Yes, this is filled with whisky

Yes, this is filled with whisky

Saturday, August 09, 2014

Question: Agent commissions on self-pubbed, previously subbed work

My question is this:

Actual scenario:

Writer: I have a backlist of titles I'd like to self-publish.
Agent: That's a great idea! And we'll revise your contract to exclude self-published works from my commission structure. It's only fair, since I never worked on those books.
Writer: Yay!

Agent: Remember that book we worked on together, the one I loved so much and submitted to 10000 publishers? No one's biting. I'm afraid we have to take it off submission now.
{{Writer sobs}}

Still later:
Writer: Hey, maybe I can self-publish that one too...

Ah, but what happens next?

Possible scenario 1:
Agent: You self-published that? The one I worked several hundred hours on?
Writer: Well, it sucks to be you. Agents are working on spec, so if you don't make the sale, you don't get any of the cash.
God Almighty: Um, Writer, have you never heard of theft of services...? Don't answer that. I know you have.

Possible Scenario 2:
Writer: Here, a freelance editor would have gotten $$$ for all the work you did, so take this check.
Agent: Oh boy!
People Who Oversee Agent Ethics: Bad agent! Bad! No cookie! whisky for you!

Possible Scenario 3:
Writer, thirty-five years later: Well, I earned another five bucks this month from Amazon. I guess it's time to write my agent a check for eighty-six cents.***

My Question then is this:
Writer doesn't like any of these scenarios. What does the Shark say? #2 seems like the best option, except Writer isn't sure if it's an ethics violation for an agent to accept payment for services rendered to a client.

Well, it's not theft of services because the service the agent offers is selling your manuscript. She didn't. Thus no theft. God is very clear on this.

It's entirely ok with the AAR if you compensate your agent for sales of a book. Whether you write the check, or Random House writes the check, it matters not a whit.

This is something you want to discuss with your agent BEFORE the situation arises.  You'll say "Hey, if this book doesn't sell because every editor in NYC has lost his/her mind, followed soon thereafter by all editors in the known universe, and I self-publish this, how do we work your commission?"

And you'll find out what the agent wants to do. It's then up to you to agree. If you don't agree, negotiate.


Scenario #4
Agent: Remember that book we worked on together, the one I loved so much and submitted to 10000 publishers? No one's biting. I'm afraid we have to take it off submission now.
{{Writer sobs}}

Still later:
Writer: Hey, maybe I can self-publish that one too...

Still later:
Writer: Hey, I sold 5000 copies of that book that all those stupid editors said wouldn't fly, and that you and I really believed in.  Here's a check for x% of my earnings.  Rock on!

Agent: Yay! Booze fund money!

A lot of agents are doing this these days.

I'm not.

I've been accused by dear friends and colleagues of being "too pure" which cracks me up to no end, but my position is this: I signed on to sell your book. If I don't do that, you don't pay me.  If you elect to self-publish, you assume the risk, and you get the reward.

This is something to work out ahead of time though. The last thing you want is a disagreement about who owes who what when there's actual money on the table.  Actual money at stake brings out the knives faster than you can say "fillet of shark."

*** Agent commissions are generally 10% on subrights, and 15% on domestic sales. Thus the commission is either .50 or .75 .  If someone wants you to pay 17.2% on a book you self-pubbed you might want to shop around.


LynnRodz said...

Omg! Where else can you get a good laugh and be informed on important issues at the same time? Great Q/A!

Jennifer R. Donohue said...

I did wonder how this sort of thing might work out, so it was a great and informative post (I mean, I guess they do tend to be, n'est-ce pas? Otherwise we wouldn't keep coming!)

Communication is so very important, and it's interesting to me (though perhaps not surprising) that somebody who has an agent might not think to ask their agent "Hey, what if ___?" I mean, that agent's on their payroll, after all! (hurr hurr)

Deborah Ross said...

I ran into a related situation where my agent had sold the book (and received a commission), later the book went OP and I was able to sell audio rights. Did I owe the agent a commission? I believe yes because they had represented the book and fulfilled their part of the agreement. I could have argued that since I made the audio deal, I didn't owe them anything, but in the end, it's a small amount of money to keep things on the up-and-up between us. I value my agent and all the things they do for my career (which includes getting me multi-book contracts with a NY publisher).

whiporee said...

The agent who made all the changes did so for her/his own self interest, trying to get a more salable book. She/he may or may not have been right about the changes s/he made, because the book didn't sell. That might be because the book wasn't good enough, or maybe s/he had the wrong instincts. But s/he and the author were in a partnership, and the project they were partners on didn't sell. That sucks.

If the agent decided to pull the book from submission, then s/he gave up on it. S/he should have -- if she had any decency at all -- released the book in writing, because the author should have been able to do whatever s/he wanted to with it. They had a partnership that failed, and that should have been the end of that.

To expect money from a project you bailed on reeks not only of dishonesty, but of theft. The agent's job is to broker a deal between the writer and the published. Like any broker, the agent does a lot to make the product more marketable, but in the end, the product belongs to the writer. If a Realtor -- who invests a lot of money in listing a house, after all -- decides to let a listing lapse, then they'r rout of luck. I don't see why this is any different.

I think the key think should be that when the agent decided s/he was done with submissions, the only fair thing to do was to release the book back to the writers. Stockpiling it just in case the author finds a way to make money without the agent's help feels pretty low to me.

Janet Reid said...

Whiporee, your position ignores one very important factor: time. I've sold novels several years after I took them on. So far the record is nine years later. I've got another one that just clocked in at seven.

It's not like a house listing that expires unless your author/agency agreement is for a specified time period.

And let's not throw around words like theft and dishonesty. The comments column is for reasonable discussion and well thought out points, not hyperbole. Hypberbole is reserved for the QOTKU alone.

whiporee said...

I wasn't trying to be hyperbolic or disrespectful. I guess I misunderstood what the relationship between the agent and the writer should be once the agent has decided to to no longer put the book out for submission. It would seem to me that that means the partnership is over. Is that not the case?

Gale Martin said...

Ms. Reid, I stop in on your blog every now and again, and your mention of your being considered "too pure" caught my attention. You have an opportunity to make good on that label, if you so choose, at least where I am concerned.

Years ago, via Twitter, you offered to read a manuscript if someone did a video of "Baby Got Book." I did that video, and Cheryl posted on her blog "Brooklyn Arden." You didn't say it had to be the world's greatest video. Just that one had to be made, which I did. But you never made good on your offer.

I just finished revising the same manuscript I was working on at the time you made the offer on Twitter. I'm actually glad you didn't read it at the time, though I was disappointed (okay, crestfallen) you dismissed me and my effort. I emailed you the video, and never heard back from you. Are you willing to read it now? If so, please do let me know. I would be happy to submit it.

Gale Martin