With Lying Off the Table, Agents Lose a Key Advantage

It's a sorry day when authors and agents can't lie. If we can no longer fudge sales figures, maybe it's time to turn in our Blackberries and retire to our lavish Hamptons beachfront estates.

That was my reaction to the 2007 jury ruling compelling Clive Cussler to pay a movie company $5 million for (among other claims) inflating his book sales to induce the company to acquire film rights for $10 million. The film was a dud. Now that a judge has ordered Cussler to pay the company an additional $13.9 million in legal fees, I feel compelled to speak out.

It wasn't always this way. In the Golden Age of Agenting (circa 1986-93), the hot power center of the publishing and movie industry was occupied by a legendary cadre of literary agents like Paul Reynolds, Scott Meredith, Freddie Fields, Lew Wasserman and Swifty Lazar, for all of whom the salient virtue was guile. The relations between agents and the moguls of film, television and publishing were more adversarial than they are today, and both sides seized advantages over the other with little obeisance to the spirit of the seventh commandment. The agent who lacked cunning was consigned to the B List and deserved it.

As the twentieth century progressed, these fabulous individualists gave way to a more collegial, collective and committified approach to conducting business, and in time a sort of Geneva Convention of ethical conduct evolved that pretty much characterizes business on both coasts today. The rules and regulations of the powerful Writers of Guild of America govern movie and writers and their agents, and the Canon of Ethics guiding the conduct of literary and dramatic agent members of the Association of Authors' Representatives has replaced the rough justice of that bygone era. Since many of the principles of the Canon were formulated under my administration as president of the AAR, I leave it to you to determine how deeply into my cheek my tongue is thrust as I offer these observations.

One ethical innovation formulated in the mid-'90's was a more stringent code for the conduct of book auctions. The prevailing tenet up to then could be summarized by the phrase "Anything Goes," for there are no licensing requirements for literary agents, at least in New York City where a great many of them practice. Agents auctioning books were not required to reveal to the winning bidder the identity or bid of the underbidder. Many agents succumbed to the temptation to enhance the size of competing bids, or to bluff altogether. Many a winning bidder suffered buyer's remorse after reconstructing (often by simply phoning other participants in the auction) the bids and learning that the highest underbid was miles behind or did not in fact exist.

Perhaps a watershed event in the transformation of book industry rules was an auction in the early 90's for a major novel by an author who has since gone on to become a blockbuster star. As legend has it, the agent told Publisher A that she had a one million dollar offer (a lot of money then, and a lot of money now) from an unnamed publisher, whom we'll call B. Publisher A, desperate to land the huge fish, impulsively doubled the offer without conferring with her editorial board. She landed the fish, to the dismay of Publisher B who had believed the book was in his bag. His dismay turned to something approaching apoplexy when he learned that Publisher A was the head of another division of his own company. The company had been bidding against itself! Despite cries of "Foul!" the agent felt no compunction to adjust the terms of the deal.

What emerged from this event was a condition imposed by publishers that agents must reveal the name and offer of the highest underbidder under penalty of cancellation of the deal or reduction of the winning bid. This condition is reinforced by the provision of the AAR's Canon of Ethics stating that members "undertake never to mislead, deceive, dupe, defraud, or victimize their clients, other members of the Association, the general public, or any person with whom they do business as a member of the Association."

Which brings us back to L'Affaire Cussler. In its coverage of the lawsuit The Book Blog reported that attorneys for the principal of the production company alleged that "author Clive Cussler duped the Denver industrialist into paying $10 million for film rights to the adventure novel 'Sahara' by flagrantly inflating his book sales to more than 100 million copies. 'Cussler and his agent had gotten away with these numbers for years,'" said the industrialist's lawyer. "'It was a lie and it doomed the movie'"

Setting aside the Cussler team's contention that the producers were simply sore losers pinning the blame for their movie's lousy performance (it lost about $78 million) on the author of the book; and setting aside the likelihood that Cussler's books have in fact sold 100 million copies worldwide (though it's impossible to get an accurate count), we have to face the fact that inflated printing and sales figures are a time-honored tradition in the publishing industry. Except during contract negotiations, when each side hauls out numbers and counternumbers, most denizens of the publishing business are complicit in (or at least tolerant of) exaggerated printing and sales figures, for it's a victimless crime, or was until the Cussler case. Think about it: why would an agent challenge a publisher's bloated boast about his or her own client?

But the authenticity of such boasts was dealt a grievous blow by the introduction of Nielsen BookScan in 2001, a more or less scientific system for compiling sales data for publishers. I say "more or less" because the Nielsen Company does not include certain book sales outlets in its data mining, and that bloc of non-reporting stores can account for as much as 30% of a book's performance that doesn't appear on BookScan's database. Nevertheless, it is an accurate enough bellwether to sharply curtail an agent's efforts to produce impressive numbers out of whole cloth.

In short, our options for hyperbole and creative embellishment have been so hamstrung that we've been cornered into resorting to the truth to support the promotion of our authors' performance. What's the fun in that?

Some days an agent can't make a buck, and that is no exaggeration.

Richard Curtis

Copyright (c) 2009 by Richard Curtis