Friday, August 01, 2008

Ten Things to Know if You Go Commando

This is the handout for the workshop I did last week on what to watch for if you are publishing without an agent:

Ten Things to Know If You Go Commando
Writing the Region Seminar
July 26,2008

1. Don't sign anything without a publishing law specialist or publishing lawyer looking at it. If you need the name of a contracts review specialist, email me and I'll give you one.

Talk to authors who are published by the publisher. Particularly the authors on the back list.

Blog reader Pepper: One thing that would probably have helped is if I’d actually talked to authors who had been published through my first publisher. Don’t be afraid to ask for their experiences, though the newer the publisher, the less likely anything truly useful will come of it, because the publisher won’t have had time to make blatant mistakes yet, or the authors won’t have had time to realize they’re in trouble yet.

2. Buy and use Kirsch's Guide to the Book Contract
Acrobat Books (December 1998)
ISBN-10: 091822635X
ISBN-13: 978-0918226358

Know what's negotiable and what's not:

From blog reader Lynn: we’ve seen authors ask for some pretty ridiculous things that aren’t contract standard – like the time the author requested we would buy her a copy of Microsoft Word so we could perform our edits on her manuscript. If we declined to put that in the contract, she was going to walk.

3. A contracts lawyer is not in your best interest.
Publishing contracts, and publishing law are specialties.

4. Separate business and editorial calls/emails.
Keep all copies of your business emails. Keep notes on your business phone calls. You'll need them if you have to reconstruct or verify terms of the contract.

Blog reader Ryan: "Going commando" is as difficult as it is rewarding. Last month I found out by accident I was published in a book released in April, but they'd never sent a contract and I hadn't received a check or copies of the book. I knew I'd submitted to them, but after not hearing back I thought they'd passed and I didn't give it second thought. So I had to contact the editor and fix big deal and now I have an even better relationship with the editor; he was mortified. And the book was featured in the ISO BOMC and it's received great reviews, so I'm glad I'm in it even if I got paid late.

5. Doing foreign rights on your own
A. Who controls the rights/how long-this is negotiable in the contract
B. How to find foreign agents-Publishers Marketplace. You query them like you do US agents. Most are fluent in English.

6. Managing film rights on your own
A. Don't EVER license the film rights to the publisher
B. Get a film agent-there's a directory of them.
C. Don't give your film rights away for nothing (production companies call and ask for this all the time)

7. Checklist for royalty statements
Make sure you mark your calendar for when royalty statements are due and follow up if they are not received.
A. Books printed, books shipped, books returned, royalty rate
B. Reserve for returns
C. Accounting periods

D. The evil that is "joint accounting"

From a blog reader: "In the late 90s / early 2000s, I published a number of technical books with Pearson PTR. The first 3 sold well, the 4th one did not. I really, really, really wish I'd understood that they were going to apply the earnings of books 1, 2, and 3 to pay back the advance on book 4 in the event that book 4 didn't earn out. I ended up doing that on basically for free. Ouch. "

8. What happens when you don't get paid.
A. Be pleasantly persistent
B. Take amount owed in books (and not at full retail value)
C. Contact Amazon to have book removed from sale

9. What to do if you don't get paid correctly
Gail Gross
Marcum & Kliegman LLP

10. Know you're going to be doing a lot yourself.

One of the advantages of being published even without an agent:

Sandra: I discovered how editors treat my work, and they were vastly different. In the editing process, I learned to keep a sharp eye for mistakes and how to use diplomacy when dealing with editors who did a hatchet job on my work.

I consider this stage in my writing career to be a growth stage. Some of my writer friends hit the ground running, finding success right out of the gate. I'm simply taking baby steps, sniffing the air and making friends along the way. As long as my writing brings a smile or a tear
to a single face, I consider myself a success. Certainly not a financial success, since my last quarterly statement showed a grand total of $1.32.

Thanks to the many of you who emailed with your experiences and "what I wish I'd known" comments. They were all very helpful!


Linda said...

Timely stuff, and invaluable. Thanks. You're always looking out for us writers. Much appreciated. Peace, Linda

BitchySmurf said...

I've been reading your blog for awhile but this is my first comment. Hi, Janet!

This looks like an incredibly helpful panel. I'm going to pick up that Kirsch's Guide. I've read Mark Levine's book but not that one.

Anyway, I work at a publisher and I totally agree with everything you said. The contracts lawyer thing made me laugh too. Because I've dealt with lawyers who ended up reading over contracts for authors somehow and they had no idea what was going on and asked for things that were not possible. Publishing is a strange insular world.

I'd be very careful with all the subsidiary rights if you don't have an agent. Sometimes publishers will try to get rights they wouldn't normally get if they know someone doesn't have an agent, or has a new agent they've never dealt with.

Liana Brooks said...

I'd rather work with an agent, all things considered. Trying to sort through the legal muck and the minor details is just daunting.

That and the publisher I want to work with doesn't take unsolicited submissions.

Stuart Neville said...

If not for my agent, I would have been caught by that joint accounting thing. That alone is probably worth the agent's cut.

Maria said...

Thanks, Janet--for taking the time to offer the class and for putting up the notes here. Great stuff.

Pepper Smith said...

Thank you for posting this. There's a lot of useful information in it.

And I had to laugh when I read Sandra's remark about considering herself a success if she makes someone smile or shed a tear, rather than looking at the financial aspect. I know where she's coming from on that one.

Travis Erwin said...

Thanks for sharing but if anything you've made me see the importance of a having an agent in your corner.

Haste yee back ;-) said...

Your post is better than a basket of May-Bell's Pups. (Bluetick hounds)!

Of course, I'd rather have an agent, but you don't always get what you want... thanks for catching us up on publishing commando style. (Bib Overalls give ya maximum latitude... and longitude)!

And I agree about FILM... NEVER go there without a limo of starving entertainment lawyers who have briefcases full of anti-venom and carry guns!

Haste yee back ;-)

Kimberly Lynn said...

I knew there had to be a guide on book contracts but no one has been able to offer me any suggestions until now.

Thank you! Thank you! Thank you!

I’m going to order it today.

Steve Stubbs said...

This is the best post you have put up thus far. Lots of small presses take unagented work, so this is valuable information. One question regarding the following:

JR: “Don't give your film rights away for nothing (production companies call and ask for this all the time)”

There is a minor ambiguity here that is worth mentioning. I assume you are referring here to production rights and not to an option, since if someone wanted to pull a fast one on an author the production rights would probably be what they would be after.

I am shocked that companies would try to get this for free instead of paying several hundred thousand dollars for it. I can see how an author, flustered by an unexpected call from a production company, might say the wrong thing if not forewarned. You did a good turn by publishing this information. If an author did give away the production rights, s/he might regret it.

Especially if the original book was THE NUN’S STORY and by the time it made it to screen it somehow came out as a re-make of DEBBIE DOES DALLAS.

Anonymous said...

Very insightful!

I doubt I'd ever go it alone, especially since I have a hard time negotiating "dog-sitting" fees.

Haste yee back ;-) said...

For those with questions concerning the FILM BIZ...


THE WRITER GOT SCREWED, (but didn't have to)

A Guide to the Legal and Business Practices of Writing for the Entertainment Industry


Haste yee back ;-)

moonrat said...

but... but...

just get an agent!!! if you have a book deal already, you won't have a problem finding an agent!!

Janet Reid said...

I hear it's hard to get an agent even with a deal in hand sometimes. I know I've said no to at least 10 people who arrived with deals. Either they were small deals or I didn't think I'd be a good match for them long term.

Deborah Blake said...

Sorry I found this late! (I found you through Nathan's blog.) I am searching for an agent for my fiction, but I have successfully sold three nonfiction books without an agent, and haven't run into any horror stories so far. So it can be done. My publisher (Llewellyn) has treated me very well, and while it is certainly possible that my contracts contain something that will come back and bite me later, I haven't had any problems yet. In truth, they have been a pleasure to work with. Yes, now that I am clearly doing this professionally (working on the proposal for book 4 now, along with trying to get a novel published)it is time to get myself an agent, but going commando up to now has really been a perfectly pleasant experience. Just in case anyone thought that such a thing wasn't possible:)

ryan field said...

This was a helpful post for anyone who decides to forge ahead without an agent.

It can get complicated and there are things you need to know ahead of time.

peterc said...

moonrat, I had an editor at one of the largest University publishing houses saying - it's time to talk contracts - so I lined up an agent. Editor got miffed and dropped the whole thing. Agent then didn't think it was a project he could do much with and so dropped out too. Gave me some good advice on the way tho'.

Lynne Sears Williams said...

Congrats to all who survive going commando. I have a law degree and wouldn't dream of trying that. Too many horror stories. Thanks, Janet.

Diana said...

Nathan Bransford's blog sent me here, and I'm so glad it did!

I have a question. Is an intellectual property lawyer going to be able to handle publishing contracts?

Jolie said...

Wonderful post, Janet! I'll have to link to this on my blog. Even though seeking an agent would be my first step with a completed book, and I would never advise another writer to proceed without an agent, every author should still know these things for him/herself.

You did say one thing that wasn't clear to me: "Take amount owed in books (and not at full retail value)." What exactly does that mean?

And I'm curious about whether a new author who DOES have an agent should talk to the publisher's backlisted authors, especially if the agent has already said, "This is a good publishing house, they'll do right by you." Would the author be stepping on the agent's toes? Maybe this is a whole different post ... I'm curious about how much initiative an author should take in order to be involved in his/her own career without getting in the agent's way or undoing the agent's hard work.

Pepper Smith said...

Just a thought--a number of authors who were with small pubs that went under have contacted Amazon to have their books' listings removed, and been told that the publisher is the one who has to do that. And even when a book is out of print, Amazon will leave the page up, in case people with used copies want to list them there.

Whirlochre said...

I look ridiculous in combat gear and will probably opt to have someone hold my hand should the bombing break out — but many thanks for the useful info.

Janni said...

Really good advice here. I think there are times for working with an agent and times for going it alone (I've done both), and that neither should be dismissed out of hand.

It's also worth remembering that having the wrong agent is far worse than going it alone. (And one person's right agent can be another person's wrong agent--every career and every writer is different, and a wrong agent isn't necessarily a bad agent.)

And if you know you can go it alone, you won't choose the wrong agent just because you're afraid to work without one. (This is probably true of most sorts of relationships, actually!)