Tips for Writer/Agent Negotiations

Okay, you’ve decided that you just can’t be successful as a writer unless you have a literary agent representing you. You’ve found one, but just because you're excited someone wants to represent you doesn't mean you should let them take advantage of you. You still must watch out for your own interests. Not all agents are as professional as they should be. Before you sign on the dotted line, be sure to follow these tips while you’re negotiating your contract.

First, find a reputable agent. You’re first thought is: Aren’t all agents reputable. The simple answer is no. Reputable agents generally don’t require payments of any kind when you sign a contract with them for their services. They also don’t charge fees to read your work. And they don’t sell your work to vanity presses. But most importantly, they’ll readily share with you the names of other authors and projects they’ve represented.

Reputable agents don’t charge excessive commissions. Today, the standard is 15 percent for book sales, although you could pay up to 20–25 percent for foreign sales, and 10–20 percent for movie, TV and theatrical sales.

Most reputable agents won’t try to cash in on your speaking fees—they really aren’t entitled to, unless they were directly responsible for getting you the engagement.

Control your agent-related expenses. Ideally your agent won’t charge you for making one or two copies or standard postage, but only for unusual expenses, such as large numbers of copies and priority mail, express or courier services. You agent should work within spending limits that you set and not spend anything over a fixed amount, say $100–$250, without your approval.

Some agents demand that publishers pay them your entire book advance directly, then they’ll send you your share. In most cases, a publisher will send you your 85 percent and the rest to your agent to cover your commission fee. The first incidence can pose a risk. If your agent gets paid your entire advance and then goes bankrupt, you’ll get nothing. Insist that your publisher pay you the entire advance directly, then you pay your agent.

Although most publishers still report and pay royalties semi-annually, typically within three months after the semi-annual period ends—the check for the royalty for a book sold in January will be paid in late September. If your agent insists on receiving all monies owed to you by the publisher, he or she should pay you promptly upon receiving the funds—ideally within 10 days, but no longer than 30.

Above all, you should expect your agent to be honest in their dealings with you., but don’t take that for granted.

Do Beginning Writers Need an Agent?

People generally look for the easy way out on most things. And writers, especially beginners, are no different. So it’s no surprise that many beginning writers believe that in order to succeed in publishing, they have to have a literary agent.

The publishing world is a mess at the moment. It’s no wonder beginners feel that they need help to navigate the confusing maze of publishers and editors. But does having an agent guarantee they’ll get published? Not necessarily.

In the first place, many literary agents won’t even consider taking on beginning writers. And those that do usually are a bit shady in their dealings and take advantage of a beginners ignorance in business matters.

At this point, it might be a good idea to find out just what an agent does for a writer. Essentially, when a writer teams up with an agent, he or she is basically outsourcing the marketing and promotion of their work. A highly successful writer, usually those writing and publishing books, needs someone like this to help with promotional chores. This leaves more time for them to write. But a beginning writer has not such demands on their time. Many beginners usually have just written their first book and are desperate to get it published. They see an agent as an express method of accomplishing this.

A big problem with many agents is that they have a stable of editors and publishers with whom they have close relationships. They rely on these people to place their clients’ work because of past successes. They do this at the exclusion of any other publisher that could possibly want to consider a book, for example.

One writer’s agent sent a book proposal around to 28 different publishers. Each politely declined to publish the book. When he had exhausted his list of publishers with whom he had relationships, the agent stopped sending out the proposal. In the end, the writer never did get his book published.

Another writer worked successfully on a couple of travel books through an agent and a particular publisher. The agent took a hefty 15 percent of his advance as her fee. After completing these two books, the writer decided to try his hand at negotiating himself. He got substantially more money than the agent was able to get him and didn’t have to pay her the 15 percent fee. The writer went on to publish two more books with the same publisher and had the firm consider two more book ideas.

So it comes down to this. Beginning writers are caught between a rock and a hard place when it comes to publishing their first book. They have no credentials and think that having an agent will miraculously give them some. Also, agent generally don’t promote articles or short stories. The low fees paid for them can’t compare with the advances paid for books. And, let’s face it, 15 percent of not much money isn’t a whole lot.

Next Week: Some tips on writer/agent negotiations.

The Elephant in the Room

Copyright is probably the most misunderstood concept in writing. With information being so readily available on the Internet, everyone is on the defensive. If someone uses even one word of a text, the author is ready to jump on them. The same goes for ideas. Many people believe that if someone uses an idea the same as or similar to there’s without permission that they have stolen it. But actual copyright is very different from these common misconceptions.

Most beginning writers think that if they put their work out in public view that someone will steal it. If it only were good enough, someone might do just that. But most of the time it isn’t worth stealing. So how did they develop this notion.

It all started back when they were in school. Teachers ingrained in them that all their work had to be original. Let’s face it, the last time something totally original was created was at the point of the creation of the universe. Everything since then is influenced by all that came before it. Traditionally, academics have a fear that someone is after whatever they’ve uncovered or created. But that’s not how the real world works.

According to the Encyclopedia Britannica, copyrighting a work reserves the rights by the author to reproduce, distribute, and perform a literary, musical, dramatic, or artistic work. That covers a lot of territory.

It all began with the Statute of Anne, passed in England in 1710, that recognized that authors should be the primary beneficiaries of copyright law and established the idea that such copyrights should have only limited duration, after which works would pass into the public domain. The U.S. Congress enacted a similar law in the United States in 1790. Over the years, subsequent legislation changed the duration of a copyright and the necessity of registration.

Essentially, a copyright is placed on a work from a particular date onward for a period of time during which the copyright holder has exclusive rights to reproduce, modify, and distribute the work in whatever way he or she sees fit. In the U.S., that period is 70 years plus the age of the author at the time of publication. For anonymous works, that period is 95 years from first publication or 120 years from creation date.

A work that was created in tangible form for the first time on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.

Copyright law protects short stories, novels, nonfiction articles, poetry, computer software, software manuals, text advertisements, manuals, catalogs, brochures, and  databases. Other categories include plays, films, musical and sound recordings and multimedia works. Copyright law doesn’t protect your ideas, facts, words, and names, although it may protect the way you express them.

You own the copyright to your work, unless you assign those rights to a third party. Copyright protection arises automatically the moment you create it. The work must be "original," and not based upon someone else's work. The fact that your short story may be similar to other stories doesn’t mean it isn’t "original” for copyright purposes, so long as you don’t copy the complete story from another source.

For works published before March 1, 1989, you needed to place a copyright notice— “Copyright © 2014 by Your Name. All Rights Reserved”—on your work in order to receive copyright law protection. That’s no longer the case. For works published after March 1, 1989, you don’t need to place a copyright notice on your work in order to be protected by copyright law.

Such a notice warns people who view your work that you take copyright issues seriously and may have a deterrent effect upon possible infringers, especially those who are unfamiliar with the intricacies of copyright law. Furthermore, if your work carries a proper notice, in the event of a subsequent infringement lawsuit the defendant will be unable to claim "innocent infringement"—that he or she didn’t realize that the work was protected.

Do you have to register your copyright? Not necessarily, but if you need to take legal action, a registered copyright will hold up in court. You may register the work after someone has infringed upon the work, but the registration will only apply to infringements that occur after the registration. However, if you register your work within 90 days of publication, the statutory damages provisions apply to infringements before and after the actual registration. Registered works may be eligible for statutory damages up to $100,000 and attorney's fees in successful litigation.

Registration costs $35 per work. To register, you simply fill out the copyright application and mail it to the U.S. Copyright office with a check and a nonreturnable copy of your work—one copy if your work is unpublished and two copies if it has been published. Works that have been published must be registered within three months of publication. This is called "mandatory deposit."

Copyright registration is considered effective the day the Copyright Office receives all the materials required for registration. You may copyright the work in a pen name or pseudonym by simply checking the "Pseudonymous" box on the application.

Works published or created after January 1, 1978 aren’t subject to renewal registration. For works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.

The length of copyright protection depends on when the work was created, who created the work, and when the work was first distributed commercially. For works created on and after January 1, 1978, the copyright term for works created by an individual is the life of the author plus 50 years.

The term of the copyright for "works for hire" is 75 years from the date of first "publication" or 100 years from the date of creation, whichever expires first.

Remember, it’s up to you to enforce the copyright to your works.

Does Good Writing Have to be Literary?

It’s unfortunate that a writer’s first experience with reading professional writing happens in English class with the study of literature. I say unfortunate because without knowing it, writers often get led down the wrong path to good writing. Sure, the books and stories read in literature class are supposed to be a sampling of the best. But just who decides what is the best and who are the best writers?

Because of this, writers get the mistaken impression that all good writing has to be literary. Hogwash! There are loads of great writers that never made it into the literary stratosphere.

The arts–and writing is an art–have always been a haven for those who want to be separate from the masses. In Victorian times, the wealthy, the patrons of the arts, took great pains to make sure they didn’t hobnob with the lower classes. They ate in separate dining rooms, shopped in separate stores, and read literary works. This is essentially where the division between “literature” and “writing” began. And it’s held on to this day, albeit in a lighter form.

For instance, there are some who think that if The New York Times isn’t on their coffee table on Sunday mornings that they aren’t getting the best in news. Many of these same people also swear by The New Yorker as their source of the best in writing. Again, HOGWASH!

The literary crowd probably doesn’t classify most of the best books, articles, and stories published daily as good writing. The reason for this is that the writers of these works got paid. Beginning back in the Victorian Era, the literary crowd frowned upon anyone who got paid for their writing. They claimed this was selling out. Perhaps this is one reason why many good writers died penniless.

Today, with the proliferation of technology, most people have access to good writing on a daily basis–without the approval or recommendation of the literary crowd. Good magazine articles, short stories published in magazines that people buy at the supermarket checkout, books of all kinds, and now even electronic books (e-books) that they can read on devices like Amazon’s Kindle, make it easy for nearly everyone to have access to good writing.

So if you’re a beginning writer, only look to literature for inspiration, not technique. Study all the writing around you and imitate it. That’s the only way you’ll succeed and have money to eat in the process.