Do You Need an Agent?

Do you need an agent? The answer could be both yes, and no. Today, with a lot of writers heading into self-publishing, over half the books published go to market without an agent’s help. Even if you work with a traditional publishing house, you can place your book without an agent.

While it’s true that every writer gains some prestige by having an agent, having one doesn’t make you any better a writer. If you don’t produce quality writing, having an agent won’t help you. Agents save editors time and money. Editors know that agents, if they’re competent, weed out the bad material, so basically an agent vets the material for the editor, so whatever an agent sends in is usually given preference in being read earlier than material that comes in “cold." But in no way does it guarantee that the work will get published.

A good agent knows which publishing houses are in the market for what sort of book or project. He or she knows which publisher will release which rights and what the probable bottom line on other negotiations will be. And agents like to deal with certain editors.

A good agent should also be a good friend who can also be objective. He or she will be part salesman, part lawyer, part literary critic, and part father/mother-confessor.  Agents get calls from writers who can't pay their bills, from writers who are drunk or who have been arrested for one thing or another, and from writers who just want to hear a reassuring voice.

Of course, once you place your book or book proposal in an agent’s hands, you may hear nothing for a long time. Busy agents are in constant touch with those who buy ideas, books, movies, scripts for TV miniseries, book excerpts, and subsidiary rights, as well as with their clients. And remember, you won’t be the agent’s only client.

What agents are good for is negotiating through the maze of book contracts and subsidiary rights, both foreign and domestic. These include sales to book clubs, special sales, film and T.V. options, syndication and reprint rights, and so on. Depending on the arrangement you make, your agent may handle all of your works, only your books, or only certain kinds of books. Some agents will tell you at the beginning what they’ll handle and what they won't. If they don't, ask.

You may want to give an agent only certain kinds of writing and sell the rest yourself. Some writers feel the advantage of a large literary agency lies in the specialists who negotiate film or T.V. rights which can be lucrative. But most good agents who have been in the business any length of time will have some sort of representation in this highly specialized area. It's rare  these days for agents to handle magazine articles or short stories. If they do, it’s usually because you’ve made money for them through your books and have gained some notoriety.

Agents also help negotiate solutions to conflicts between you and your publisher. They push for timely payment of advances and royalties. They keep accurate records of your sales. Some agents are also lawyers, or have lawyers in their company, and can review alleged abuses by a publisher, alert a writer to possible problems stemming from something he is about to publish, and act as a knowledgeable go-between for the writer. Some agents act as middleman by finding the right author to write a book on an idea an editor or publisher has.

Should you attempt to publish your book with a traditional book publisher? Even if you manage to get an editor’s okay, you may want to consider getting an agent to handle the contract. Book contracts can be sticky business. In fact, some publishers have been known to send outrageous contracts to beginning writers, who don’t know any better. Book contracts can be 30 pages or more with lots of fine print—important fine print that if not read correctly and dealt with could end up costing you a lot of money in lost subsidiary rights and even fees. A good example is requiring you to create an index for a non-fiction book—something you’ll end up paying for out of your advance.

And while it’s possible to sell a book on your own, you may end up spending a large part of your time doing so—time you could have spent actually writing. It’s for this reason that an agent’s 10 percent is often worth it.

Beyond Book Royalties

The potential sales of a book are your real leverage when it comes to negotiating a contract. Think beyond royalties.  Never ignore the income that may be generated by resale of all or part of your book. Even when the advance and royalty schedule agreed on are better than you'd dared hope, keep your negotiation aggressive—suggest to the editor that he make up for your concessions by giving you a better deal on subsidiary rights.

Subsidiary rights specified in the contract determine, among other things, your share of any money resulting from a resale of the book to a paperback reprint house, book club, or as an ebook. A standard contract usually provides for a 50/50 split between you and a hardcover publisher. But the amendments you're looking for may change the contract to provide you with an increased percentage if the resale exceeds a certain dollar figure—for example, 55 percent for a sale over $50,000 or 60 percent for a sale over $100,000. You may not expect such a bonanza, but neither may your publisher. So nail down your chance at the lion's share from the start.

Every writer dreams of a big sale to the movies or for TV dramatization. While such possibilities are remote or the odds so great for either nonfiction or fiction, neither you nor your publisher may be motivated to bargain for the division of the spoils should there be a miraculous stroke of such luck. But no matter how conservative your expectations, it would be foolish to ignore such possibilities from your  contract negotiations.

It used to be that publishers would give you 90-100 percent of all movie rights without much fuss.
But that was before film producers began asking for the rights to non-fiction books—In Cold Blood is a good example—and short stories such as “Legends of the Fall” and even articles. Today, everything depends on the particular book, short story, or article. If you think a filmmaker might be interested in your work, then you ought to make sure you get your share of the film rights.

Since options for possible film use are considerably more common than outright sales, a good contract will spell out not only the percent of the proceeds that you’ll receive from selling the film rights but also whether you or your publisher will have the right to negotiate the contracts with potential buyers.

You should also follow the same process when negotiating foreign reprint rights. Make an educated guess about the potential market for your work in the countries not covered by the basic contract. Ask for anything up to 100 percent of all foreign sales, and be sure the contract specifies who will have authority to negotiate with foreign publishers.

Other subsidiary rights include permission to use all or part of your text in magazines, newspapers, and  on the Internet. First serial rights refers to publication in such outlets before the book appears while  second serial rights refer to reprint after book publication. You should receive 100 percent of first serial rights.

Most book contracts grant you only 50 percent of the sale price for second serial rights. But when your track record or expertise help gain such a sale, the contract should be amended to provide an escalating percentage for you as sales multiply.

Generally, publishers handle the disposition of subsidiary sales through departments set up to manage them. They especially consider resale for paperback reprint their prerogative, and some may even resent your interference in their transactions. You may or may not be informed of the attempts by your publisher to find secondary markets.

It's important not to duplicate your publisher's efforts to get part of your book into a top selling magazine or to sell the whole thing to a reprint house, even if you believe your publisher isn’t looking out for your best interests.

However, when it's clear that the publisher isn’t pursuing secondary rights as aggressively as you would like, then you might consider pursuing them yourself. If your book has drawn heavily on the expertise you've acquired in the course of writing shorter pieces, chances are you have a network of markets and potential markets for this kind of material. So when your book is in print, you're in a good position to contact other markets that may already know you. Among these may be a publisher who may be familiar with your work but never considered it.

Let's assume your book has received some good reviews—especially on book review or social networking sites. Collect and copy all the good notices as they appear and package them to promote your efforts at resale to magazines or newspapers.

Create a small brochure of quotes from the reviews of your book and mail it along with query letters to a broad range of regional publications. It may bring a number of requests from editors to see a copy of your book, and a good number of reprint sales may follow. However, before randomly sending out copies of your book to editors, see which ones are interested, then mark the section of the book you think particularly suited to the needs of each publication and send them off.

Can You Change a Contract?

Your chance of making a profit from a book or article hedges on the contract you sign for it. Contracts can be as short as a page or as long as 30 pages. Some publishers call them agreements, but they’re contracts, nonetheless. It pays to read them carefully because whatever is included in them is binding for both parties.

Publishers have revised their contracts since the Internet came into prominent use to garner every business advantage. In today’s market, that means electronic sales, among other things. Publishing to their Web sites or publishing your work as an ebook are options they never had before. And with the success of Amazon’s Kindle and Sony’s ebook reader, those options have stepped right out front. This applies both to books and article, but not as much to short stories.

Signing a contract put you into a legal binding agreement . However, it also binds the publisher into the same agreement. Once, a magazine I wrote for sent me contracts for every article. In it was a line about electronic rights. I changed the wording to say I wouldn’t sell them or sometimes, I said I’d sell them for 10-15 percent of the article fee. His editor agreed. The publisher ignored the changes and published them on his Web site anyway. After two years and many articles later, I called him on it, and his lawyer said he basically didn’t have a leg to stand on because he had ignored the original contract changes. The publisher ended up paying me over $400 in back fees.

Another time, a client, who had hired me to write an extensive four-page advertorial for a big-city paper, ignored the phrase in it which said he had only one full edit of the manuscript. This was to prevent him from changing his mind lots of times before publication–a habit of business executives. In the end, he had to pay me 100 percent more because each additional edit cost him $1.00 per word. Again, his lawyer said he didn’t have a leg to stand on.

You can change any of the wording in a contract before you sign it–as long as the publisher agrees. A publisher usually begins with a standard legal contract, then adds whatever details he or she needs for the individual project. A standard contract gives all the monetary and legal advantages to the party who draws it up. In the above examples, these were the magazine publisher and myself. You, as the writer, have the right to change anything in the contract, should you not find it in your best interest.

If this is your first contract with a particular publisher, you don’t have the bargaining power to change much. But as you continue working on projects for that same publisher, your bargaining power increases.

And it isn’t just about your advance, should you be writing a book. Other items that you can change include deadline dates, reversion of rights back to you after publication (used mostly for articles), electronic rights (Web site and ebooks), royalty percentages, subsidiary rights (T.V., film, worldwide rights), and more.

So the next time you receive a contract from a publisher, read it very carefully. In fact, make a copy and underline or highlight sections on the copy that you find questionable. Don’t hesitate to ask for changes. Remember, it’s in your best interest. The publisher already has theirs covered.