Getting Back the Rights to Your Books - Part 1

One of the most remarkable changes I’ve witnessed in the time that I’ve been in the publishing business is the shrinking of the life span of books. When I entered the field, a book of any quality at all could be expected to be available to consumers for several years. Today, we project the age of many books in weeks. If you put a recently published book and a recently picked tomato side by side on a shelf, there’s a good likelihood that the book will rot first.

The change has triggered a pole-reversal in our attitude toward books. Whereas the thinking of authors used to be, “How can I keep this book in print as long as possible?” today it is, “How quickly can I get the rights back?” This shift is reflected in pressure exerted by agents on publishers to install language in their contracts enabling authors to recapture their rights the moment their books are removed from the marketplace. Publishers, too, fight to curtail the term of license they in turn grant to reprinters and other licensees. The idea is for the rights owner to take the dead or dormant property away from a publisher that is not exploiting it and resell it to one that will put it back into play.

Although one can get very nostalgic about the good old days when writers wrote for posterity, it would be foolish not to play by the rules that govern the modern-day game. If a publisher is committed to a book and works to keep it available to buyers, there are usually contractual provisions for retaining the rights or extending the term. But if a publisher can’t or won’t support that book, it stands to reason that the property should be recovered and recycled.
Most often new authors are so excited about selling their first book that they seldom look beyond publication date when they contemplate its fate. They cherish the perfectly understandable fantasy that it will remain in print for years and years and will be available in bookstores for the foreseeable future. That it might go out of print one day, considering it isn’t even in print yet, is a matter of very remote concern to them. And that the book might go out of print within a year or less after publication is so shocking that our first impulse is to dismiss the suggestion with a (nervous) laugh. Most books, however, do go out of print eventually, few being relegated to the status of deathless classics. Even more disturbing, an increasing number of them go out of print in a very short time.

The reason for this lies in the ferocious competition among publishers for shelf space in bookstores. Thousands of books sweep into the stores every month, enjoy their moment in the sun, and are swept out again on the tide of next month’s releases. None but the hardiest survive the deluge. Though you may receive royalty statements for years, the actual activity of your book can often be measured in days. The “sales” reported to you every six months may not really be sales at all, but merely released reserves – sales revenue held by your publisher until it is clear that the books shipped will not be returned for credit. Although your publisher lets a little of that money go every six months, it may actually have been collected during the first few months of your book’s existence.

One day, then, you may wake up to the realization that your book has had it. After a suitable period of mourning, your thoughts will turn to recovering the rights to it in the hope that one day you can sell them to another publisher. It is wise to try to recover them, for if you are normally ambitious, assiduous, and talented, you are going to become popular if not famous, and your earlier books may be in demand. They can be an asset of tremendous potential, and so you are well advised to look hard at the out-of-print and termination provisions of your contract when you are negotiating it, however difficult it is to conceive that you will need them.

Most publishers have some such provisions in their contracts as a matter of course. In some instances the termination clause calls for automatic termination of the contract and reversion of rights after a fixed period, generally three to seven years. From an author’s viewpoint this is highly desirable, as it completely eliminates debate over the definition of “out of print,” a debate that can hang you and your book up for years.

Naturally, if something is highly desirable to an author, there must be something seriously wrong with it from a publisher’s viewpoint, and that is the case here. The way a publisher sees it, even if a book is long out of print there is no telling when the author may be exalted to bestseller status with some future book, at which point those dormant early books take on tremendous value. Publishers will therefore try to bargain for an ambiguous out-of-print clause that will enable them to hold on to the rights for as long as possible. Something along these lines:

The book shall be considered in print if it is on sale by Publisher or under license granted by Publisher, or if any license for its publication remains in effect.

In other words, your book will be considered in print as long as it is available to the consumer in any edition controlled by the publisher, including its own and those licensed to other publishers such as reprint houses, book clubs, and foreign publishers. But the above wording raises more questions than it answers. What does “on sale” mean? Copies in the bookstore? Copies in the warehouse? Three copies in the bookstores? Ten copies in the warehouse? And what about those licenses to other publishers? Does your publisher have adequate termination provisions in his contract with the book’s Turkish publisher? And how do you ascertain the number of copies in stock, anyway? Visit your publisher’s warehouse? Visit your Turkish publisher’s warehouse? The nightmare potential here is very high.

The advent of electronic publication produced a solution to many of these issues. Publishers Weekly reported in the fall of 1998 that as soon as he saw a print on demand press, one publishing executive exclaimed, “Now, we can keep books in print forever!” Many agents, including yours truly, reacted very badly to this remark, because print on demand and e-books clearly gave publishers an excuse to hold onto rights in perpetuity. A book could be out of print for decades, yet its publisher would be under no obligation to give back the rights because the text was still in the memory of its computer, where it could be summoned to fulfill an occasional print on demand order or deliver the text to an e-book buyer.

Agents and authors began promoting a new definition of “out of print” that would no longer be as vague and ambiguous as the one that had prevailed up to then. The prevailing model now is that as long as the publisher reports X copies sold every year or pays the author Y dollars annually, the publisher may keep the rights to the book. This becomes a sort of annual rent on your property.

Though I staunchly advocated this arrangement, I was skeptical that publishers would spring for it, and I wrote, “As this solution is imaginative and simple, I cherish little hope that it will be adopted by American publishers.” I’m happy to report that my pessimism was unjustified. Almost all American publishers have adopted it, or at least will accept it when an author or agent demands it. However, the X’s and Y’s must still be negotiated. Obviously, your strategy is to bargain for a threshold defined as the lowest number of copies sold or fewest dollars reported annually.

Bear in mind that your publisher doesn’t necessarily have to reprint the book to maintain control. It can also license certain rights to other publishers. Suppose your Random House book is out of print and you serve notice that Random must either print a new edition or revert the rights. Rather than opt for either alternative, Random could sell paperback rights to Pocket Books or Berkley or some other reprint house, and would be within its rights to do so. Of course you might be glad to see your book back in print; you might also die a little every time you contemplate Random House taking its 50 percent share of that paperback reprint money.

Is there any way you can prove that your book is out of print? One simple but time-honored way is to get a friend, or a friendly bookstore, to order a copy of your book from the publisher. If the book is out of print, a clerk at the publishing company or warehouse will send back a written notice to that effect. You now have written evidence straight from the horse’s mouth. However, the publisher might state not that the book is out of print but that it is out of stock, which is not quite the same as out of print. “Out of stock” means your publisher has exhausted its inventory, a state of affairs that may be temporary, for the stock can be replenished either by returns from bookstores or by new printings. A book can therefore be out of stock without being out of print. But frequently, “out of stock” is a prelude to a book going out of print, so it can help your case to ascertain from your publisher that the book is out of stock.

Sometimes the only thing that prevents a publisher from declaring a book out of print is a large stock. You can therefore expedite a declaration of out of print by offering to buy back the remaining inventory. Having determined that your book is no longer active, you should then serve notice on your publisher that you want your rights back. Even if your contract provides for automatic termination, it’s a good idea for you to get the company to send you a letter declaring the contract terminated and reverting the rights to you, so that you will have written evidence that you are free to enter into a contract with another publisher.

The clock starts ticking from the date your publisher receives your request, and though your publisher may respond promptly, it’s more likely that you won’t hear for many months, if at all. There are two reasons for this. The first is that many reversion requests are accorded extremely low priority by publishing houses. Each publisher has a procedure for evaluating such requests, but because many factors go into making a determination, as we have seen, the decisions are by no means cut-and-dried. I find that getting action from most publishers on reversion requests is much harder than getting money from them, so we’re talking hard, my friends. One publisher told me that its committee for reviewing reversion requests meets only twice a year. But there’s another and more disturbing reason why publishers balk on handling reversion requests: they may want to stall for time while preparing the book for e-book or print on demand editions, which would in effect enable them to keep the book in print in perpetuity. A degree of tenacity, then, is called for in following up reversion requests.

It is not always desirable to go by the strict letter of the contract, however, and a certain amount of common sense, compassion, or both, comes into play. There have been occasions when, after I pounced on a publisher with a request for reversion, I’ve received a call pleading for more time to evaluate the situation. “Look, we know the author’s first book is out of print and you have us dead to rights. But if you could extend our deadline until we bring his second book out, we’ll do a new printing of the first to tie in with publication of the new one. And as long as you’re being so literal about the wording, may we remind you that we haven’t canceled her contract even though her new book is three months late. So, how about cutting us a little slack?”

In such circumstances (and even if the new book isn’t late), I sometimes counsel my author to grant the publisher that extension, for in the overall picture such a course may be of greater advantage than recapturing rights that are of little value at the present time.

- Richard Curtis

This article is an expansion of a chapter in How to Be Your Own Literary Agent, Houghton Mifflin Company, copyright (c) 1983, 1984, 1996, 2003 by Richard Curtis. All rights reserved.

How Agents Build Writers' Careers

A literary agent's life involves far more than reading, lunching, and deal-making. His or her services embrace the literary, legal, financial, social, political, psychological, and even the spiritual; and the jobs they are obliged to tackle run the gamut from computer troubleshooting to espionage. But because our business is a day-to-day, book-to-book affair, we tend to lose perspective. With our preoccupation with advances and royalties, payout schedules and discounts, movie rights and foreign rights and serial rights and merchandise rights, with option clauses and agency clauses and acceptability clauses and termination clauses, it is all too easy for us to forget that our primary goal is to build careers, to take writers of raw talents, modest accomplishments, and unimpressive incomes and render them prosperous, successful, and emotionally fulfilled.

This endeavor demands the application of all the skill and experience we command, plus something else: vision. Vision in this context may be defined as an agent's ideal of the best work an author is capable of achieving, matched to the best job his publishers can perform. An agent's vision should illuminate the author's path, oftentimes far into his future, if not for his entire career.

In order for our vision to be fulfilled, three conditions must be met. First, we have to learn and understand what the author's own vision is. Second, we have to align that vision with our perception of the author's talent: do we believe he or she has what it takes to realize that dream? And finally, we have to help the author fashion his or her work to suit the demands and expectations of the marketplace.

I cannot overstate how much easier said than done the process of building an author's career is. Human nature being what it is, the forces militating against success are heartbreakingly formidable. The agent's vision and the author's vision may be at serious odds with one another, or at odds with the publisher's, and sometimes it's at odds with the vision of the fans! Authors' a talents or stamina or financial resources may simply not be up to the task they have set for themselves. Their publishers may not like or understand their work. Their audience may reject it. Every imaginable contingency may beset an author along life's path: death and disability, divorce and disaster - the same ones that beset everybody else, plus a few that are indigenous to creative people. The attrition rate for authors and their dreams is extremely high, and the odds against talent flourishing under perfect conditions are prohibitive. With so much at stake, it should come as no surprise that agents approach the building of their clients' careers with the utmost solemnity.

When a writer becomes my client I sit down with him or her to explore immediate and long-term goals. I ask writers how much it costs to live comfortably, how much they earn per book, and how long it takes them to write. It should then be a matter of simple arithmetic to determine what I must do to keep their careers on a steady keel: simply divide their yearly expenses by the number of books they are capable of producing annually. This gives me the amount of money they must earn (after commission, I hasten to remind them) per book to make a living.

Unfortunately, life is not a matter of simple arithmetic. Even in the unlikely event that authors live within their means and nothing untoward befalls them and their family, there is no room in the above equation for profit, and visions of greatness require an author to earn a profit.

Now, books that earn a profit for authors are not easily come by (not, at any rate, as easily come by as books that earn a profit for publishers). Good luck and good agenting may sometimes make one happen, but it is unwise for an author to depend on either. This means authors have to make it on their own by writing a breakout book. But how can they do that if they can't afford to buy the time?

Even if you are blessed with an unexpected windfall, there is no guarantee that you will achieve your dream, thanks to Fehrenbach's Law. T. R. Fehrenbach, the brilliant Texas historian, once wrote to me that, "Expenses rise to meet the cost of every sellout." In other words, the profit that authors make does not necessarily go into the fund marked, "This Time I'm Really Going to Write That Book." More likely, it will go toward something that is easier to grasp, like a new Buick, a home theater with all the bells and whistles, or a two-week vacation on Lake George.

The truth is that writers are no better equipped to fulfill their dreams than are other middle-class people, because compromise is an easy habit to get into when it is rewarded with comforts and luxuries. Austerity, integrity, sacrifice, relentless determination, and other virtues associated with uncompromising artistic endeavor are seldom a match for a brand-new living room suite or wall-to-wall carpeting for the master bedroom. And so an author's dream gets postponed a bit longer, and a bit longer after that, until perhaps that terrible day comes when the dream deferred pops, in Langston Hughes's phrase, "like a raisin in the sun." Death and disability, divorce and disaster are not the only terrible things that can befall an author, or even the worst things. Giving up his dream is the worst thing, and that is truly tragic. I believe it is an agent's sacred duty to keep this from happening, to keep the flame of hope burning in the author's breast, to encourage him or her in every way possible to seize the moment when an opportunity to reach for greatness presents itself.

Just as importantly, the agent must make a judgment as to whether your talents are up to your ambitious projects. They are not always, by any means. Authors are no more objective about their strengths and weaknesses than anyone else, and when their self-perceptions are deficient, it is vital for their agents to shed light on those blind spots.

Another way that agents help authors build their careers is to match their "product" - an unpleasant but useful word - to the demands of the marketplace. In other words, to make it commercial. It is not enough for a writer to fulfill his dream if his dream happens to be to write perfect imitations of Virgil, parodies of Thackeray, or metaphysical poetry. The agent must therefore be as intimate with publishing and reading trends as he is with the soul of his author, and to make sure the author's work plays into those trends.

The problem doesn't always lie with the author. Some publishers are simply better at publishing certain types of books than others, and an author's development may eventually reach the point where the publisher simply can no longer accommodate it. Then it may be time to move the author to a house that understands the author's needs and work and offers an environment in which these can be nurtured properly. It is not always greed that motivates agents to switch authors to new publishers. (Most of the time, yes, but not always.)

If all goes well - and we have seen how seldom it does - you will gradually, or perhaps suddenly, move on to a new and lofty plateau, maybe even onto the very summit itself. Hand clasped in your agent's, you will breathe the heady, rarefied atmosphere of success. You will have fulfilled your dream, your talent will now be a splendidly fashioned tool, and you will be published by a publisher that knows how to realize every dollar of commercial value from your masterpieces for your mutual enrichment. Only one thing remains to be done to place the capstone on your sublime triumph.

Why, fire your agent, of course.

- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

What Your Agent Has Done For You Lately

One day, I got a phone call from an agitated editor. His voice was trembling and he could scarcely contain his emotion. The emotion was fear.

It seems that a hotheaded client of mine had gotten so upset over some editorial work done on his book that he'd threatened in a loud voice, during a visit to the editor's office, to pulp his face. Some of his colleagues had interceded and ushered the distraught author out of the building. Of course, beating up your editor is a time-honored writer's fantasy, but my client had taken it further than most authors do. Pulping an editor's face is a serious breach of etiquette. "What can I do to help?" I offered.
"Restrain him," the editor said.
"You mean, physically?"
"Yes, if need be."
I could not suppress an ill-timed laugh.
"What the hell is so funny?" he demanded.
"Well," I said, "I've done everything else, I might as well be a bodyguard for an editor, too."
After settling the dispute by eliciting promises of good behavior from my client in exchange for assurances of more thoughtful blue-penciling from the editor, I reflected on some of the unusual things that agents are called upon to do in the course of their careers. I am often asked to speak to groups of aspiring writers and to explain just what literary agents do. I wonder how the audience would react if I told them that among other things, literary agents babysit for their clients' kids, paint their clients' houses, and bail their clients out of jail. They even fall in love with their clients and marry them. In fact, I have done all these things and more.

Years ago, before it merged with another agents' organization to form the Association of Authors' Representatives, the Society of Authors' Representatives issued a brochure describing some functions that authors should not expect their agents to perform. Most of my colleagues would lose half their clients overnight if they took these guidelines seriously. For instance, the brochure advised that you shouldn't expect your agent to edit your book. But most agents I know would consider themselves remiss if they did not do some light, and sometimes heavy, editing to improve a book's chances of acceptance.

Here are some other things the brochure mentioned:

* The agent cannot solve authors' personal problems. As a writer myself, and a friend or agent of many writers, I can testify to how tightly interconnected the personal, financial, and creative elements of an author's life are. Trouble in one area almost invariably indicates trouble in the others. The agent who turns his back on an author's personal problems may well be diminishing that author's earning power. So for reasons of self-interest if not compassion, agents may find themselves playing psychiatrist to clients, sticking their noses into authors' marital disputes or taking depressed clients to baseball games.

* The agent cannot lend authors money. Ha! In this age of glacial cash flow, agents are being asked more and more frequently to play banker. I'm not sure authors always appreciate that the agent who advances them money lends it interest-free, or that the agent's total loans to clients at any given time may come to tens of thousands of dollars. But I don't know too many agents who can gaze unflinchingly into the eyes of a desperate client and say, "If you need a loan, go to a bank."

* The agent cannot be available outside office hours except by appointment. Double ha! with a cherry on top. Many business and personal crises arise for authors at times that, inconveniently, do not correspond to regular business hours. Book negotiations can carry over into the evening, and global time differentials put Hollywood three hours behind New York, New York at least five hours behind Europe, and Japan or Australia half a day away. An agent's day is not the same as a civil servant's. Many of my clients have my home phone number. I only ask them to use it sparingly.

*The agent cannot be a press agent, social secretary, or travel agent. A lot of agents I know take on these functions to supplement the author's or publisher's efforts. Literary agenting is a service business, and anything within reason that an agent can do to free a client from care should be given thoughtful consideration. Rare is the agent who has not driven clients to the airport or booked them into hotels, arranged business or social appointments, or helped them secure tickets to a hot Broadway show. We stop at procuring intimate companions, but many of us have made love matches and a few have had babies named after them. The roles of agents have shifted in the last decade from mere dealmakers to business managers.

Like my colleagues I have a large quiver full of sales techniques ranging from sweet talk to harangues. But I wonder how many agents have donned costumes and performed burlesque routines to sell books? It happened. Some clients of mine had written a satire of the best-selling book The One Minute Manager. Theirs was called The One Minute Relationship, demonstrating how you could meet, fall in love, marry, and divorce within sixty seconds of the first heartthrob. It was to be published by Pinnacle, but about a week before Pinnacle's sales conference, the editor-in-chief called me. "I'm thinking of something different for presenting this book to the sales staff. Could your clients cook up a cute skit?"

I promised to see what I could do, and called my clients. They came to my home and we brainstormed a skit over take-out Chinese food. The shtick we came up with featured an Indian swami who has developed the One Minute Technique. He has to wear a white robe and a turban with a jewel in it. The "jewel" in this case was a thick slice of kosher salami, and we called it the Star of Deli. My clients and I fell on the floor laughing. Then they suggested that since I had the robe, the turban, and the salami, and did a passing fair imitation of a Hindu fakir, I should perform the starring role in front of the Pinnacle salespeople. It took several bottles of Chinese beer to make me agree, but at length I went along, reasoning that these days, whatever it takes to sell books is okay by me. The skit went over well, climaxed of course by my gleefully stuffing the Star of Deli into my mouth. Pinnacle loved it so much they took our show on the road, videotaping our performance and featuring it at the American Booksellers Association convention. Last time I looked, The One Minute Manager was ranked #6,150,172 on Amazon.com.

Agents are not the tight-lipped stiffs that some have made us out to be. Like Shylock, we bleed if you prick us and laugh if you tickle us. I have cried with and for my authors when misfortune strikes, and rejoiced with them at their weddings and the births of their children.
I have also had some great laughs, not a few at the expense of clients and colleagues, for I am an inveterate practical joker. A client and good friend who'd bought himself a telephone answering machine (long before voicemail) was so anxious about missing important calls that whenever he was away for any length of time he called home every fifteen minutes to get his messages by means of a remote control signal. He worried that machine to death. If he returned to find no messages, he would examine the phone and the answering machine for malfunctions.

One day, I decided to indulge his worst paranoid fantasy, and left the following message on his answering machine: ". . . Studios. If you don't return my call by five P.M. we will assume you're not interested and we will withdraw our offer." The poor fellow spent an hour phoning movie studio executives on both coasts explaining that his phone machine had malfunctioned in the middle of a message, and asking if they happened to be the studio that left an offer on his machine that day.

Most people do not think of literary agents as leading adventurous lives, and that is largely true. Most of the time our conduct is as tightly circumscribed as that of business people in any other profession. Our greatest thrill is grappling in close combat with an editor during a six-figure negotiation, or stalking a check through the treacherous thickets of a publisher's bookkeeping system. Accounts of such adventures make for exciting listening only if you happen to be another literary agent, but somehow they don't carry the same weight as the tales of mountainous seas and mutinous tribes, challenging mountains and charging rhinos, that you can routinely hear at any meeting of the Explorers Club.

Nevertheless, because our profession brings us into contact with unusual characters, we do occasionally find ourselves carried far from the stereotypical role of submitting manuscripts in the morning, collecting checks in the afternoon, and going to lunch for three hours in between.
Early in my careerI was in London setting up the English office of Scott Meredith's literary agency. Novelist Evan Hunter (since passed on to his well deserved reward) and his wife were passing through London on their way to the Cotswolds, and we spent a delightful afternoon dining al fresco at my boss's expense. I bade them goodbye and wished them a pleasant journey, and figured that was that. About a week later, however, I got a call from Evan in Southampton. They were about to embark on a ship for America when his wife realized she had left her jewelry in a safe in the Ligon Arms Hotel in the Cotswold town of Broadway. "I'm going to ask an important favor of you," Evan said. "I want you to take a train out there and get the jewels back. Bring them to London and we'll arrange for them to be shipped home."

At that time I was in my twenties and, beyond getting stuck in an elevator for two hours and having my tonsils taken out, I had never been at hazard in many "real life situations." This sounded like an opportunity to experience the kind of peril that confronted the Burtons, Spekes, and Hilarys through whom I'd lived vicariously.
"They're not just going to hand the jewels over to me," I protested.
"Of course not," said Evan. "There'll be a password."
"A password?"
"When you get to the hotel, go to the desk and tell the lady you're there to recover our jewelry. Then say the password."
A password! This was a scheme worthy of Evan Hunter, who under the pen name of Ed McBain had created my favorite police procedural series, "The 87th Precinct."
"And what is the password?" I asked.
There was a long pause and I sensed that Evan was looking furtively around for eavesdroppers. He uttered a phrase in voce so sotto I had to ask him to say it again. "'Phoenix Rising'," he said. "Repeat it."
"'Phoenix Rising'," I said. "Heavy!"

That afternoon I caught a British Railways train to Evesham, the station closest to Broadway. The taxi driver I hired to take me to Broadway looked like Central Casting's notion of a Dickensian cutpurse, including addressing me as "Guv'nor." When he asked me, just being friendly, my business in Broadway, I told him, "Just touring." He arched an eyebrow. I wore a three-piece English-cut suit and a tense smile and didn't look remotely like a tourist. I looked like a man trying not to look like a man who was soon to bear tens of thousands of dollars' worth of jewelry on his person.

The Ligon Arms Hotel had been built in an era when Englishmen were four feet tall, as I quickly discovered when I grazed my skull on a lintel. I wobbled to the desk and found a diminutive woman peering at me who looked as if she would crumble into powder if I spoke too loudly. I cleared my throat and murmured, "Phoenix Rising." She gazed owlishly at me and my heart sank. Something had gone wrong. Evan had not told her the password. He had told her the wrong password. She had not heard it correctly. She had stolen the jewels.

"Phoenix Rising. Phoenix Rising," she muttered, searching at least ninety years of memory for an association with this mysterious phrase. Then the light of recognition kindled in her eyes. Her hand leaped to her mouth. "Phoenix Rising! You're Phoenix Rising! EVERYONE, IT'S PHOENIX RISING! HE'S HEAH, HE'S HEAH!" Whereupon bellhops, maids, cooks, and guests poured into the lobby to see The Bearer of the Password. I doubt if anything quite like this had happened here since the Norman Invasion.

We crowded around the safe as the jewels, rolled in a pocketed length of embroidered velvet, were set before me. Delicately, my friend untied a drawstring, making certain not to touch the jewelry itself. I stared at a handsome collection of baubles. There was a hurried conference when we realized I had no inventory of what was supposed to be there, and I was required to sign a receipt itemizing each piece. The staff gathered at the entrance to bid adieu to Alias Phoenix Rising. "Quick tour, Guv'nor," my driver observed as I stepped back into the taxi. "Saw what I came to see," I replied tersely, clutching the pouch in a death grip.

Obviously, these days authors don't merely ask their agents what they've done for them lately, but rather, what else they've done for them lately, and I guess just about anything goes.

- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

Are Literary Agents Friends or Rivals?

Are literary agents friendly with each other? Are they mutually suspicious or hostile? Do they steal authors from each other at every opportunity, or do they cooperate with one another? Do they have a code of behavior? Are they too competitive to act collectively?

To the extent that the book publishing business is a pie to be sliced into just so many pieces, and the number of profitable authors is a finite one, I suppose it can be argued that agents are rivals. Yet I don't think most agents feel that way. Unlike some other businesses we can think of, where the survival of one firm is achieved only at the expense of another, there appears to be enough business in the publishing field to enable all literary agents who stay in the game long enough and run their businesses prudently to earn a living and to be gracious toward each other while doing so. Though we have seen bad times in our industry, they have never been so bad that no publisher was buying books. Nor has the pool of potential clients ever shrunk to the degree that a resourceful agent could not find authors to make money with. In short, I don't believe agents lose too much sleep worrying that the supply of or the demand for their products and services is going to dry up.

What agents do worry about is maximizing the earning power of their clients, helping their authors realize the full measure of their talents, and exploiting every bit of financial potential in their work: to put it plainly, making them rich and famous. Obviously, the agent whose clients become rich and famous will become rich and famous too. And, just as obviously, a dissatisfied author will eventually seek new representation.

And it is here that agents sometimes start throwing elbows.

Antagonism between agents flares up over the interpretation of just how loudly, sweetly, and aggressively an agent sings his firm's praises to an author represented by another agent. You might think of it as the Smoking Gun theory of client-stealing: if the author walks in the door of another agency in a state of uncertainty but walks out clutching a signed agreement with his new agent, it can be inferred that something considerably more than a soft-sell occurred behind that door. At least, most of the time such an inference is justified. But not always. Many an author not comfortable with his agent has visited another agency and, with little persuasion, realized from a brief chat and a look around and a sniff of the atmosphere that he has actually been quite miserable with his old agent, but could not admit it until that moment.

However that may be so, the author's old agent is going to strongly suspect that the other agent gave a snow job to his former client. Because I treasure the friendships of (most of) my colleagues, I call them when I become the beneficiary of a former client of theirs to reassure them that I did not actively solicit that client, and to pave the way for cooperation on old business concerning that author. And I have always appreciated it when my colleagues did the same for me. In some cases, when the parting is friendly and by mutual consent, agents will refer authors to other agents.

Most agents have had the experience of having their colleagues refer clients to them. In point of fact, agents work with each other to a much greater degree than they work against each other. I know of a few suspicious, curmudgeonly types who jealously guard their flocks as if their colleagues were wolves poised to pounce on helpless clients and carry them off to their lairs. On the whole, though, agents enjoy each other's company, help each other, are anxious to remain on one another's good side, and to a degree act cooperatively on matters that affect the author community. The Association of Authors' Representatives (AAR), an amalgamation of two earlier literary agents' guilds, was formed in 1991 to better serve that community. I particularly commend to your attention the organization's Canon of Ethics.

Agents call each other frequently seeking advice on all manner of problems: Who do you know at Random House? How do you phrase your option clause? Who's buying westerns? How did you conduct that auction? How did you get that terrific price? What should I do about this problem client?

On occasion, agents cooperate on deals. For instance, if an author leaving Agent A wishes Agent B to handle subsidiary rights to his old books—a situation fraught with the potential for mean-spirited behavior - the two agents might work things out so that they split a commission. Agent A will be satisfied because he doesn't have to do all that much work to earn his share of the commission, and Agent B will be satisfied because he didn't have to sell the books originally.

In other cases, such as collaborations, there may be two agents for two authors and the agents work out the division of labor and commissions. I may have a client with a fantastic story to tell who can't write, but I don't represent quite the right author to team up with him. And my buddy Agent X may have just the right author. After exploring the questions of our clients' compatibility and the division of work and money, Agent X and I discuss just how we're going to cooperate. Am I going to be the principal agent in making a deal with the publisher? If so, am I to take my commission off the top - off the total advance, that is - or do I take my commission only on that portion of the advance allocated to my client? Who is going to handle the subsidiary rights, Agent X or my agency? You can see that unless there is a solid friendship and abundant good will between agents, there is going to be friction, and in potentially fatal doses. Many a lucrative deal has gone down the tubes because two agents couldn't reach agreement on such matters.

An editor once told me about a meeting in her office of two agent heavyweights, one whose client possessed the essential source material for a book, the other representing a star author whose byline and talent guaranteed a bestseller. The discussions went swimmingly until the question of commissions was raised. "Since I brought this project to the publisher and made the deal," said the first agent, "I expect to get my commission off the top. You can take your commission out of your client's share, net after I have taken my commission."

"Uh-uh," said the second agent. "My client is critical to the success of this book. I want a commission off the top too."

The first agent glared at him for a moment, then rose and went to the phone on the editor's desk.

"Who are you calling?" the editor asked.

"My driver," said the agent. And that was the end of that.

- Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.