Article with Agent Lynn Nesbit Q&A

Someone on a mailing list I'm on mentioned this Poet & Writer Q&A with Lynn Nesbit, an agent who has represented the likes of Michael Crichton, Hunter S. Thompson, Tom Wolfe, Joan Didion, John Cheever, Gore Vidal, Ann Beattie, Anne Rice, Gay Talese, and Jimmy Carter. It's worth the read to get some perspective on the book business and some smart hints of what to check when considering an agent.

Emerging Term on Agent Contracts

Book authors have directly felt the pinch of falling advances for a time. Royalties are all well and good, but the vast majority of titles don't earn out, which means that the money you see up front is likely to be all that ever comes your way.

But now there seems to be the possibility of a secondary bite. A writer had asked if I would review an agency contract. One of the interesting terms was in the commission section. If the book didn't sell for more than an $X advance, then the commission automatically jumped from from 15 to 20 percent.

There are a number of problems, here. One is that the agent is supposed to get the best deal possible. This clause can actually give the agent a disincentive to get the best deal possible when things are borderline. Let's pretend that the point at which the commission changes is $10,000 and a publisher has offered $9,000. The agent has done work with the publisher before and knows that it might be possible to get the advance up to $11,000 with an accommodation elsewhere in the contract. But work out the numbers: 15 percent of $11,000 is $1,650, and 20 percent of $9,000 is $1,800. It pays the agent better to take the deal that is poorer for the writer. Of course, the author wouldn't know that $11,000 would have been a possibility. The net amounts to the author are even worse: $7,650, versus $9,350.

Then there are other considerations. If the book does really well, the agent is now getting 20 percent of all additional money, and not seeing a drop in commission for what the writer and publisher have actually pulled off. Such deals become even more problematic when you're looking at the series books, where the advances really do hover in this range - and it's in this range that I've seen the demand for a commission escalation. I'm sure some agents would say that they can't make a living doing 15 percent deals at such money levels. I'd counter that the authors don't have the luxury to move to more profitable projects once they've locked into the one, while the agent can go sell other properties.

If you get a contract from an agent and see this sort of provision, I'd strongly advise against signing the paper, and even reconsider whether you want to do business with an agent who isn't willing to take his or her share of the selling risk.

Get That Publishing Lawyer

Over the years I've heard a number of experienced writers and authors saying that they trust their agents to tell them if there are problems with a book contract. In my experience dealing with contracts and agents, this is a big mistake. Here are the common rationales I've heard:

• Agents deal with contracts all the time. Writers deal with contracts all the time, and how many of them are capable of providng a thorough review of a contract? Of the many hundreds of writers I've met over the years, there has been just a few that I think would be able to find most (though possibly not all) the potential probelms in a contract, and most of them have either been lawyers, paralegals, or corporate contract negotiators. The logic doesn't hold up. Yes, agents are likely more sensitive to contract language than authors, and they will spot many problem areas. But not all. I've seen too many writers who had used agents and ended up with problems in contracts to assume otherwise. Unless your agent is a trained publishing lawyer, he or she will be unlikely to catch every potential problem in a contract.


• I trust my agent. It's good that you trust your agent. But why put your agent into the box of having to know what a lawyer knows? If something does go wrong, you will no longer be able to simply say that the agent didn't catch a particular issue. Now the person will have let you down and your working relationship will go into the dumpster. A good many agent contracts also specifically state that they're not lawyers and that if you need one you should hire one. They don't include the language just for fun.


• A good agent will know the business and the potential problems of a contract. I agree that a good agent will know the business, but contracts change constantly and a slight difference in wording can make a big difference in interpretation. Also, agents will know the area - publishing - in which they usually work. But what if there's a problem with some other set of rights? An attorney familiar with licensing deals brings a broader perspective.


• Contracts is why I had an agent to begin with. I beg to differ. An agent is a salesperson. You have the agent to sell the book to an editor for more money than you'd be able to get on your own, assuming that the editor was willing to talk to you. To expect the agent to be a lawyer as well is to demand extra work that the person is not qualified to give.


• Why should I have to spend the extra money? If you ever have a problem and find yourself having problems with the publisher that could have been avoided, you'll know why you spend the money. Most of the time there won't be a problem. For the times that there are and the stakes are high, the cost of the lawyer (who, charging by the hour, will cost far less than the agent) becomes inconsequential. The cost of fixing a problem after the contract is signed can be orders of magnitude (as in 10, 100, or 1000 times more) than the review would have been. If the book is important and the contract amount significant, then you should make that much of an investment in your business.

I think the underlying factor is a combination of not wanting to part with any money and, more importantly, fear of the legal process. All that's really involved, though, is doing some research to get a lawyer experienced in the field, submit the document, and get the review. This should cost far under $1,000 - possibly under $500. If you're looking at even a low five figure advance, you're talking about a relatively small percentage, and a lot of peace of mind.

Simon & Schuster Blinks

From what the Association of Authors' Representatives (literary agent organization) and the Authors Guild are saying, Simon & Schuster is backing down on effectively elminating out-of-print rights reversion. The company had tried questioning the Authors Guild in a statement on Publishers Weekly, but apparently that was short-lived. Here's what the AAR had to say after having a few of its crew meet with S&S:

They informed us that S&S is investing a lot of resources in its digital publishing initiative, and their expanded efforts in conventional and newtechnologies will enable them to supply books to consumers in a variety of formats, including Print on Demand, electronic books, digital downloadable audio, online page views, et. al. Their goal is to keep books in print more effectively and to market frontlist and backlist titles more vibrantly.They have confirmed for us that they are agreeable to negotiating with agents a revenue-based threshold to determine the in-print status of a book.

That is certainly good news - and proof that if writers don't roll over, publishers are quite capable of backing down.

How Not to Tick Off Editors, Agents, and Others

Sally Wiener Grotta is a writer and photographer friend of mine who has a great blog entry on what not to say to editors and agents.

It's on the book end of things, but I think the comments are applicable to anything a writer does, whether book, magazine, corporate, or non-profit. Outside of the usual culprits - like "Don't screw up my name when sending something to me" - are some particularly relevant ones. For exmaple, the impulse to talk about yourself can be off-putting and can set off a red flag that you are going to be high maintenence. This is a perfect example of starting to understand your prospects and doing things to make them comfortable and happy. And when the prospects are happy, they're more inclined to give you assignments.