| Agents, Literary Managers,
Contracts, Self-Publishing, and Legal Issues The first step in finding an authors' representative is to write something that will interest the representative. The writing must be good or the subject matter important before anyone will represent you. But, basically, you find a representative exactly as you find a publisher:
"What's a good agent?" is a difficult question to answer. Authors' representatives work strictly on commission and are, as a result, mainly interested in highly commercial "properties." Authors' representatives often help new writers, but most deal only with writers they regard as solid commercial prospects or extraordinary literary talents. Most representatives nowadays ask writers to query before sending the manuscript. This doesn't mean they won't read your work; it means they don't want to read subject matter that doesn't fit in with their own marketing. Since they work on speculation and commission, they have to deal with several (or many) writers at a time, and are more inclined to devote their energies to promoting a potential best-seller. They're usually interested in working with an author who produces continuously. Someone who writes two short stories a year may not be worth taking on. Authors' representatives may urge new writers to handle their own submissions of short stories. And authors' representatives may or may not help you sell articles. Some reputable agents now charge reading fees, deductible from future commission. Authors' representatives receive a commission on everything they sell for you, ranging from 10 to 15 percent, and will nearly always negotiate a contract that will more than justify their commission. A literary manager like AEI performs the same marketing functions as an agent, but also serves as a producer when your work is filmed. Other tips about authors' representatives:
If you decide to let someone represent you, it's a good idea to trust your representative with the marketing for six months. Then ask how it's going. A representative's knowledge of market can be invaluable. But keep in mind that if you have a good book, getting a representative won't be difficult and you won't need a representative to work miracles. Although it's not as true today as it once way, many new writers were published for the first time through their own marketing efforts, not through a representative's. Finding someone who believes in your work as much as you do - enough to go out there and sell it - is rare indeed. Many writers swear by their reps. Many swear only at them. Few agree about them. If you don't feel the need for someone to stand between you and the publisher, you don't need an agent or manager. If you decide to use an attorney, make sure the attorney has had direct experience with publishing contracts. A literary attorney can negotiate the contract for you as well as an agent or manager. One way of getting a representative is to make the sale yourself, then call the manager or agent to represent you in the contract negotiation. Few reps will turn down this opportunity, and you've automatically become "represented." Agents or literary managers are especially useful for working out package deals which include screenplays, TV scripts, and foreign rights. Large publishers often prefer to deal through reps (though a few still deal directly with the authors), and some publishers will deal only through reps. The Writer's Market (see bibliography) offers extended discussion of authors' representatives and rights. Finally, one day, you'll receive a letter of acceptance from a publisher who wants to contract for your book. What do you do now? First, you celebrate. You deserve it! And it's better to celebrate now before you go any further. The next step, if the publisher has included a contract, is not to sign the contract and return it. The next step is to read the contract carefully, make notes about your questions, and call the publisher to ask your questions. If the answers don't satisfy you, consult your attorney (if you have a representative, the offer will have been made to the representative). Don't be afraid to negotiate. Remember that the contract you receive is "boilerplate," meaning that nearly all writers dealing with that particular publisher receive the same contract. The publisher probably expects certain modifications. How much modifying you can do is a product of the situation and your skill - or your attorney's or representative's skill - in negotiating. But never fear that you'll lose a contract because you ask questions or engage in negotiation. If the publisher is interested enough in your work to send a contract, it's negotiable to some degree and the publisher will tell you clearly when you reach the point after which there can be no more negotiation. Unfortunately, most new writers do panic when they receive a first contract, a reaction that goes far to account for writers' paranoia about publishers. The contract spells out the rights and responsibilities of both parties - and if the one you receive doesn't, make sure that it does before you sign it. Generally the publisher obtains rights to the manuscript by agreeing to pay the writer royalties on each copy printed or sold in the edition he's responsible for producing. But variations are infinite. Here I'll spell out some general guidelines and suggest that, where common sense and careful reading fail, you consult an attorney or free-lance consultant who specializes in the field. Generally the publisher assumes the responsibility for editing the book, designing and printing it, and distributing and accounting for it. Note that advertising isn't included in the list. Most books published in this country receive little or no advertising, and if that concerns you, the time to raise the question is before signing the contract. The contract should state how and when the book will appear, and what recourse the author has if the book doesn't appear within the stipulated time. The usual arrangement for royalties is a sliding scale whereby royalties increase as copies sold increase. A typical royalty clause might read as follows: ARTICLE-. Author's Royalties. The Publisher agrees to pay the Author or the Author's duly authorized representatives, after publishing the said work as set forth in ARTICLE-, the following royalties and other payments subject to the terms and conditions herein stated, which royalties and other payments will be accepted by the Author as full compensation for any and all rights, grants, and undertakings provided in this contract: a. A royalty on all copies of the regular edition sold by the Publisher, less returns (and subject to the exceptions hereinafter named) as follows: 10% of the publisher's invoice list price on the first 5000 copies sold; 12% on the next 5000 copies sold; and 15% on all copies sold thereafter. In addition, the contract generally stipulates the author's deadline for submission of the completed manuscript, and often ties advance compensation to that deadline. Keep in mind that if an advance is given upon signing the contract, the deadline becomes somewhat less intimidating to the author. Most advances are in two or three parts; generally publishers tic the payment of advances to delivery of the manuscript. Partial advances are tied to the writer's progress in completing the manuscript. In general, the writer should receive at least one-third of the advance upon signing the contract, less up front if the existing submitted material is skimpy (an outline or a few sample chapters). The contract should stipulate exactly what rights the publisher is purchasing and what financial provisions are made for compensating the author for each of those rights - from hardbound book, to paperbound book, first and second serialization, abridgment, anthologies, book-club sales, electronic rights, foreign rights, television, and motion-picture rights. Some contracts give the publisher an option on a future book by an author . Before signing, make sure the option stipulates a favorable time period for consideration of a new project, to make sure the publisher doesn't hold up the project indefinitely. The more you're published, the less you will want any kind of option deal on a future book until that book is under way and ready for its own specific contract. Self-publishing and vanity publishing are different from other forms of publishing and are not to be confused with them. Vanity publishing is a pitfall to be avoided; self-publishing is an honorable tradition and testimony that writers believe enough in their own work to publish it themselves. Edward Fitzgerald's Rubaiyat, Thomas Paine's Common Sense, William Blake's poems and drawings, Bartlett's Quotations, D. H. Lawrence's Lady Chatterley's Lover, Mark Twain's Huckleberry Finn, and Robert's Rules of Order were all originally self- published; self-published writers also include Mary Baker Eddy, Percy Bysshe Shelley, Lord Byron, Edgar Allan Poe, Zane Grey, and Carl Sandburg. Bill Henderson's The Publish- It-Yourself Handbook, listed in the bibliography, is an excellent guide to self-publishing. The best warning I know of against vanity presses is their own advertising and contracts. A vanity press is a subsidy press that operates unethically, though legally, by charging you two to three times more to print your book than you'd pay if you printed it yourself. Vanity presses operate by phoning or advertising for hopeful authors and promising to treat them better than commercial publishers treat them. Although they refer to themselves as "publishers," if you keep in mind that publishing means to "make public," they are not publishers but printers. Where they fall short is in distribution and marketing. Bookstores normally don't stock vanity- press books, nor do major book-review columns review them. If you succumb to vanity publishing, you have allowed your own vanity to take advantage of you. Don't worry too much about "legalities," both in writing and in publishing. Most of the time, for most writers, legal matters play a very small role in their lives and careers. With that preliminary, here are some things to keep in mind. "Permissions" is the legal term for the act of getting permission from the copyright holder to include, in either whole or excerpted form, previously copyrighted material within your own work. Permissions can be expensive and troublesome, so if your work is heavily dependent on them - as anthologies are, for example - be prepared to deal with their cost and complications. It's a good marketing idea to find out in advance if and where permissions can be obtained because that's one of the first questions the publisher to whom you submit your work will want answered. The publisher will also want to know how much they cost, although publishers tend more and more to have the writer bear the cost of permissions (partly to discourage writers from overusing them). Quoted materials from people interviewed always require written permission. When requesting permission from a copyright holder (usually a publisher), send that person or, in the publisher's case, the "Permissions Department" a letter similar to the following:
If you don't send the copies and an indication of the way the material will be used, you'll be asked to do so by return mail. If you do, you'll generally receive a "form contract" with boxes checked,, giving you permission: 1. free; 2. for a flat fee, as stipulated, though you can sometimes negotiate; or 3. for a percentage of your royalties as stipulated here (you can and should negotiate). Once the negotiations are concluded and both parties have signed the permissions agreement (which isn't always a formal negotiation), the copyright holder will send you what's called the "permissions" or "credit line," to be printed in every copy of your work, generally, though not always, on the copyright page. The credit line must always be printed exactly as the copyright holder stipulates. The laws today are both ambiguous and changing when it comes to such matters as libel and defamation of character. In general, it's a good idea to proceed cautiously by following good research principles and making absolutely sure that, for every item of information you include in your nonfiction book and for every character or event in your novel, you can trace your source with precision. This will enable you or your publisher at any point in the process to ascertain the exact legal status of all questionable items. But in either case, the writer's best protection is preparation. It's no longer true that lawsuits are directed only against publishers. Nowadays they're directed against anyone and everyone who might possibly provide money to the party suing. A libel suit must still prove malicious intent, so it isn't as great a risk as most unpublished writers think it is. The general rule here is accuracy and truthfulness. Public figures are in the public domain, but that doesn't mean you can say anything you want about them. You can say anything that's true and anything that's not damaging. But the rule is to be careful when you approach damaging statements , doubly cautious in ascertaining the accuracy of your sources You've got all you need to begin. Now it's up to you to harness time for your dreamwork. When married to your Managing Editor, Time will prove the most inspiring, most invigorating, and most enduring Muse you can imagine. Taking only one step a day for your publishing career adds up to roughly 200 steps a year - with weekends off. Sooner or later, the industry will admit you and you'll be part of the network that finds it harder to let go than to welcome. Until that moment of welcome arrives, your alliance for success will be your unswerving belief in your career, and the determination to make your dream of publishing come true. |
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