Thursday, August 28, 2014

On Agency Clauses

I recently read an article in the latest SCBWI Bulletin (you must be a member to view/read) about agency clauses in contracts.

A typical agency clause will read something like:

Author authorizes Agent, located at (ADDRESS), to collect all gross sums of money due under this Agreement. Any receipt of such sums shall be a good and valid discharge of Publisher's obligations to make payments to Author. Agent is empowered to act on behalf of Author in any and all matters arising out of this Agreement.

In the article, the author addresses why this is problematic, and recommends either not having this clause, and having all money go directly to you, or modifying it to be revocable at any time, so that if you part ways with your agent, you can have funds go all to you or your new agent.

For the record, I HIGHLY respect SCBWI, and I HIGHLY respect the author of the article. The intention behind it is very good, and authors SHOULD think about what they're agreeing to; it IS problematic if you've signed with a "schmagent" - someone who disappears, along with your statements and royalty checks, leaving you high and dry.

I shared my post with Sara Rutenberg, the author of the SCBWI article, who pointed out: “Unfortunately, there are so many agents out there who are unscrupulous. The column was written in response to a number of people who found themselves in [the position of being with an agent who is not remitting timely or disappears]. It is critical to [discuss the agency clause] up front, or people will not feel comfortable taking actions needed to protect themselves.”

I wholeheartedly agree with that sentiment. And, her article was really intended to address these schmagent situations. However, most agency agreements, including those from big, big agencies, do include language on agency clauses which can't be modified, and I think it would be a mistake to feel that you are getting a bad deal from, or not sign with, an agent or agency that insists on this language.


There are several issues with direct payments. If you have your royalty statements and payments coming to you, instead of your agency, you would be responsible for remitting your agency's commission and, at the end of the year, also remitting a 1099 to that agency for what you paid them. I actually can’t imagine that any foreign publisher would be ok sending payment to the author, instead of the foreign co-agent who brokered the deal – but, in that case, you'd be responsible for remitting payment to your agent, your co-agent, and dealing with any tax withholdings applicable to the specific country's laws when you pay your co-agent (and then have to remit a tax form to them, too, at the end of the year).

You would also be responsible for sharing statements with your agent(s). Why? We need to check them! Think mistakes never happen? Think again!! It is part of my job to monitor any statements that come in, to be sure everything is calculated and reported correctly.

Second, there’s a saying in publishing: money should flow TO the author, not FROM. This saying arose out of troubling scams, and still holds true today.

Third, while it would be LOVELY if I could woo and entice J.K. Rowling away from her agent and suddenly be able to collect a commission on her previous contracts...that's just not the way it works when you split with an agent. Ethically, and typically, contractually, the agent who sold the book is due the commission. Not the new agent you sign with. Why? Because it’s that old agent who did all the work to get that contract. Me taking a cut of J.K. Rowling’s previous contracts, when I’ve done nothing to earn it, just doesn’t add up to me. Even in the situation above, where an agent leaves an author high and dry and disappears, I wouldn’t feel right taking a commission, because I didn’t sell the work.

Now, the new agent may be able to handle unsold rights - like translation, audio, etc, for the book the previous agent sold. And your new agent, with your permission (you must inform your previous publisher you have a new agent) can of course still help to protect your rights and look into issues with that previous contract (though, if this ever happens, I ALWAYS start with the agent who sold the book, assuming they weren't a schmagent, before reaching out myself).

If you do try and amend your contract with a publisher to have your new agent collect funds instead of your old, or have all payments go to you, they will likely require you to provide proof (or contact the previous agent to verify) that you can do so. This is because most agency agreements do, in fact, specifically clarify that any works sold under that agreement remain commissionable by the agency, whether you leave or not.

That's not to screw you over. Again, it’s to protect the agent from doing the work of editing, selling, negotiating the book, and troubleshooting...and then suddenly be SOL if you decide to leave. That work isn't negated because you left. Any future work is - and the agent shouldn't ask for commission on work they don't represent.

However, as Sara told me, “what we are all after is protecting the author- and if an agent is not remitting timely or disappears, there has to be a way to address this.”

I agree. And there are ways to still protect yourself.

First, and most common, is with split payments. I certainly work with publishers when I can, at an author's request, to have our commission sent directly to us, and then the rest to the author (15% to agency, 85% to author, in other words). And you can ask your publisher, even if you already have an agency clause, to amend to split payments later. But again, if you do, they’ll ask for that proof your former agent gave the ok, or proof the former agent can’t be found. It is a PAIN to get this done. Think hoop after hoop after legal hoop. Don't go in thinking it'll be a walk in the park.

You can absolutely discuss the split payment option with your agent upfront. However, keep in mind that not all publishers will agree to this (particularly in the case of subsidiary rights), which is why an agent may not agree to contractually be obligated to secure split payments for you.

The second option, post-contract, is to obtain legal representation and fight. Which is a pretty sucky thing to have to do. The Author’s Guild can help with this; but in sum, you’ll have to either settle with your former agent or in court, if you had an agency agreement between the two of you, about that former agent no longer receiving commission. I don’t honestly know of any cases where this has occurred; usually, when legal battles like this pop up, the author and former agent settle on the split payment option, and the publisher amends the contract accordingly. It’s a mess. Which is why I can understand Sara’s article about addressing this upfront.

But, as I said, this isn’t something every agent will agree to, even if discussed upfront. And that doesn’t have to mean the agent is a schmagent, or that you’re getting screwed. The agency clause is VERY common. At the end of the day, if you have doubts about whether or not you can trust your agent to handle funds or statements - why are you signing with this person?! I think the true warning, and really, what Sara was after too, should go against schmagents, rather than the agency clause. You sure as heck should have done your research to make sure the agent offering rep is legit.

The agent-author relationship should be one of trust. If you're worried your agent is going to, or currently is, screwing you've got issues that need to be addressed immediately, either in conversation with your agent, or by parting ways/not signing with that agent.

ETA: SCBWI did post a correction on the Bulletin.

Wednesday, August 27, 2014

Love/Hate Wednesday


This bookseller's perspective on author interaction etiquette. Good points here. I am TOTALLY guilty of facing out client books. Now I feel shamed; and you know what, for a good reason - it IS much better to make friends with your local booksellers and garner support with honey rather than treachery!


I needed a new section this week, because I wanted to finally touch on a subject that's been cropping up: books as general product.

The biggest battle right now on this is between Amazon and Hachette; if you need a refresher/sum up on that battle, read this. Today, I read a post in PW about removing the suggested pricing from book covers (in order for retailers to have more flexibility to determine pricing and margins).

Part of the argument for both of these situations boils down to treating books like toilet paper. Ok, maybe toothpaste. Or socks. (You get it; just a manufactured product).

But. The thing is. There's so much more behind books than the paper and ink (or screen). It's really broaching into the question of creativity: what's it worth? Does the medium it's expressed in really make a difference? Can you really force it into the same box as a pair of shoes? (And even then, a designer has the right to charge whatever they want for the shoes - whether you buy it or not should be up to you *coughneutralityslippingcough*).

What do you think?

ETA: I don't mean to simplify or lump together either of these situations, by the way, just point out a thread of similarity behind both, and how I'm feeling about that thread. :)

Saturday, August 23, 2014

On Sharing: the Magic of Books

When I was in fifth grade, my English teacher decided to dedicate an hour a few Friday afternoons to reading aloud to the class. She purposefully chose books that she enjoyed, that didn't necessarily serve any educational purpose. Just entertainment.

One of the books she read aloud haunted me for the rest of my life. It was HILARIOUS and CLEVER and FRESH and BRILLIANT. Up to fifteen years later, I could recite the synopsis to you and simply GUSH about this book.

Which I totally had forgotten the name of.

Still, like I said, I was haunted. I NEEDED to figure out what this book was. Every time I thought I might remember a new clue on the title (since googling what the book was about didn't get me anything) I would write it down. And search.

Yesterday, I was randomly looking something up in an educational textbook with a very familiar image. IT WAS FROM THE BOOK!!

And like a good textbook, it cited its reference and source for that image.


You can't imagine how excited I was TO FIND THIS BOOK!!!! And it was STILL IN PRINT. AND I COULD BUY IT. OMG. *dies*

What's the moral here?

Nothing grand; at least, at a surface level.

But my English teacher shared something precious with me; she introduced me to an author who haunted me for the rest of my life. To a work that I simply HAD to track down and find.

She created a fan. A reader. A BUYER. YEARS later.

Authors: share your books. Read aloud to children. Whether in a classroom, your local library, or to your grandchildren - read to them. Inspire them to be haunted by words for the rest of their lives.

THE BOOK, in case you're wondering:

Motel of the Mysteries
By David Macaulay

Friday, August 1, 2014

Common Picture Book Mistakes

I've talked plenty about novels; I want to focus on picture books today!

It may be hard to imagine revisions on a 500 word (or less) manuscript, but by golly...picture books go through more revisions, sometimes, than novels! Every word counts, when you have space for only a few.

It's difficult to say what exactly gives a picture book that SPARK; that something special that resonates with readers young and old. But I can offer up some of the most common mistakes that I see in picture book submissions, to help you find that spark!

1. Too didactic

I.e., too educational and message-driven. While yes, most picture books boil down to basic themes, and many have overarching morals, they aren't the focus or purpose of the book. A child isn't going to want to read WHY STEALING IS BAD! But they sure as heck enjoy I WANT MY HAT BACK.

There are, of course, educational picture books; these tie into specific school curriculum (Common Core) for the intended age group - and aren't any of the below!

2. Too long

Picture book texts are getting shorter and shorter; you should aim for no more than 500 words, unless you're writing a picture book biography, in which case, I'd aim for no more than 1200 words, including the Author's Note/End Matter.

3. Non-professional illustrations

Can't draw? Don't even try! It's not necessary to have illustrations prepared in order to sell a picture book. If you aren't an illustrator and are debut, the publisher will want to pair your text with an illustrator with a track record, perhaps some awards, to help promote the book.

4. My daughter/grandson/local library kids love it!

I don't care. No really; I know that's harsh, but I'm not selling it to them. There are lots of stories that kids love that aren't translatable to a wider market. And guess what - kids aren't actually the end buyer. Parents are! Librarians are! Your child or local children may LOVE the story about your dog finding a kitten - but is that just because they've met your dog? Like the way you tell the story? Will ALL children love this story, especially when you aren't telling it? Perhaps; but it's also possible it will be...

5. Too familiar

Before you press send - make sure you've done your research. Are there already ten billion stories about tangled, messy hair? Yep. Are there already a zillion ABC and counting books? Yep. How about books about bunnies? And pigs? Yep. Yep. Or on the opposite end - are there NO picture books like yours - and why not? (i.e., if you're writing an erotic picture book, uh...wrong market, buddy). The picture books that stand out are FRESH; even if they boil down to the same basic themes that all the rest do, it's the fresh, unique spin on it that makes it stand out.

6. Forced rhyme

For some reason, a lot of authors seem to think that picture book text has to be rhyming. This couldn't be farther from the truth. Rhyme is actually one of the toughest types of picture books to sell - and that's because it's very difficult to do RIGHT. It's never, ever a good thing when I'm cringing as I read because I can totally tell that next line was forced into the narrative just so the author could have something that rhymes with the word above. And you have to pay attention to rhythm with rhyme, too - syllables, how it sounds when read aloud. If you're writing, and struggling to find words or phrases that go in the direction you want - stop. Try writing it without rhyme!!

7. Too slight

"Cute" isn't good enough. "Sweet" isn't going to cut it. It has to be AMAZING. It has to leave an impression; you can't just smile when you finish reading and forget about it a week later. It has to resonate around in your brain and get you excited. You will remember it and be able to recount the narrative even if you've read it only once, over a year ago.

8. No over-and-over-again readability

This ties into the above; is your story timeless? A story that can be read over and over again and be just as fun and surprising the fourth, fifth, eighteenth time around? I would liken this to movies; some you go to, you enjoy. Will you buy the DVD? Is it a movie that you'll want to watch over again, invest hours in, even though you know what happens?

9. No take-away

As above, the book should leave an impression. Something that you take away long after the pages are closed; does it leave your child feeling safe? Does it leave a lingering moral reminder or a new idea or inspiration, tucked discreetly behind the lasting joy of the story?

10. Too complicated

Don't try and throw everything and the kitchen sink into your story; simple is better. Find a focus and build from that; too many themes, too many characters, too much noise just leads to confusion. Keep your age range in mind - a two year old isn't the intended market for WHERE'S WALDO!

11. No narrative arc

Finally, your story should still have a beginning, middle and end. Even a concept book introduces and concludes. Is your story just a series of vignettes? Or several shorts in one? There should be an over-arching theme and narrative.

I realize that there are classics that break these mistakes. THAT DOESN'T GIVE YOU FREE LICENSE TO MAKE THEM. The bottom line is that yes, there will always be exceptions, but a) when were those exceptions published? In THIS market? and b) why make your journey harder than it has to be by trying to be an exception?

The next time you meet with your critique group, don't just ask them for impressions or critique; ask them to specifically tell you if they think your story falls into one of these categories - and why? Use that feedback to strengthen the text - or to find the strength to shelve it, and write something amazing.

Not every story will leave the same impression; picture books are just as subjective as novels. But, more people than not will love it. And that's what makes it work.