It’s a bad sign if…

A rather enigmatic Tweet by Dean Wesley Smith pointed me toward a Tweet by a literary agent, Terrie Wolf. Allow me to quote:

Terrie Wolf ‏ @AKA_Terrie
Authors, listen up. Unless you’ve passed the bar – don’t argue contract law with agents/editors. We get it. Promise. #pubtips

Here’s a big #pubtip: Any time someone with a financial interest in a deal suggests that you don’t need to get lawyers involved, or that you should trust their read (they being a non-lawyer) on a contract, run. Fast. Far. Nope, not far enough. Why are you stopping? Keep running. Like the wind.

Contracts mean lawyers and lawyers are like guns: if the other side has one, you sure want one (or two, and much bigger caliber). Not because, in this case or any other, you’re expecting to engage in a battle. Absolutely not. Because lawyers have trained their entire adult lives to be able to negotiate the arcane language in a contract. Phrases that mean nothing to laypersons—and even the best agent is a layperson in this regard—can be critical, based on a precedent set yesterday. Agents are likely to be current on the business—we hope so anyway—but I don’t expect the same to be true of contract law, where a case outside publishing sets a precedent which alters one contract can change them all.

And the idea that an editor should be trusted vis a vis a contract? Remember, editors work for the publisher, not the writer. Editors are not lawyers. Publishers have a legion of lawyers who write up the contracts, and your editor may have no say in which of the myriad contracts you get offered. Sure, the editor may negotiate piddling little details, like the number of author copies you get, or deadlines—things which really don’t matter—while it’s company policy that decides what your split on ebooks or how your advances will get paid out.

Publishing contracts are notorious for having wordage that doesn’t apply. Even in the 90s the clauses about authors being able “purchase the printing plates” after a book went out of print showed up, despite the fact that no one was using that sort of printing plate any more. Heck, my mid/late 90s Star Wars® contracts demanded I turn the book in on disk and include two copies of a physical manuscript! An agent counseling writers not to argue contract points with an editor is downright scary.

I don’t want to shift this into a discussion of whether or not writers need agents, but looking at the above quote, I wonder if some agents are needed. Authors must remember, agents work for you, not the other way around. If I want to discuss/whine about/argue points of contention in a contract, that’s what I get to do. I’m the boss; and if I’m not happy, nobody is happy. The employee’s job is to explain things to my satisfaction or decide I’m not worth the trouble and quit.

Or, in this case, say to me, “Good questions. I don’t have a law degree, so you should consult an IP lawyer to get these things ironed out.”

Bottom line for all authors is this: without us, without our practical application of imagination, skill and hard work, agents have nothing. Editors have nothing. Publishers have nothing. Booksellers have nothing. Because of that, there is no vice in our wanting to make sure that contracts say what we’re told they say, and will do what we are told they will do. Any agent or publisher who will counsel you to abandon that point, clearly isn’t working for you.

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20 Responses to “It’s a bad sign if…”

  1. That’s scary. Yes, some agents might know contract law, but not all and not the way a lawyer does. Also, while it’s true that the agent works on the author’s behalf, the agent doesn’t get paid unless/until the author signs a contract, even if it’s not a great one.

  2. Thank you for this post! I saw that tweet yesterday, and I was annoyed at the level of condescension in it. Thanks for your response, pointing out everything that was so wrong about the original message.

  3. I am a former client of AKA, although I was not represented by Ms. Wolf. When my agent retired, I had the option to have her take over my work. Instead, I chose to sever my ties to the agency. I believe that among the many mistakes I’ve made finding my way through the writing and publishing business, this wasn’t one of them. All of my successes so far have come through my own efforts instead, although to be fair, I do have a new agent now representing some (not all) of my work. I whole-heartedly recommend having a contract attorney look over publishing contracts, whether or not you have an agent. Like Mike said, they will hopefully be current on the knowledge-agent Kristen Nelson comes to mind as a voracious contract specialist-but there’s no substitute for the specialized legal knowledge.

  4. “don’t argue contract law with agents/editors.”

    If I had analyzed this part of the tweet (which I didn’t, surely) I’d find it very interesting that agents and editors are being lumped together. Like Mike says, the agent works for the writer… and yet this whole liberating epub thing has both agents and publishers in the same boat.

    Is this another step toward the scary alliance between agents and publishers?

  5. Lumping agents and editors together … aren’t many editors young, underpaid recent graduates from college? I had a bunch of friends who became editors in NY after graduation (I went to Bryn Mawr). As English majors, I can’t imagine they knew much about contract law–any more than I did as an anthropologist.

  6. As an attorney whose main duties include writing employment and purchasing contracts, I always find it interesting that non-lawyers think they understand all the intricacies of contract law. This thinking is particularly peculiar within an industry that thrives on the complex nuances of the written word.

    I suspect these are generally the same people who go to WebMD to diagnose their lung cancer.

  7. I don’t generally like to curse in public venues, so I’ll just say … that’s the biggest pile of #%$*#(@!!! I’ve heard in a long while.

  8. I thoroughly believe that any contract offered by a publisher should be reviewed by a lawyer specializing in book contracts. The editors are looking out for the publishers interests and that only. You could sign something you do not fully understand and never know it.

    No one works as hard as you do to pitch your work. A literary agent needs to work hard to place your work. Unfortunately, unless you are a celebrity with connections, you need a literary agent to pitch your work to major publishing houses.

    In order to represent your work, the literary agent should have your best interest in mind. They should NOT be bothered when you ask for updates on talks with publishers or anything else. They should treat you like you are their only client.

  9. Of course you don’t argue contract law with editors/agents.

    Even if you have passed the bar.

    Odds are very good they are not qualified to argue contract law either. So both of you: Don’t.

    If you think there’s a need, there probably is (and I could discuss what I think wrong with that, but won’t). I’ve had lawyers involved in contracts between me and my parents — not because of distrust, but to make sure that everything says what we think it says.

    Even if you don’t have to worry about Machiavelli, Murphy waits in the wings.

  10. Dear Agent – I’m going to assume you are sitting at a bar – because you have to be high to suggest that I don’t need a lawyer to handle my contracts.

  11. I just want to add something about agents who are also lawyers.

    If the agent/lawyer inserts an agency clause in the contract and gets paid a percentage of the contract, the person has a financial interest in the contract and there is still a subtle conflict of interest. This would be like a lawyer writing a will and also being a beneficiary of the will. So even though your agent/lawyer may actually understand the subtlites of contract law, it seems to me the conflict of interest is still a problem.

    I am a member of the California bar, and a writer. What shocked me about that agent tweet was her comment that agents “get” contract law. First thing I thought was: Darn! I wasted all that money on law school, when all I had to do, to understand contract law, was just become a literary agent!

    If I recall, my contracts class was rather difficult, and the contracts part of the California bar was also difficult — but perhaps I found it difficult because I am not a ilterary agent (insert grin)

    I suppose agents also “get” copyright law. I found the copyright code rather complex, but it was probably hard for me becuase I’m not a literary agent. (grin again)

  12. The wonderful thing about all this is that writers aren’t staying silent as much when boneheaded things like this are said. True, there a still plenty around who will accept it, wanting to be taken care of, believing the agent as their parent. Who will think it’s how they should behave. A few years ago, there would have been either silence, or only responses of “Thank you for the advice!”

    Today, more and more are responding as business people and calling it the bad advice that it is. It’s a great to see those voices. We need more of them. So, thank you for the post to broadcast how bad advice it is. Hopefully it will make the difference for a few writers who might have otherwise viewed the agent’s advice as good.

  13. I can think of few pieces of advice more useful for young authors clawing at agencies rather than publishing their own work than this: don’t have anything to do with Terrie Wolfe.
    She does way worse than reject you: she will suck you in for months of wasted time and hours of wasted phone conversations before you figure out she’s not capable of selling your work. This was not only my own experience, but that of several other “Wolfe survivors”…all of whom now have books in print.
    The idea that she can give you better advice than a lawyer borders on insane.
    DON’T got there.

  14. I think we need to remember that at the end of the day no one is as concerned for our interests as we are and we should never assume otherwise. Authors need to be responsible business persons and educate themselves enough to be able to protect their interests.

    Thanks for the reminder.

  15. Heh, the last time an agent delivered a contract to me, the first thing I did was have an attorney vet it and send it back. Surprised the hell out of everyone that some writer would spend $500 to have a contract worth thousands revamped to level the playing field.

  16. I’ll confess to being naive early in my career, but I lucked out and ended up with an agent who really was looking out for me. She’d urge me to go over my contracts, but I trusted her judgment. I can see here that not all agents can be trusted.

  17. As far as I’m concerned she can take a flying leap. If I feel I need a lawyer to look things over, I’m getting a lawyer. Period.

  18. Great post, as usual. The comment was so patronizing I was speechless. Glad you weren’t.

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