Moral rights and sub rights and do what's right. It's a three-fer day at the Reef

Dear Sharkiness,

Much thanks to your advice, I dove into query trenches, and emerged with an agent in my claws teeth tentacles. However, eighteen months on, I'm not sure I picked the right one. And so, I'm back in your waters, asking for more advice.


One of the things I really wanted from the agent was editorial guidance. I asked about it during the call, and was assured I'll get "as much as I wanted." However, my novel went on submission with little more than copy edits. It didn't sell.

When I started working on the next project, I shared the outline with the agent, but got only an encouraging sentence in response. We agreed that she will give me feedback on the first draft. I got it back with some scene comments but nothing structural. Obviously, I'm working with beta-readers (who pointed out major plot-holes), but since this was something I was really looking for in the agent relationship, I'm rather disappointed.

Also, I recently discovered that the types of deals the agent has been making are "global rights," i.e., including all translation and film rights, which I believe is not the best idea.

And so, I'm thinking of moving on. But some questions remain:

1. Since the agent has already seen the novel, does she have any "moral rights" to it? It's not the case in the agency agreement, but I want to do what's right, not just what's legal. For me, asking for the comments on the draft was a test, and what I got is clearly not what I need. (And as I said, this was a first draft for comments, not a submission preparation).

2. I am terrified of going back into the query trenches. Since at this moment the agent is not handling this novel, would it be acceptable to contact some of the agents who I was in touch earlier? Or is it an absolute no-no until we officially part ways?

3. Am I right thinking that selling "all rights" to a publisher is generally a bad idea?
Thank you very much for your advice, and all the work you're doing for us here.

(1) No
(2) No/Yes
(3) Not so much bad, as you net less dough. If that's bad, it's bad.


Now, let's add some context.

(1) Moral rights are the right of a creator to have control over what happens to their work. If a sculptor has moral rights to her work, you (the owner of said sculpture) may not be able to legally alter it in a substantial way. You can't destroy it either.

As the author of a Work, your moral rights come into play if someone (the Publisher for example) wants to condense your novel.  You have the right to not allow that.

An agent is NOT the creator of the Work. She does not own your work and copyright and control does not belong to her, no matter how much editorial guidance she did (or didn't!) offer.

(2) You cannot have representation in place and start querying. Reputable agents will say exactly that if you query them.  If you don't reveal that inconvenient fact, and the new agent finds out, you're starting out poorly because you've put her in an ethically gray place. Don't do that.

(3) Selling all rights is shorthand for the publisher licensing all the subsidiary rights from you; including but not limited to audio, translation, film/tv, dramatic, merchandising and theme parks.

If the publisher controls those rights, you get a cut if the rights are sold.  It looks like this:

Offer for theme park rights for Felix Buttonweeze's Kale Gardens of Karkoon: $1,000,000
(yay!)

Publisher negotiates license.
Royalty statement reflect this

Gross payment: $1,000,000
Publisher retains 50% ($500,000)
Remits balance to agent
Agent commission 15% (75,000)

(A) Remits balance to you $425,000

Nice payday, thank youuuu!

BUT if you retain theme park rights here's what the accounting looks like:
Gross payment: $1,000,000
Publisher gets 0

Payment made to agency: $1,000,000
Agent commission 15% $150,000

(B) Remits balance to you $850,000

Now, I don't know about you, but I like that (B) more than (A).
Call me avaricious and greedy, I'm ok with that.

The math works the same way on almost all subrights. The percentage can vary but you see the pattern: when you license subrights to the Publisher, they get a cut. When you don't, they don't.

How an agency handles subrights is one of the questions you want to ask BEFORE you sign. While individual books may vary, and some publishes insist on licensing all rights, you want an agent who doesn't do that as their default position.  It's your money. Find an agent who's dedicated to helping you keep more of it.