Pub Rants

Category: Writing As A Career

Because Agents Are Human Too – Part 3

by Kristin Nelson

This month’s topic is the hardest to quantify, because when an agent offers representation, it will be difficult for a writer to ascertain his or her financial viability. This is often knowledge that doesn’t become apparent until after a business partnership has been established.

Regardless, it’s still worth saying: Good Agents are financially stable as agency entities as well as in their personal lives. 

First, let’s discuss why this is important. For those who are new to the publishing industry, keep in mind that money always flows to the author, not away. So, an agent earns her living by being paid a 15% commission (slightly different percentages for foreign and dramatic rights) on advances and royalties for projects sold. In other words, a book is sold to a publisher, the publisher sends a check to the agent, the agent takes her 15% commission based on the gross amount and then passes the other 85% through to the author.

Pretty simple. So why is it important for an agent to be financially stable in both her business life and her personal life? Because you don’t want your agent making fast, split-second decisions about your career, what deals you should accept or not accept, based on the fact that she might really need her 15% commission that month to pay her bills—either for personal debt or for the agency. Same is true when the contract comes in. You don’t really want an agent who will “rush” through a deal-points negotiation or a contract just to get it signed so that she can receive her commission faster.

That’s never going to be in your best interest.

Is it possible to identify the financial stability of an individual agent? In the initial stages of forming a representation partnership, probably not. But here are some thoughts to keep in mind:

*  Does an established agent, in the business for five years or more, still take on a lot of clients? That can be a sign that her current client list does not generate enough money to support her or her agency.

An established, good agent with solid financial stability takes on only select clients in any given year. Agents who need the money often take on a lot of clients so there is more front-end money (advances) coming in rather than back-end monies (revenue generated through royalties). Evaluate an agent’s sales track record and assess how likely the money generated by those sales creates financial viability for the agent.

Are all the deals for small or no advances? Do larger deals that have sold at auction for six figures balance out the smaller deals? Have enough clients on the agent’s list been successful enough to potentially earn back-end royalties to support the agent or agency?

Even when NLA was in its infancy and the budget was tight and small, I was very selective in offering representation. I had a five-year business plan and a business loan to make sure agency expenses were covered as I slowly built up my client list. Good agents don’t jump into agenting on a wing and a prayer. Good agents are savvy entrepreneurs with a plan.

* Does an agent close a deal quickly and then process the contract equally as fast? See my previous Fearless Negotiation article on this topic, as this might be a red flag.

* Does the agent talk about money in oblique or negative ways? There are certain expenses that are just part of being in business as an agent (i.e., paying for one’s own health insurance if an independent contractor under a larger agency umbrella). Does the agent kvetch or consider it a “hardship” to cover these types of expenses? Often that will come out in casual conversation and could be a sign of financial instability.

* Is the agent an independent contractor affiliated with the agency? If so, then that agent has to cover all their own expenses outside of the agency umbrella. Does that agent attend major events like Book Expo or Book Fairs, even when they have to foot the bill themselves? Or does that agent only attend conferences that reimburse travel, hotel, and meal expenses?

* Does the agent balk at footing extra, necessary costs—such as a consultation with an attorney for special situations or issues?

* Does an agent talk with a long-term perspective? Agenting is hard, and lots of new agents come to the business with wide-eyed optimism and then don’t last beyond two or three years. If an agent is committed to the career regardless of the finances associated with it, that will come through in casual conversation.

Keep in mind, this is not a get-rich-quick career. An agent needs to be in for the long haul to make it a success.

*********

General Summary about the Article Series: Just as the title suggests, because agents are also human beings, they are going to embody both good and bad traits found in human nature. No one is perfect. And as some authors have discovered, some agents are more imperfect than others!

Your job as an author is to objectively recognize those human attributes or failings in your agent and decide whether they impact your career. Hopefully they don’t. To this end, Karen Dionne of Backspace and I have put together a whole list of topics to tackle for “Because Agents Are Human Too.”

Photo Credit: Rich

A Digital Love Story of Survivability

by Kristin Nelson

The following would have been impossible even seven years ago:

This week I sold the film/tv rights for a memoir that a major publisher took out-of-print in 2013. But because of the indie-publishing revolution, the author had made her memoir available in the digital realm. Because of that, it was discoverable by a major Oscar-winning director and producer who not only took an interest, but also optioned the rights for television.

Sounds like fiction, doesn’t it? Back in 2005, I met Kim Reid at the Pikes Peak Writers Conference in Colorado Springs. Kim had made a pitch appointment, but she pitched me a novel that didn’t sound right for my list. However, in the course of our conversation, I learned about her extraordinary childhood as the daughter of one of the lead detectives who helped solve the Atlanta child murders, committed by Wayne Williams in the seventies and eighties.

I immediately told her, “You need to write that. I could definitely sell it!” So she did, and I signed her as a client. It took sixteen months of dogged determination, and Kim surviving a slew of rejections, but I finally sold No Place Safe in June 2006.

Kensington Publishing did a lovely job with it. Good packaging. Wonderful editing. And then the book was published, and bookstores shelved it, oddly, in African American Studies rather than in biography, where it truly belonged. I can honestly say that the shelving diminished the book’s discoverability, as well as its ability to sell.

Heartbreaking. By 2013, the work was out-of-print, and the rights reverted to Kim.

Luckily, the digital revolution happened. So Kim, in partnership with NLA Digital LLC, indie published the memoir to give it a second chance at life. Director/producer John Ridley found it. Bought a copy. Read and loved it so much that he convinced ABC Studios to buy it for him.

Suddenly, a memoir that would have dropped completely from sight was saved by publishing’s digital transformation. This title now has a ton of exciting new possibilities unfolding.

This is why I love agenting in the digital age. Authors have so many more options available now. And this particular terrific story happened to a very worthy book!

Photo Credit: Alyssa L. Miller

Debut Authors Pass On the Inspiration

by Kristin Nelson

After listening to an amazing series of keynote presentations at the 2015 National conference of the Society of Children’s Book Writers and Illustrators (SCBWI), during which authors wear their hearts on their sleeves, I feel the need to pass on the inspiration!

From the Success Stories Panel:

  • Ten years from first conference to first book published. And when editing with a critique partner, editor, or agent, recognize and acknowledge the issue, and then find the fix that works for you, as it’s your story. —Anna Shinoda (author of Learning Not to Drown)
  • When you decide you want to be an author, you need to try for real. —Mike Curato (author of Little Elliot, Big City and Worm Loves Worm)
  • You have to show up every day, and a lot of what you create will stink. Don’t wait for perfection. —Lori Nichols (author of Maple and Maple & Willow Together)
  • Torment your character. Give him/her a goal and spend the next 70,000 words thwarting it. —Stacey Lee (author of Under a Painted Sky)
  • You don’t need to win an award to acknowledge your talent or become a published or successful author. —Martha Brockenbrough (author of The Game of Love and Death)

Writers, keep writing! Keep the faith, and as Kwame Alexander reminded us in his SCBWI 2015 closing keynote speech (“Six Basketball Rules of Publishing”), “You’ll miss 100-percent of the time if you never take the shot.”

Creative Commons Photo Credit: @wewon31 #365

Because Agents Are Human Too – Article 2

by Kristin Nelson

(Just a note, this post is from our archives. Some references and links may be from past years.)

August’s topic might be the most controversial. At the very least, I imagine opinions will vary widely, and I welcome any conversation this might spark.

For an agent to be successful, she has to build trust with editors. Editors have very little free time, so they have to trust that what an agent submits to them will be worth reading. To that end, agents build relationships with editors to create that trust. Publishing, in this sense, isn’t the same as selling widgets. It’s rather an intimate industry.

And there is a narrow balance beam an agent has to walk between creating a good relationship with the editor and advocating for the author client.

With this in mind: Good Agents are friendly with editors but not friends with editors.

This is a very important distinction. It’s OK to be friendly in a professional relationship, but being friends poses a potential conflict of interest that might affect the agent’s ability to represent a client.

Quite simply it comes down to this. If an agent has to address a complicated or difficult issue with an editor (an issue that might lead to a split between the author and the publisher), whose side does the agent need to be on? The client’s of course.

But if an agent is good friends with an editor, the agent might not be willing to jeopardize that friendship to be the author’s champion.

At the very least, the agent might hesitate, and that is a real concern. If your agent has committed to representing you, he or she should never put personal priorities over yours.

Even though 95% of the time, it’s peaches and cream with the publisher and author, and a chummy editor relationship won’t be an issue, there will always be that other 5% where a big issue arises. It’s inevitable during a writer’s career.

As a lot of agents and editors are based in New York, where professional functions provide many opportunities for socializing, the line can blur more often than not. That’s something to keep in mind, and one reason being based outside the Big Apple can actually work in an agent’s favor—geographic distance helps create the “friendly with” versus “friends with” dynamic.

Even if an agent strongly believes she can wear two hats and be in agent mode rather than friend mode when the situation calls for it, keep in mind that agents are humans too and, therefore, fallible when it comes to managing the many types of relationships they maintain in their professional and personal lives.

The best agents, even those in New York, are mindful and respect the boundary between “friendly” and “friends.”

******

Summary of article series: Just as the title suggests, because agents are also human beings, they are going to embody both good and bad traits found in human nature. No one is perfect. And as some authors have discovered, some agents are more imperfect than others!

Your job as an author is to objectively recognize those human attributes or failings in your agent and decide whether they impact your career. Hopefully they don’t. To this end, Karen Dionne of Backspace and I have put together a whole list of topics to tackle for “Because Agents Are Human Too.”

Photo Credit: Tinou Bao

Because Agents Are Human – Article 1

by Kristin Nelson

Just as the title suggests, because agents are also human beings, they are going to embody both good and bad traits found in human nature. No one is perfect. And as some authors have discovered, some agents are more imperfect than others!

Your job as an author is to objectively recognize those human attributes or failings in your agent and decide whether they impact your career. Hopefully they don’t.

To this end, Karen Dionne of Backspace and I have put together a whole list of topics to tackle for “Because Agents Are Human Too.”

Topic 1: Because they are human, good agents keep their client lists small and manageable.

The trick is to define what is considered small and manageable. This question is asked at conferences all the time, and the truth is that the answer is going to vary widely depending on the agent and the agent’s situation.

Some things to keep in mind:

*Is the agent part of a larger organization/agency that supplies a lot of support staff in terms of auditing royalty statements, reviewing contracts, accounting, etc.? Or, if he or she is with a smaller, less corporate agency, how many non-agent personnel does the agency employ?

Many agencies employ a lot of agents but very few support staff. It’s typical in this industry that agents are one-man bands. They handle all the business elements listed above, and even if they’re associated with a larger agency, they still operate as the sole proprietors of their client lists. To be blunt, doing agenting well requires far more work than one person can handle in an eight- or ten-hour day—which means a lot of agents aren’t doing things like auditing royalty statements and thoroughly negotiating contracts.

More support staff = more clients an individual agent can manage successfully.

Here’s a good rule of thumb: If your agent has a lot of support in place, a larger client roster is not really a concern. If they don’t, then know that a larger client list is pretty difficult to manage, and more than likely, some business aspects are going to fall through the cracks.

Some possible red flags:

*Some agents operate on what we call the “shotgun” approach. They take on a bunch of clients, throw a lot of stuff out on submission, and see what sticks. These agents will have a lot of clients on their rosters.

*A high number of small- or no-advance deals could indicate that an agent is operating on the shotgun approach.

*Agents who are already established (five+ years as an agent) should have developed strong financial security with their current client roster. Be on the lookout for agents who suddenly take on a lot of clients all at once or during a short period of time. It could mean their current client list isn’t supporting their business.

*Be aware of agents who have high rate of client turnover, or who do a lot of one-time deals for authors but few subsequent deals.

For me, a small client list means fewer than 50 clients. My list is currently at 32.

Other agents may easily have a comfort level at 60 or 70 clients.

The real question here is, as an author, what is your comfort level regarding how many other clients your agent represents?

Perils of Waking Character Openings – Take 2

by 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

The Perils of Waking Characters

by Kristin Nelson

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

Article 5: Good Agents Audit Royalty Statements

by Kristin Nelson

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.

*********

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.

*********

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

Article 5: Authors – Are You Auditing Your Royalty Statements? by Karen Dionne

by Kristin Nelson

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.

*******

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. 

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.

*********

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.

*********

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