Before I indie published, I’d already queried 200 agents and got numerous rejections. As some of you may know, I blogged about it here on WG2E before. In the last year and a half, I’ve published 4 novels, 1 shortie collection, 1 novella, and my next novel will be out before Xmas, but I didn’t think once about querying an agent again. Then back in the summer, I was contacted by a guy (also a fellow author), who was impressed with my sales figures and asked me if I wanted an introduction to a Hollywood/New York agent that he knew. (There’s also a Kindleboards thread on it.) I figured why not? What have I got to lose? There’s no harm in looking at every opportunity that comes your way.
So I spoke to the agent on the phone, and he was particularly interested in touting the film rights to my romantic comedy Fourteen Days Later. This sounded great to me because I wasn’t entirely sure I wanted to give up my ebook rights, but a possible film deal or publishing deal for paperbacks sounded pretty damn good.
A little while ago, I had an email from the agent’s assistant saying they were impressed and wanted to offer me an agency contract.
Yikes! Suddenly, I had to put my business head on and try and find out more about contracts, because I didn’t want to sign something that might come back to bite me on the ass later. But where do you go to get that kind of information?
Well, I asked some fellow authors who had experience with agents, and I’d followed The Passive Guy’s website for quite a while and knew he dissected author contracts a lot and had a whole lot of fantastic information on there. I also looked at Kris Write’s website – she also has some great advice about business and contracts for authors So I did as much research as I could, writing down a list of things I wanted to question or change, and then had to make a decision about which lawyer to have check it out. Now, as we all know, there are good lawyers and bad lawyers. There are lawyers who specialize in contracts but won’t be experienced in author contracts with agents and publishers. I wanted to use someone who was experienced in both, and The Passive Guy AKA David Vandagriff was the obvious choice because I knew he knew what he was talking about. He also charges a set fee for dealing with contracts (details are on his website), so instead of being charged an hourly rate, you know exactly what you’re getting included up front.
David was fantastic. I emailed him the details of the agency, a copy of the contract, and a list of my concerns and questions. He emailed me back a document breaking down the contract into various sections and giving a very detailed explanation in plain English (not lawyer gobbledy-gook), which showed possible advantages or pitfalls along the way. After a few more exchanged emails, I had my proposed amended contract to send back to the agent for us to negotiate. I have to say, David was very thorough, fast, helpful, and professional.
There were a number of problems I had with the agency’s standard contract, but I’ll talk about the most important ones so you can look out for them, too.
Perpetual Agency Clause:
This agency wanted perpetual representation, which is pretty scary. There’s a long explanation of it here. I’m going to give you the short version. Basically, what it means is that the agency is entitled to their 15% commission for the life of the copyright (your lifetime plus 70 years), which is pretty much forever. So, imagine this scenario:
1) The Agent sells your book to ABC Publisher and they get 15% commission on any advance and future royalties you receive.
2) ABC Publisher stops publishing your book a few years later and the rights revert back to you.
3) In the meantime, you’ve cancelled your contract with the agent because you’re no longer happy with them.
4) Another publisher is interested in publishing your book and offers you a contract, or you decide to indie pub the book yourself, or you find another agent and they sell it to a new publisher.
5) YOU STILL OWE AGENT ONE 15% commission on any future royalties from no 4) FOREVER!!!!!
Yep, that’s what the perpetual agency clause means. Even though the first agent is no longer your agent, isn’t doing anything to help your career, and hasn’t worked for the new royalties, you will still have to pay them 15% commission FOREVER!
Termination Clause:
But wait, there’s more! This contract also had a clause in it saying that I could terminate the contract, HOWEVER, if I terminated the contract after they had “placed” my work with a publisher, and I later sold the book to this publisher myself or through another agent, they would still get 15% commission. Here’s the scenario:
1) The Agent sends your book to every single publisher he can think of. The publishers don’t bother to read it, but the agent has proof he sent it to them. He sits on his ass and does nothing else.
2) I get fed up with my agent doing nothing and terminate my contract.
3) One of my books hits the bestseller list (that part is true!), and now I’ve got publishers contacting me left right and centre. A bidding war starts (OK, getting carried away now!), and I land a publishing deal through my new agent. BUT since the publisher is one that my agent queried in no 1), I STILL OWE AGENT ONE 15% commission on any royalties on that sale FOREVER!!!!! In fact, now I owe AGENT ONE and AGENT TWO 15% commission, even though Agent One didn’t have anything to do with the sale!!!!!
I apologize for all the exclamation marks but this has to warrant them! Can you think of any other business in the world where this could happen?
Sequels and Works Derived From Clause:
Here was another biggie for me: At the beginning of the contract it lists the book that the agent would be able to represent. HOWEVER, there’s a later clause in the contract that states they get 15% commission (FOREVER) on any works derived from this book. Basically, that means the agent can claim commission on any sequels or series based on that book, even though it wasn’t specified at the beginning of the contract and they had nothing to do with any sale of it!!!!!
Have you fainted yet from amazement? I know I did.
Payment Clause:
Another thing I was worried about was the fact that the agency would handle my payments from any publisher/movie studio. They would get a royalty cheque for me, then they’d deduct their 15% and give me a cheque for the rest within a certain time period. BUT there is nothing to state that this money (my money) is going into a separate client account. So, imagine another scenario:
1) ABC Publisher sends my yearly royalty cheque to my agent.
2) My agent puts it in his regular business account.
3) A creditor of the agent wins a court judgement against the agent who owes him money.
4) The creditor gets access to my money because of the court order, and he uses it to pay the bills he’s owed by the agent.
5) I don’t get my royalties!!!!!
OK, surely you must be picking yourself off the floor now, wafting smelling salts under your nose, thinking is this for real? Oh, yes, I can assure you this is what the standard contract said. Now, a standard contract is one that is a starting point for negotiation. Almost every business in the world will start from a basic contract and negotiate over points before a deal is done, but not this agent. No. After I’d got my lawyer to make proposed amendments to the contract that would better protect my interests, they wouldn’t negotiate anything. It was their way or the highway
Bye bye time for me!
So back to the ass-biting thing again…If I’d signed their standard contract, any one of these clauses could come back to bite me in the ass later on and have a detrimental impact on my money and my career. I really hope this kind of standard contract doesn’t become an industry standard because the only person these clauses protect are the agent.
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I asked David a few questions that will hopefully explain author contracts to you a bit more…
1) How long have you been a lawyer, and what interested you in the field of author’s contracts with agents and publishers?
I became a lawyer when I was admitted to the bar in California in 1979. I became interested in publishing contracts when my wife signed her first publishing contract in 1992. Since that time, she has published 11 additional books and I have become a little better at reviewing publishing contracts with each one.
Earlier this year, I was involved in extended negotiations with my wife’s publisher to regain her rights to her backlist. We are now in the process of self-publishing those books.
During that process, I did a great deal of research on legal aspects of publishing contracts. I discovered there weren’t a lot of good blogs that discussed legal issues from an author’s viewpoint. That discovery lead me to start The Passive Voice – http://www.thepassivevoice.com/ – in February.
After getting the blog rolling, I discovered that some of my most popular posts discussed contracts authors sign with publishers and agents, so I wrote several more. I don’t follow a regular schedule, but I usually try to put up a new contract blog post every two or three weeks.
Although I had closed my law office several years earlier to pursue opportunities in the corporate world, I kept receiving e-mails from authors asking if I could help them with their contract issues or recommend someone who could.
Over several months, these requests led me to decide to become an active lawyer again. The large majority of my current clients are authors and most of the contracts I work with are publishing or agency contracts. Sometimes authors want to make certain they understand a contract before they sign it. At other times, authors want to see if they can get out of a contract they have already signed. Some authors want me to analyze their contracts and others want me to negotiate contracts for them or assist them while they negotiate their contracts.
One of the things I have always tried to do as a lawyer is to design systems that will allow me to provide quality legal work in an efficient manner. In the 1980s, I wrote a computer program that was, essentially, a divorce lawyer in a box. This program, called Splitsville, used artificial intelligence techniques to rapidly create the documents necessary to handle a divorce from start to finish. I used this program in my own office to keep costs lower for my clients and sold several thousand copies of the program to other attorneys.
While I may not write another computer program, I’m trying to use similar systems to assist with analysis of publishing and agency contracts. When successful, this approach allows me to provide good quality results while reducing costs for my clients.
2) One of the big problems for me in my recent contract was the perpetual agency clause. In fact, organizations including Authors Guild, the Romance Writers Assoc, and Novelists Inc called for agencies to stop using this clause, and warned their members to be aware of what they might be giving up if they signed such a clause. Can you explain more about exactly how that affects authors?
The perpetual agency clause grew out of a similar clause that publishers began to use a few years ago. In a typical publishing contract today, the author is granting the publisher an exclusive license under his or her copyright for the “life of the copyright.” In the United States, a copyright usually lasts for the lifetime of the author plus seventy years.
Agents decided that if this was a good idea for publishers, it was also a good idea for an agent.
The way this clause works in an agency contract will vary depending upon the specific language used in that contract.
A common version of this clause gives the agent the right to continue to receive commissions on a book that the agent sells to a publisher for the life of the copyright. This means that if an agent spends a week selling the book to a good friend who is an editor, that agent may receive commissions on that sale for 100 years or more.
As a general proposition of principal/agent law in the United States, a principal (the author) always has the right to terminate the services of an agent. One of the more pernicious effects of some of these perpetual agency clauses is that, even if an agent is fired, the agent continues to receive royalties and royalty statements for the author.
Agents pitch the value of their ongoing services to authors as a way of justifying their ongoing commissions. For example, the agent will continue to assist the author in dealing with publisher issues.
You can imagine the quality of ongoing service an author will receive from an agent she has fired. I can’t go into detail because of client confidentiality obligations, but some authors have a difficult time getting any information or royalties from an agent they have fired.
Another consequence of perpetual agent clauses is that the author is not only tied to the original agency, regardless of whether the agent she worked with is still there or not, but the author is also tied to whoever purchases the original agency or whoever inherits the original agency.
Again, you can imagine the problems this might raise over a 100 year time period. If a book is successful and continues in print, an author’s grandchildren might be fighting with an agent’s grandchildren to receive prompt royalty reports and payments.
3) What other important clauses should writers look out for?
I will preface my remarks by saying that any clause can be extremely important, depending upon what it includes. There is no law governing the drafting of contracts that requires important clauses to be highlighted or set apart from routine boilerplate. One of the oldest contract drafting tricks is to bury a significant clause deep in the middle of a lot of boring and difficult language.
Another old contract drafting trick is to say one thing toward the front of the contract then include something in the back of the contract that effectively changes the meaning of the first clause.
If paragraph 5 says, “Royalties for Ebooks shall be 25% of the selling price” and (20 pages later) paragraph 35 says, “Royalties for all books sold for less than $25 shall be 20% of the stated royalty in paragraph 5,” instead of receiving $2.50 in royalties for each sale of your $10 ebook, you will be receiving $.50 in royalties.
With that preface, here are some important clauses writer should look for.
In a publishing agreement that includes a life of the copyright clause, your Out of Print clause is probably the only way you will escape from that contract while you’re alive. 00P clauses are among the most boring and complex that you will find in a typical publishing agreement. Once you parse the whereases and wherefores, in a publisher’s “standard” contract, an Out of Print clause generally means the book will never go out of print.
In an agency agreement, you want to look at the payments clause. This will typically provide that all payments of royalties from a publisher will go to the agent. When the agent receives these payments, he or she is supposed to keep 15% and send the remainder to the author. There are many things that can happen to the author’s money while the agent is holding it. Very few of them are good for the author. I strongly recommend to all my clients that they insist on split checks so the agent is paid 15% from the publisher and the author is paid 85% directly from the publisher.
4) On your Passive Voice blog, you collect contracts and regularly analyse interesting paragraphs and “gotchas”. What’s the worst thing you’ve seen in a contract that could come back to haunt an author.
This is a tough question because there are lots of bad things that can happen to an author if she signs a bad contract.
I think the worst thing is a provision that is found in many publishing contracts and is often buried in the boilerplate at the back of the contract. This is a non-compete clause that places substantial restrictions on what the author can write other than books the author is writing under the publishing contract.
Some of these clauses prohibit an author from writing any book until the book in the contract is published. This can effectively prevent an author from writing anything at all for a period of two years or more. A multi-book contract extends the non-compete period even longer.
Other versions of these clauses prevent an author from ever writing anything that “might compete” with the book that is the subject of the contract. Looking at specific wording in some contracts, by signing the contract, the author is giving a publisher veto power over the right of that author to ever write a fantasy or sci-fi book for any other publisher.
If you sign a contract with one of these buried clauses in it, you may have killed your career as a romance writer. Or a science fiction writer. Or a young adult writer. Let’s hope you enjoy writing westerns.
5) One of the clauses in the standard contract sent to me was about getting paid my royalties. The agency wanted to receive payments directly from the publisher, then forward my percentage to me at a later date. This meant I would be putting trust into someone to deal with my money who I’ve never met. You suggested modifying the contract to include split cheques, so the publisher pays me my percentage directly and pays the agent theirs directly, which would immediately get around this problem. In your experience, do publishers have an issue with splitting royalty cheques in this way?
Thanks for giving me the opportunity to revisit one of my previous comments. Publishers split checks all the time. When two people co-author a book, they always ask for split checks. When three people co-author a book, they always ask for split checks. When a celebrity shares royalties with a ghostwriter, they always asked for split checks.
If you think about it, when you ask for split checks, you are requesting that a multi-billion-dollar corporation write four checks each year instead of two checks each year. These corporations write thousands of checks for all sorts of things each month. Sending one check to you and one check to your agent every six months is not going to work anyone at your publisher to death. The checks are all created and signed by computers anyway. Once the split checks are entered into the system, nobody at the publisher ever thinks about them again.
I will not ascribe bad motives to agents who want a single check like some other commentators do.
I will merely observe when the agent receives all the money, psychologically, the author may feel like she is in a dependent position. Will the agent send the check this week or next week? Perhaps the agent will send the check next month. This dependency tends to keep unruly authors in line.
****
Thanks David!
Three years ago, I would’ve been desperate to sign a contract like this to get published, but not any more. And while I am disappointed they didn’t want to negotiate, it means I’m still in full control of my career. But just because I think something’s not right for me, doesn’t mean it’s not right for another author. The good thing for me about sharing this information with you is that it might hopefully help you make an informed choice if you’re ever in the position of being offered a contract, or give you a starting point to do your own research.
The way I see it, it just means another opportunity is out there for me. I’m doing OK on my own. In the past six months I’ve sold over 44,000 books without an agent, although the thing that I would love to see is a movie deal. Whilst it would’ve been nice to have a Hollywood agent touting my work to producers/studios, I think I’ve done the right thing by turning down their contract. I was recently approached by a film company about movie rights to The Fashion Police, and the only thing I would need is an IP/contract lawyer. You never know what’s round the corner!
****
So, how about everyone out there? What have been your experiences with agents and contracts?
Happy Writing in WG2E land! – Sibel
One-sided forever contracts… no thanks. Smart moves Sibel.
Absolutely, Simon. Pretty scary stuff, huh?
That is absolutely INSANE!!! You make me glad I got rejections from agents! lmao
I know!!!
Wonderful analysis, Sibel. And love the follow up with PG!
The exact same agent in question offered the exact same contract to us, and we had the exact same phone conversation about film rights. We know of at least five other authors also contacted by this agent, and sure enough the agent was quite convinced he could get ALL OF US a film contract if we’d just sign on the dotted line.
How many other authors has he tried this on with that we haven’t heard about? Quite a few. The agent actually used another author to tout for clients on Kindleboards, as Sibel notes. Now what kind of agent would do that?
This aroused our suspicions immediately and we contacted the agent to find out more, expecting exactly the response we got. This agent had never read our book but was telling us the film was a signature away. Sure enough the contract that was eventually sent was the exact same contract Sibel got (we exchanged notes at the time).
There was no way on earth we were going to sign this, but we went along to find out exactly how big the CON in the contract is.
Sibel picks out some of the highlights. The in perpetuity clause is, no question, the most disturbing. Just to clarify the term of copyright Sibel refers to:
If you sign today and the book sells tomorrow, the agent will get 15% (plus 15% of the repubs, etc and 20% of the possible film, TV, games or whatever that derive in the future). Say you the author live another twenty years. That’s the next twenty years that agent will get that 15%. But then after you die the agent will continue to get that 15% for ANOTHER seventy years after that! The agent will still be collecting from you in the twenty-second century!
Even if you signed and sold today and died tomorrow the agent’s grandchildren would be collecting on YOUR book in 2081.
In fact pretty much the whole contract is full of similar perfidious detail.
This kind of insidious contract should be outlawed, but sadly it’s considered pretty much standard. Sadly many inexperienced authors will just see New York / Hollywood agent and sign on the dotted line, thinking they’re on the fast-track to success.
This is by no means the first agent we’ve rejected, but this is definitely one of the worst. Writer beware!
Yep, Mark, it seems as if this agent has been prolific in this approach. I hope to God this isn’t considered a “standard” contract. With the way the trad-pub industry is going now, this kind of contract puts another nail in the agencies coffin.
I called-out this agent – and the author the firm was using to reel-in fellow authors – on the very Kindle Board Thread you and Mark are talking about…the whole thing just smelled to me from the original Kindle Board post!
And wow did that thread get pretty intense!
The good news, authors like you and Mark did your homework and saved yourselves decades (rather a century…how awful is that reality?!) of turmoil!!!
Yep, it did get a little intense! Three cheers for homework!
Any time you are looking at a contract like this, even if you believe the agency has your best interests at heart, you need to have someone who specializes in Entertainment Law have a look.
The catch here, is that most authors don’t have $500 or so lying around, which is why many of them sign the contract in the first place.
Also, never fall for the “It’s our standard contract.” line. All this means is that there is a contract that their lawyers put together which gives their agency carte blanche, and they only had to pay once. It is not written in stone, by the finger of God.
If they are signing you, there should be some cost for the pleasure of acquiring you as a client, beyond toner and legal-sized copy paper.
Absolutely, which is why I got David to check it out. $500 or more is a lot, but it could potentially save you a hell of a lot more in the future.
Like I said above, a standard contract is a starting point, only not with this agent. The standard contract seemed to be their final contract. Non negotiable on the most important points.
I ditto the smart move. It seems (from what I’ve observed) that most industry contracts these days are VERY one sided. And not in the author’s favor!
I love the sweet irony that you were offered a contract, yet YOU turned it down.
Rather than go rushing into something just to get that traditional contract, you put on your business. It was the smart decision. And thanks for the reminder THIS is a business. Not an ego trip.
Er… I meant to say “business head”. Man, I need to proof read my comments. lol
LOL, Shea! Absolutely, this definitely is a business, and while I’d love to just sit and write all day, there is another side to it. I’m the only one looking out for the business side of things, so I need to gain the best possible advice and make the best possible decisions.
Wow, this is a wealth of information — thank you so much, Sibel and David. I wish I could say I was surprised, but… I’m not. I’ve been doing a lot of reading about dodgy contracts, and I can’t believe some of the things that are in them.
When I signed a contract with my former publisher, I bought a book by Mark Levine called ‘Negotiating a Book Contract’. It was very helpful. Also, in the UK, the Society of Authors has a service where they will review contracts for authors. Thank goodness! You’re so right that something can bite you in the ass later!
Thanks again, Sibel and David. Wonderful post.
Thanks, Talli. Great info there re the UK Society of Authors – that’s handy to know. It’s pretty shocking, isn’t it. The thing that is so confusing, as David mentions above, is having clauses that appear to mean one thing, then later on in the contract there’s another clause which changes the meaning of the first clause – all in lawyer gobbledygook designed to confuse us. That’s why it’s so important to get any contracts checked thoroughly by someone experienced in that field.
A fascinating piece, Sibel, and congratulations on your efforts. I had approaches from agents – although not this one – and publishers after Kindle success and like you decided to stay “Indie” for the time being.
My first book sold over 50,000 copies and brought me to the attention of agents/publishers, attracted by a proven sales record, several of them being the very same agents/publishers I’d approached and been rejected by in the past. I’ve met a few of them in person and all want more control over output, even content, than I’m comfortable with. As with your experience, the financial aspects are a concern, but in my case it was the prospect of handing over control of what I wrote and when I wrote it that disturbed me even more.
Being Indie brings financial rewards, certainly enough to be attractive to anyone whose income comes from the efforts of others, but also confers independence on the writer. Indie means I can publish a book in the form I intend it, not as an editor sees it, and can write at my own pace, not to an imposed deadline. There’s so much value there. Finally, we keep 100% of what remains after Amazon’s pound of flesh has been taken away. I don’t begrudge Amazon; they provide a point of sale unmatched anywhere else in the book trade, but do I really need to give up a further percentage of my income, forever and a day, so to speak?
Be very careful. Sign nothing until you’re absolutely convinced of the benefits, now and in the future. Read the small print. Take advice. Think very carefully about what you may be giving up. In more ways than one – it’s not all about the money!
A brilliant article from a writer I respect. Thank you, Sibel.
Aw, thanks so much, Jake!
Your sales are fantastic, Jake! No wonder you caught the attention of agents/publishers. I totally agree that being indie means you can publish the book you want, how you want it, instead of having to conform to imposed edits or dead lines. This is invaluable in make indie author’s books unique. And unique is what is selling.
Being flattered into signing a contract is madness. Like you say, you need to think very carefully about any pitfalls. Knowledge is power, and making informed choices are what it’s all about
Exactly this, Sibel:
“Being flattered into signing a contract is madness. Like you say, you need to think very carefully about any pitfalls.”
Great info, Sibel. I’ve never tried to “get” an agent. I’ve been Indie from the off, am doing okay, and after reading this I think I’ll stay that way, at least for the time being.
Thanks, Pam! I know there are some fantastic agents out there. I think you just have to make sure you know exactly what you’re signing and how if will affect you in the many, many years to come.
This is just a brilliant post, Sibel, and I thank you sooo much for sharing your experiences with us!
And bravo to The Passive Guy David Vandagriff!!! Well done, David!!!
I kept waiting…waiting…and waiting…and BOOM…you two nailed it…THIS IS A STANDARD CONTRACT!!! This, WG2E Peeps, is the NORM! Now that, to me, is what makes this whole idea of signing with an agent nothing but bad. This is the norm…and it’s also normal that they will NOT negotiate!
Again, bravo Sibel and David! This is info we all sooo need to hear and digest!
Too right, DD! It’s just unbelievable that this is a standard contract. No wonder the publishing industry is in the state it’s in. And if an agent thinks this is a standard contract and won’t negotiate, it makes me wonder what kind of contract they would negotiate with a publisher on my behalf!
They wouldn’t negotiate at all…they probably already have a few editors ready to acquire what they sign…no questions askes…no negotiations.
‘Cause remember, they’re targeting peeps like us who already are selling well…so they know there’s just money waiting for them to get a cut of.
Oh, Sibel! I know exactly who you are talking about!! He has that guy digging around the kindle boards baiting indie authors.
I’m so glad you took the extra step to get those contracts looked at. The wording can be so tricky to the naked eye. I’m not saying you won’t ever find a GREAT contract that will fit your career needs, but you were very, very, very smart!!!
Thanks, Tonya. I think contracts are always designed to confuse people. This is why it’s soooo important to get someone who know exactly what they’re talking about to check it out.
I’m so happy you dodged this bullet, Sibel. Wonderful and informative post. Posts like this are the reason I’m promoting WG2E on my site under the Writer’s resource area. Lots of info here for the newbie as well as the seasoned author.
I think we all read that “fishing” thread with interest as they seemed to be approaching a lot of good sellers. Now, thanks to you, very few will be caught in that trap.
Wow, honoured to have WG2E promoted on your site, thanks!
From the KB thread, you can see that some authors did sign it. I can only speak for myself to say that it wasn’t right for me, but as long as people are in control of all the facts, they can make informed choices.
I LOVE THE PASSIVEVOICE GUY His blog is one of my near daily stops! For the natural dissector in me, I love the analysis of the contracts. And he always has links to other important information going on in the indie and publishing world. Yours truly has even had a post or two of her own featured.
That said, #4 is a big, BIG, BIG problem for me, especially here in the United States. I really hope one author with this provision takes their publisher to court for Social Security payments, back wages, and unemployment taxes. Why? Because many of those no-compete clauses are EXACTLY like the clauses that the IRS has a said NU-huh to for a slew of other companies trying to skirt fiscal responsibility by labeling employees as “independent contractors.” Look up UPS. Here’s the form the IRS has that anyone can submit if they are concerned about if they are an employee or not… http://www.irs.gov/pub/irs-pdf/fss8.pdf
The form asks many questions, and depending on the relationship between an author and say a publisher like Harlequinn and the day-to-day communication, if there is a penalty for breaking the contract, etc. this could be a very interesting legal question.
BTW, I only knew about this type of issue because I attended free classes at my local Small Business Administration BEFORE I hung my shingle to be a writer.
If you are in the US, check out their website, it is a federal program designed to walk you through the laws and regulations of owning a small business, and can also help with state laws, too. I learned so many incredible things, that I cannot say enough about SBA.gov.
Oh yeah, Sibel my dear, you get BIG HIGH FIVE from your friend Elizabeth here, and this post is going in my Tweet rotation for the week…..
HUGS AND KISSES for being brave enough to share your experiences. You may have saved countless numbers of authors from piss-poor deals.
Aw, thanks, Elizabeth, you sweetie!
The Passive Voice is a great place for authors to get info and a whole range of stuff, and like you, I love it when David dissects contracts.
Great scoop there on the IRS, and it would be great to find out a definitive answer from a legal point of view.
It would take a class-action lawsuit. http://www.paymentservicescorp.com/blog/bid/37716/Employee-or-Independent-Contractor-a-12-8-Million-Decision
I was part of one against West Telemarketing. Many people don’t even know their rights when it comes to being an employee vs independent contractor. In the article’s third paragraph:
“According to the drivers, UPS controlled almost every aspect of the working relationship. For example, the drivers alleged that UPS required packages be delivered and picked-up at certain times, that UPS dictated the drivers’ dispatches, set the prices, and even controlled what the drivers wore. Essentially, the drivers claimed they were such an integral part of UPS’s business, that they could not be said to have any separate or distinct business of their own. The court allowed the case to proceed as a class action, and the group eventually included roughly 2,400 UPS delivery drivers.”
Now UPS didn’t go to court, they settled to prevent further damages, to the tune of $12.8 million for 2,400 members. That’s only a thousand or two per member probably after legal fees. But interesting that the lawsuit was certified, a judge allowed it proceed. And some of the parallels are definitely there as far as scheduling publication, setting prices, and preventing an author from conducting business with other publishers…. Problem is a group of authors would need to have similar clauses from a specific publisher, and most authors aren’t networked like that to know if they’re getting screwed individually or collectively as a group. And that’s the beauty of labeling everyone an “independent contractor” because it keeps everyone on their own little island of misery.
Thanks for posting. Very interesting stuff
Terrific, very informative & lucidly written post, Sibel. A must-read!
Believe it or not, once upon a time there was no such thing as agent contracts. Business was done on a handshake basis…no more! It’s (almost) shocking to me that contracts have become so onerous & one-sided. These days, an agent’s offer is definitely something a writer CAN refuse. Congratulations!
Thanks Ruth. Amazing to think that it was all on a handshake. You’re right, now we’re in a position to be able to refuse it if we want to, and it’s all thanks to the indie revolution!
Great post, Sibel. Thanks so much for all the great information. I see so many authors that dream of being published and sign things that they don’t have any idea what it means until they try to get out of it. Then it’s too late. And these agents and vanity publishers know it. Having total control is what is so great about indie publishing. Now with authors like John Locke and Amanda Hocking signing contracts that seem to suit indies better maybe something will change. Until then I am content to keep all the money myself!
Elizabeth Loraine, author of Royal Blood Chronicles
Paying it forward and sharing the knowledge is what it’s all about. I hate to think what would be happening right now if I’d signed this kind of contract a few years ago before I indie published.
:0
A useful and informative post, thanks. Glad to see you stood your ground.
Thanks Glynis
Whew! I’m wore out just reading this post! Great post, very informative. This is one of the reasons I became indie. I have no interest in agents or publishers. I want total control,me, myself! I do keep up with what’s going on in regards contracts. Just part of staying informed.
Thanks for sharing.
Paying it forward is a great way for indies to stay in touch with what’s happening. Thanks for stopping by, Jamie!
Good job Sibel! It’s a dangerous world out there and I’m glad you avoided this trap!
Thanks William. Phew, so am I!
One of the reasons contracts like this are out there is because there are authors who are willing to sign them just to see their name in print. It’s sad, really.
When I started in journalism, I was lucky that my mentor was a former lawyer. She impressed upon me, from day one, never, ever, ever, ever sign a contract that takes my rights way – nothing into perpetuity and nothing that says ‘all rights’ or, even worse, ‘work for hire.’ Thanks to her advice, I’ve been reselling articles and making money off of my work for years.
When I signed with an agent a few years ago, I was able to navigate the contract and make changes based on my experience. Then I sent it to a lawyer who broke it down even further. I was lucky – the agency agreed to all but one of my changes. My relationship with them has since ended – and I owe them NOTHING.
I fear writers don’t realize how contentious these relationships can become. They think that getting an agent is a dream. It’s not. It’s a business partnership, that’s it.
Good for you Sibel – not just for standing up for yourself, but telling everyone else about it!!!!
Thanks, Megg! And good for you for retaining your rights!
I always hate to see injustice or the thought that someone might end up in a situation where they get ripped off. I’m always exposing things! (Funnily enough, I have been told before I have a big mouth!)
Wow. Just wow. If it reeks of rotten fish, it’s… rotten fish! That’s got to be one of the worst contracts I’ve ever seen or heard of. It was smart of you to run the other direction.
Thanks, Michelle!
Best answer to a publisher or agent who says you don’t need a lawyer to go over your contract: “Oh? Did *you* use one?”
Oh, God, yeah!
I’ve heard that one before with people saying to me you don’t need a lawyer to look over a contract. Not with publishing contracts but property contracts. Duh!
One of the most informative posts I’ve ever read. Not that I haven’t cast a jaundice eye agents’ way in the past, this just brings home how careful one has to be with signing contracts. I so wish all writers would get over this ‘star struck’ attitude about NYC/Hollywood agents.
I have to send my groups here to read this one!!!!!
Patg
Thanks so much, Patricia! Glad it’s helpful
This post should be required reading for all writers. Awesome information.
I am an intellectual property lawyer, though, like David, I gave up the practice — and I’m so glad he’s back in the saddle with the expertise he has, helping authors sort through these contracts. When I was in the transition from attorney to writer, friends used to ask me about whether their writing contracts were “fair.” Unfortunately, the typical agency and publishing contracts are so far from fair to the writer that it’s almost ludicrous to review them. They are uniformly one-sided, as well as being largely non-negotiable.
It’s just sad to have to tell people that they are putting themselves in a very poor position when they sign such contracts — but of course, there were no options until now. As legacy publishers and agents get more and more desperate, and the money gets tighter, the contracts will only get worse. And this situation will continue as long as writers perceive that legacy publishing is the only way to really “make it” as a writer.
Thanks Sibel, for sharing all your careful research and informative findings so generously.
Patrice
author of political thriller (2 Women 4 Prez!) RUNNING http://www.amazon.com/RUNNING-ebook/dp/B005AJA43O
ePublisher of chick-lit series The Frisky Chronicles, #1 Dreamboat
http://www.amazon.com/DREAMBOAT-The-Frisky-Chronicles-ebook/dp/B0064VK50E
ePublisher of How David Met Sarah, a gentle love story for developmentally disabled readers http://www.amazon.com/How-David-Met-Sarah-ebook/dp/B005SMBFHM
Thanks so much, Patrice. It’s very sad that this seems to be turning into the norm. Thanks to e-pubbing, we all have choices now
Great post, Sibel.
But to clarify, the contract in question IS standard. And the agent in question has a good reputation.
I signed a contract with this agent after making changes to the contract according to suggestions made by a friend who’s signed a number of contracts. I’ll keep you posted on any developments.
Thanks, Suzanne, and good luck with everything. As I’ve always said, just because something isn’t right for me, doesn’t mean it’s not right for others.
So, Suzanne, you WERE able to negotiate some of the stuff out of the contract? Or was it other details you changed?
I had huge sales of my novel Not Low Maintenance this spring. A Hollywood producer contacted me about the film rights. She was legit, but now upon hearing Sibel’s experience, I suspect these people are all trawling for properties. Whatever is at the top of the chart, is going to get romanced.
I asked around for an entertainment attorney, and an agent I knew asked if she could submit it to the top editors in NYC. I didn’t sign a contract with her, it was more of a let’s see if anyone is interested. Even with the huge sales, only 2 of these top elitist editors bothered to get back to us and one could not have read the book or she’s such a mental incompetent that she would believe suspense novels are illustrated with watercolor drawings of hens, pumpkins and mixing bowls. It’s a romantic comedy, I guess that was too difficult for her to understand.
I didn’t hear from the producer again and didn’t sign a contract with the agent so my life hasn’t changed except that I’ve published 2 more books since and that wouldn’t have happened in legacy publishing. The obvious upsides to legacy publishing elude me but YMMV.
They could’ve been killer hens!
Sounds like you were in a good situation, no contract signed, and you had nothing to lose by them touting it for you. Best of luck for the future and with the new books
Thanks for this. It was really informative and helpful. (I followed you over here from PG’s blog.)
I’m stunned at how quickly things have changed in the publishing industry. At one time, a writer would have no alternative to signing a contract like this. Now, there are better options.
Thanks, Margaret. There are so many options now for us indies. The great thing is we’re in control of our destiny! Woo hoo!
Thank you for this incredibly informative post.
I read the Passive Guy’s blog all the time because he has an uncanny ability to convert the complex legal wordings of a contract into something clear and easy to comprehend. You were right to turn to an attorney for advice on the contract. I cringe each time I hear someone say “I don’t need a lawyer. I trust my agent.” Most agents aren’t lawyers, and even then, their motivations are not the same as ours. You’ve helped us all by sharing your discussions with us.
~Kristine
Thanks, Kristine. You’re very right, The Passive Guy has a great ability to break everything down into language that’s understandable to the non-lawyer-speak community. I was very happy with everything he did for me.
You’ve put this so well, Sibel. I’ve been reading about this stuff on a number of blogs, but I’ve never seen it put in such an easy-to-grasp way. You (and Mark) are so lucky you were savvy enough to dodge this bullet.
Very interesting stuff there from Elizabeth, too.
But I need to add that I first read about these toxic clauses on the blogs of agents who are as sickened by this stuff as we are. Honest, hardworking agents like Kristin Nelson and Janet Reid have been talking about it ever since Trident and some of the other biggies started victimizing writers this way.
So I want to make it clear that this is NOT true of all agents. Many agents have very fair contracts, and writers can still benefit from the help of a good agent.
Thanks, Anne! I think Mark’s going to do a follow up post on sunday so stay tuned!
Elizabeth’s scoop is very interesting, isn’t it?
I know there are some fab agents out there. And you’re right, this kind of contract is victimization. I believe that agents who are genuinely looking out for their clients and who give them the benefit of a win-win contract will be the ones who survive in these turbulent times.
From what I understand about this agent, I think you dodged a bullet, Sibel.
And thanks so much for the informative post here (including the Passive Guy’s input). You’ve done a good deed for all Indies.
Thanks so much, Toni!
My head hurts!
Haha..Wow, I can’t believe some people actually sign deals like that. (Most likely, because they don’t realize what they’re getting into). So happy you had the right resources to guide you on the right path! Thanks for the post. I’m sure this post will help guide others, too and lift the blinders. So happy for your success!
I hope it does guide people into knowing where to go to get info so they can check out any contracts thoroughly.
Great post, thank you. I have a law degree which did not specialize in contracts. You gave us a really nice run down of all the messes. Like the pictures, too.
Thanks, Lynn!
How in the world did I get such a grumpy avatar? I am pure sweetness and sunshine!
Ask anyone! Well, not anyone who *knows* me.
LOL, I always used to get a grumpy one!
So, whatever happened to the, “Rule against perpetuities?” An agency contract is a personal one and generally can be terminated at any time by either party with agreed upon notice requirements. No contract can extend forever.
Unofortunately, it seems that the terms of the contract can last forever in certain circumstances. Scary!
Holy crap! This is real eye-opening stuff. I am shocked by the “standard” contract & am so glad you included so much information in this post. Thanks so much, and I’m proud of you for sticking to your guns & waving bye-bye to these jerks.
Thanks so much! Glad it’s helpful
Don’t have anything to add except thanks for laying it out. Agents are going the way of the buggy whip.
Thanks, Dana! I know there are great agents out there, but contracts like this don’t do anything for their reputation, IMHO.
I’m pretty certain that my manuscripts are at this very same agency. I hadn’t heard anything back from them, and was going to nudge them, now, there’s no way in hell I’d sign with them. Thanks for sharing this information. You may have saved the careers of a bunch of authors.
You’re very welcome, MP! Hope it gives authors the knowledge they need to make an informed choice
We indies have to stick together. Thanks for your candor.
A friend of mine got caught up in the scenario you described where her royalty checks went to an agent who flew the coop.
Question: Are there agents who ONLY represent works for film? Or are authors stuck with finding agencies that want to rep ALL possible works?
BTW I tweeted this post. It truly rocks.
Thanks, Tamela. I’m sure there are certain agents within agencies who just deal with film rights. But I would imagine most agencies are dealing with film and other works.
WOW!!! Thanks for sharing this Sibel. Like you, 3 years ago I would have bitten their arm off for a chance a publication. I’m so glad I gave up after 50 rejections and decided to go it alone.
Good for you, Alison! Best of luck
My husband and I started our own publishing company in order to have more control with my book and the sales of the book. I had tried the agent/writer conference thing and did not have any luck. Besides, I was getting older.
Now I have a new job which is marketing. It is not necessarily easy for me, but I am persevering. Can’t wait to show your article to my husband. When a book store owner told me a few weeks ago that I needed an agent, I began to wonder if this is what might relieve me of all the hours of work on getting my book out. My husband disagreed.
Now that I have read your article, I see that he was right all along. Thank you for all the work you did to get these insights on agents and the publishing industry, and thank you for passing it along to all of us.
Glad it’s helpful, Patricia. I think even if you get a trad-pub deal, the majority of the time you’d still have to do your own marketing. Most publishers won’t have a budget to spend on newbie authors.
Wow! I have a friend who’s recently walked away from a deal because his lawyer advised the terms were well below the low end for the industry. It sucks that he has to eat the lawyer fees, but at least he still has the rights to his own work.
Hi Dayla, yep, at least the lawyers fees saved him a lot of potential extra problems in the future. Well worth it, IMHO!
Sibel,
Thank you for this awesome look into author contracts. It was a great read with a lot of spunk and even more knowledge, so I’ll be sure to bookmark it.
-S.M. Boyce
Author of The Grimoire: Lichgates
“From the moment you read these pages, you will be hunted. You have been warned.”
Thanks for stopping by, soooo glad it’s helpful to you
Scary and invaluable information! I’m so glad I came across your post. I will be referring to your adventure in an interview I’m putting together for my short story release Literary Dynamite. I’ll provide a copy of the transcript once it’s ready.
Oooh, interesting! Love the title!
How true! Thanks so much for sharing this nice article.
Thanks so much, Julie!
Hey, Sibel,
Thanks for the warning. I’d have to venture a speculation that any agent presenting such a contract is unlikely to be very successful (or is seeing diminishing commissions of late). I would also have to say that it is unlikely they’ll be retaining any new clients except for the excessively desperate or those with a slight-to-severe head injury of some type.
Always,
Brian
Hi, Sibel,
Victoria Strauss of Writer Beware here. Thanks for such a comprehensive post, and for the link to my own post on interminable agency clauses.
I’m compiling a list of agencies that use these clauses, and I’d be interested in knowing the name of this agency. Could you please contact me at beware [at] sfwa.org? All information shared with Writer Beware is held in confidence. Thanks again!
Hi Victoria
Thanks so much for the comment. A list of agencies will be very helpful to authors, that’s great! You’ve got mail!