long chase scene? This is a tough call because there appears to be a lot of events happening but ultimately, when the plot is broken down, and all you have are long, involved chase scenes, you’re going to run into problems.

2. In fantasy, how many scenes do you have where the main characters are sitting around a fire, dinner, at a table (insert whatever) and chatting? Don’t mistake event summary as actual action or scene building. In fact, do we need this summary? Good writers seamlessly interweave any summations to allow the story forward momentum.

3. In all genres, have you mistaken dialogue for action or scene building or for characterization? Remember, there has to be a balance. It can’t be all dialogue at the sacrifice of the other stuff. Some folks are great dialoguers. Don’t rely on your strength to carry a whole novel.

4. I see this a lot in fantasy. Do you have dramatic or action-packed scenes that are great but ultimately don’t further the story any? This is the hardest to be honest about because you love these scenes. They are sooooooo good but if they don’t help to develop the story, you’re going to get dinged.

5. Are you so in love with your characters that you have them do all sorts of fun stuff in scenes but ultimately these scenes don’t interconnect to the main story unfolding? Misguided character love has caused many a downfall for submissions received.

Can you list what actually physically happens in your story? Do it. How many things are on that list? Too many and your story is underdeveloped. Too few and it hasn’t got enough meat to it.

You’d be surprised at how often I pass on good, solid writing simply because nothing happens. Now with literary fiction, you’ve got a little more leeway but it’s the kiss of death for commercial mainstream and genre fiction.

A Call But Not THE Call

STATUS: It’s Monday. Today I went to an editor lunch with Kelly Notaras from Sounds True Audio. Since I mainly do my editor lunches in New York, this was a fun treat. We chatted about Chelsea Green publishing opening an office in Golden, Colorado. Dare I say it? An NYC exodus? Okay, probably not but I’m constantly amazed at how many publishing professionals are moving west. I consider myself on the forefront of the trend…

What’s playing on the iPod right now? EDGE OF SEVENTEEN by Stevie Nicks

Last week I found myself in the interesting position of calling two authors but not because I was offering representation. Sometimes an agent calls but it’s not THE call. You’re probably asking yourself why I would bother if I were passing on a manuscript.

Here’s why. Sometimes the writing is just that good (and in these two instances, I was torn and seriously contemplated whether we could work on revisions with the authors), but ultimately, if I think a manuscript is fatally flawed and it would entail the author revising more than half the work, I have to pass. It’s not fair to them to say, “well, representation is contingent on XYZ first” (despite being sorely tempted).

My goal in calling is to offer encouragement because I believe it’s simply going to be a matter of time before they are in print.

And I’m hoping they’ll think of me for the next project (or maybe they have something else in the cooker I can review so it behooves me to call and ask).

I do consider this to be part of my job. So it’s an important call even if it’s not THE call.

Was That Requested Material?

STATUS: I made quite a few editors excited with the submission I sent out today. Love that.

What’s playing on the iPod right now? AND WHEN I DIE by Blood, Sweat, & Tears

I have to say that most of the writers I talk to and interact with are wonderful. They are interesting, engaging, ask smart questions, follow guidelines, and don’t waste an agent’s time.

I just had to chuckle when my agency received a full manuscript out of the blue via the mail two days ago. First off, we never ever ask for a full manuscript to be snail mailed to us. Ever. Even from day one of my agency, I’ve always allowed a writer to send it to me by email. It’s the only time I allow a submission via that medium. Mainly because I don’t ask for that many fulls (54 total last year if you read my statistics entry) and I can do an intense virus scan before allowing that sucker to download.

And as y’all know, even snail mailed paper submissions are a thing of the past here at the Nelson Agency. I’m launching the new electronic submission database this week. The first request emails are probably going out tomorrow. Now if something comes via snail mail, we’ll KNOW that it wasn’t requested.

But I highlight this simply as a gentle reminder that it doesn’t help you or pay to circumvent the system. We really don’t want to read your work unless we’ve asked for it via the query process. Most agents simply discard unrequested material—no response sent.

I know that sounds harsh but I’ve said it here numerous times and I’ll say it again, the sheer volume of what we receive (even when we have actually requested it) is so large, we haven’t got time for the unrequested stuff. And now for us, the unsolicited stuff will be pretty darn obvious and I’m warning you now, we plan to discard it.

It’s also a small test. Do you understand publishing, agenting, and how the submission process works? Can you follow directions, instructions, or guidelines? Even these annoying steps (and I know they are annoying because every agent has his/her own unique, jump through the silly hoops, guidelines) acts as a filter for those who are truly serious about writing and publishing. Only the really serious would take the time to learn the biz and navigate the submission process.

Right there that’s an indicator to us that you have the fortitude and fortitude is an essential quality to becoming a future client.

Kristin’s Cheat Sheet

STATUS: I was a working machine today. I got a lot accomplished. Makes me wonder why I haven’t even made a dent in my To Do list for tomorrow.

What’s playing on the iPod right now? WHY CAN’T I BE YOU? By The Cure

Three days into the new year and it’s already clear that I’ll be negotiating some deals in the very near future. Now remember I did that whole Agenting 101 series starting back in late June 2006. So search the archives if you want to see the whole run-down on how to negotiate a deal.

Today I thought it might be fun to share my Deal Points check list. It’s my quick and dirty reminder of all the points that need to be discussed in the initial negotiation. All agents have one. It helps to keep an electronic paper record of all the points—especially if there is a lot of back and forth during the negotiation with points changing.

Once the deal concludes, I email the editor a copy of my deal points memo for written confirmation that our negotiations match.

I tell you. It’s saved me once or twice when an editor has left a house after contracting for a book but the contracts hadn’t been generated yet or were generated but something’s missing. In general, I just like being anal and detailed-oriented.

Ask what editorial changes will be needed.
Ask for potential pub date.

1. Rights Granted (If World involved, ask for confirm of splits, reversion in 18-24 months. If audio is involved, ask for a reversion in one year if publisher hasn’t sold it)

2. Advance
3. Payout
4. Royalty structure

5. Bonus clauses (I have a whole separate notes section for kinds of bonuses I want to ask for etc.)

6. option clause (Limit option clause to one name/pseudonym/next in series/or type of work)

7. No US-only Spanish language (however, if must give, ask for 1 year reversion clause, same royalty percentage, and for it to be excluded from the option)

9. Publication time frame (as in 12 months, 18, or 24)

10. No Joint Accounting if multi-book deal

11. Discuss non-compete clause/second option for smaller work (see publication house specific notes below) –These I’m not sharing because it would take too long to include.

12. Add reserved rights clause: “All rights not specifically granted hereunder are reserved by the Author, including, but not limited to US-Only Spanish Language, translation, motion picture, television, radio, calendar, commercial merchandising, audio, video, electronic, multimedia and/or interactive electronic rights.” (This sentence changes depending on rights granted.)