Do you need an agent?

There is no doubt that publishing is changing. E-book sales continue to grow by triple digit percentages each quarter. More and more authors are wading into self-publishing, something that used to be the kiss of death. Imprints are being killed off by publishers or merged with others, even as publishers are looking at mergers with other publishers. Caught in the middle of all this are the agents who must be feeling more than a bit shell-shocked as they try to figure out what their role will be in the new world of publishing.

Several of us at MGC have written about agents before. Like many writers, I’ve tried to get an agent. I’ve worked on my pitch and followed guidelines to the letter. I’ve had the infamous three minute later rejection — from an agent who said she was not only taking new queries but that it would take at least two weeks to hear back from her. My only conclusion: she was putting out false information and sending auto-rejections. There was no way she could have received, opened, read and responded to a query in three minutes, especially not when the query was for a novel of the sort she was asking for.

I’ve had the agent read something I sent, then make suggestions — several times — and then forget about my book until I removed it from consideration. I’ve also had agents show interest and give good comments and suggestions on my work. Nothing came from these, for various reasons, but these agents at least had the business-sense to keep in contact with me until one or the other of us decided no business relationship would be formed.

So, yes, there are a few agents out there who, if they offered representation, I’d at least give it serious consideration. Why? Because I’d like to have the option of going with a major publisher as well as with smaller publishers and self-publishing. Those major publishers, with very few exceptions, require submissions to come from agents and not directly from an author. But it isn’t something I’ll put my career on hold for.

What brought all this up was an article I read last week on the role of agents in publishing today. I’ll let you read the article for yourselves. No, I’m not going to do a paragraph-by-paragraph shred. For one, I’m not in a shredding sort of mood today. I know, I know, you’re surprised. (yes, that is my snark meter going off) Actually, I’ll admit that Tim Bates, the agent in question, raises some good questions. Unfortunately, from what I’m hearing, Bates may be the exception and not the rule.

Can you answer the following questions?

Should you sell world rights in all languages to your UK publisher, or sell the rights directly to individual foreign publishers? What is the industry standard author share for sub-licensed audio rights? What royalty can you expect for special sales? Is 52.5% a reasonable starting point for high-discount royalties? How should you word an out of print clause when the usual threshold of 150 or so copies in the warehouse is meaningless in a digital era?  Is it sensible or fair to sell e-books for 20p? Should my publisher control the merchandising rights to my books?

My first thought as I read through these questions was that they don’t really apply to self-published authors. Sorry, but there is a stock contract we agree to with Amazon, BN, Smashwords or Kobo. That means we agree to certain royalties, pricing levels and that we won’t sell our titles for less anywhere else. A couple of these outlets let us choose where our titles will be sold — whether it is to select online outlets or countries. But merchandising, audio, special sales, etc., don’t come into play.

So, why would the self-published author need an agent?

By second thought was that even if I was signing a contract with a major publisher, I’m not sure I’d leave it to my agent to determine all that — much less reversion of rights, non-competition clauses, etc. Why? Because these are legal obligations and agents aren’t, on the whole, attorneys. No, I’d want an IP attorney who is experienced in publishing law to make those decisions.

But there’s another reason why I wouldn’t necessarily want an agent advising me on this. Why? Because I’ve heard from too many authors how, when they’ve questioned a clause — say the non-competition clause — agents tell them to suck it up, this is industry standard. Say what? Someone who is supposed to be representing my best interests isn’t willing to fight for my right to shop my work around to the publisher who will pay me the most for it? When an agent refuses to try to strike the non-compete clause, that’s what she’s doing. She is agreeing to tie you to a publisher that knows it doesn’t have to offer you as much as it might if you could shop your next book around.

I’m not saying you shouldn’t get an agent if you want to be published by a legacy publisher. As I said earlier, almost all of the major houses require it. But you don’t need an agent if you are going to self-publish — and, if you already have an agent, be sure you read your contract with them very carefully. I’ve been hearing of late how some agents are claiming their standard percentage of sales from self-published works they had nothing to do with. Why? Because their contract reads they get their cut on all your titles, no matter who publishes them and how they were “sold” to that publisher.

You also don’t need an agent if you are going to go with most small to mid-sized publishers. Check their guidelines and see what they say.

Most of all, if you do have an agent — or if you are offered representation by an agent — don’t sign a contract with them without having an IP attorney look at the contract first. Why? Because some agents are now including a clause where they maintain their cut of a title even if you fire them. Yep, that’s right. You can fire you agent for cause and there is the potential that they will continue to get money from that book they sold not only for the term of the contract but for the length of copyright.

Will literary agents fall by the wayside? Not as long as traditional publishers continue to exist and require an agent for manuscript submission. But agents are as worried about the changes going on in the world of publishing as are publishers. Because of that, some of them are changing contract terms so writers may as well be working for them instead of the other way around.

Remember that non-compete clause I mentioned regarding publishers, a lot of agents have similar clauses. Say you write in multiple genres but your agent doesn’t represent all of them. Used to be, you could have one agent who represented your mysteries and another who represented your children’s books, as an example. Under some contracts, you can’t do that any longer. You either have to rely on your agent to try to place a book of a genre or type they don’t normally deal with or you try to place it yourself — and you may still have to pay your agent his usual fee, or you self-publish and, oops, have the same result, or you don’t write it at all. How does that help you?

I guess what I’m saying is this: first, have an IP attorney read any publishing-related contract you are considering; second, remember the chain of command. You are the creator. The agent represents you and your best interests, not the other way around. Third, if you want to self-publish, go for it. It is now a viable option and not the kiss-of-death it once was.

Most of all, write. If you don’t write, none of this will matter. Now, taking my own advice, I’m off to write.



    1. But they are so much fun, Pam — if you love rollercoasters and don’t worry about whether the tracks are finished or not 😉

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