Saturday, August 13, 2011

Agents Verses Intelectual Property Lawyers

There's been a fair amount of talk on the Kindle Board, and also in a phone conversation I had with another author as to whether you should use a lawyer or an agent. As with most things, the answer is...it depends. The argument I've heard is why spend 15% forever when you can spend a fixed fee. It's a valid point in SOME circumstances but I think there is still a lot of value in having an agent. Let's look at some typical scenarios.

Signing with a small press
In this case I actually suggest: neither
Whenever I hear an author talking about their agent just got them a contract with xyz, and xyz is some small fry publisher , I scratch my head. They really don't bring anything to the table in this situation. The contracts are pretty straightforward. Yeah they'll ensure nothing truly terrible is in there, but they won't be able to negotiate more money (most small presses don't even give advances) and their royalties are usually at or above big-six percentages.

While one would think that a lawyer should look over any legal document - you have to consider cost / risk. That's what a contract lawyer does - looks to eliminate risk. Let's look at Michael's first small press contract with Aspirations Media. We got the contract in and I went to my local Bar Association and several Lawyer referral sites - the estimates I got ranged from $500 - $1500 to review the contract. This wasn't to negotiate the deal, just read all the clauses and point out anything worrisome. But the publisher was only printing up 2200 books (had no plans for ebooks - it was a while ago), and Michael would make $0.75 a book so...even if he "sold out" the first print run he would only make $1,650.

So in this case we "did ourselves" - looked at the contract with a critical eye and asked for changes for some of the things that concerned us the most - mainly under what conditions the rights reverted.

A Medium or Large Publisher Approaches You
This came up on the Kindle board the other day, and what prompted this post. The first thing I want to say about this is...don't do it alone. The fact is, the contract that you'll receive "all by your lonesome" will look nothing like one you'll receive if you're represented. This will be in terms of both money and the clauses (whether they are weighted heavily toward the publisher or the author).

If you have a single book, and it is pretty focused (say non-fiction educational), yeah a lawyer might be the best way to go. It's a fairly one time transaction, the lawyer, if they do a lot of these will know the "going rates" and get the offer increased if he/she thinks its a low ball offer and the likelihood of follow on venues (foreign, movie rights, merchandising) is small.

If you have a series, say fantasy, science fiction, or a thriller than I would suggest an agent. This is body of work with more "legs". The first thing the agent will do is use their connections in the industry to get multiple offers. One of the biggest reasons to use an agent is they have contacts with many editors. Having an existing offer is leverage they can use.

A series also has more potential for subsidiary income: foreign translations, movies, etc. A series has the potential to create a "career" and having an agent to help build it to its maximum potential is, in my opinion, well worth the 15% they will take. A lawyer will work the single transaction and then they are done. The agent has the connections to get additional revenue streams.

You've experienced self-publishing success and want to go traditional
In this case I think an agent is the only smart way to go about this. If you're already earning, you won't have to the query-go-round to find an agent. Pick the ones you are most interested in. Prepare data on your sales, and make some phone calls. If your sales, or rankings are good, I suspect you'll find several people willing to represent you (especially today as authors with an established platform are very marketable).

In this case there agent can bring even more to the table. Most are used to acting as content editors. They'll read the work - suggest changes to make it more attractive (something that an indie author will find expensive and hard to find). It could be that you had a "great start" with good sales, but a little tweaking can turn a good novel into a great novel.

Again, they have many contacts at multiple publishers so armed with a "hot commodity" can make some phone calls and get the ball rolling. This is exactly the situation with Michael's Riyria Revelations series. Our agent put together a proposal, gave it to 17 houses with a deadline to respond with interest in 17 days. She immediately had 7 publishers expressing an interest. Approaching publishers once you have success certainly accelerates the process form the standard approach.

In tomorrow's post I'll talk about agents again but this time "by request" as someone asked me what my take was in the agents as publishers trend.

20 comments:

Anne R. Allen said...

Really useful post. Thanks for spelling things out. I get confused when people with small presses talk about agents, too. But I see how an agent would be absolutely necessary for a self-pubber moving to corporate publishing. Also for selling foreign rights, I should think? I'll RT this!

Robert Bidinotto said...

Interesting. But it causes me to ask some questions about my own situation.

As you know, Robin, I'm an indie with a just-published debut novel, a thriller. I've already been getting ever-better rankings, fabulous reader ratings, and now...some Hollywood interest. An established screenwriter (you'd know his work) would love to do a screenplay, and has had me send my book, HUNTER, to his talent & literary agent, and also to his entertainment attorney, in order to check on interest from producers and directors.

This unexpectedly rapid turn of events catches me a bit off-guard. I am not yet persuaded that I should have a literary agent for placements of future books in the series. However, a Hollywood agent and/or I.P. attorney is another matter.

Any thoughts on this? You can email me privately if you prefer. Thanks much.

David Wisehart said...

Robert,

Congrats on generating some interest in Hollywood.

I see no issue with sending your work to the screenwriter's reps. Go ahead and send it.

It doesn't mean they'll want to represent you as a writer, but they may want to rep the project in Hollywood if and when their own writer is attached. You may get "hip-pocketed," as they say.

If you're looking for a Hollywood agent, this is probably the best way to do it. In most cases, you need a recommendation from one of their existing clients even to get read. It sounds like you've passed that hurdle.

In general, Hollywood studios and production companies will not consider material that does not come from an agent. This is a form of legal protection for them.

In other words, your screenwriter connection is going to want to shop the project through his reps. He likely won't be sending it around on his own.

If you want to submit to a Hollywood production company or studio yourself, and you don't have an agent, you can hire an entertainment attorney to submit the project for you.

David

David Alastair Hayden said...

You would want a lawyer specializing in IP with previous experience on literary contracts. Such a lawyer is in a MUCH stronger position to negotiate contracts for you. All agents have conflicts of interest because they represent multiple clients. This prevents them from playing hardball with a publisher whom they must turnaround and deal with again and again.

Obviously, your IP lawyer can't get your work out to editors. You'd have to do that on your own, which if you have successful indie sales wouldn't be that hard with some research. But not all agents, even some pretty good ones, have as many good connections as some authors believe.

I've had an agent before. Been there, done that. If I ever have a traditional publisher offer, which isn't something I'm seeking at all, I will get an IP attorney with literary experience.

Robert Bidinotto said...

Thanks, gentlemen, for that valuable feedback. I tend to lean toward the "entertainment/IP attorney" direction, anyway, based on what I've been reading about agents lately. Of course, the odds of ANY "interest" turning into a deal is very small. Still...I want to be prepared if it happens.

Again, I appreciate your input.

David Alastair Hayden said...

Hollywood works much differently in regards to agents and such.

Suzanne said...

My first three books were originally published by a small press. I hired a literary attorney to help me identify land mines in the boilerplate contract -- that's how I kept all my sub rights -- and I negotiated with the publisher myself. My membership in a state-wide writers' organization got me the attorney's discounted rates for authors. I was pleased with the outcome.

Suzanne Adair

Anonymous said...

I think this is one of the most important information for me. And i am glad reading your article. But should remark on few general things, The website style is perfect, the articles is really nice

Anonymous said...

Pretty insightful. Thanks!

My blog:
DSL Vergleich klick hier

nancy said...

Overland Park dui attorney
Thanks man for such a best overview of publisher agents. Like your blog following you through next post

Robin Sullivan said...

Robert - Congratz on the interest from Hollywood. I see no problem with sending the stuff out for people to look at. But if something is put before you to sign - then I say you need someone to look at it.

Holywood is different than other areas and I don't have enough experience to give much recommendation in that area. My foreign language rights agent has a lot of movie rights experience as well so if you get to the stage where you need to talk to someone I'll put you in touch with each other. It may not be that you have her represent you but she can give you some perspective from someone who "knows" the business.

Anonymous said...

In addition to co-writing the season finale of Game of Thrones" besides Emilia Clarke, but the App Store is also sexcam a version of the guide and recommendation app.

Look into my blog post ... sex cam

Anonymous said...

It is, of course, we Muslims fooled you. Our garments of praise
sexcam to Him.

Review my blog ... sexcams

Anonymous said...

The face of the phone, you're unable to use the bathroom until the 7:00 am count is completed. My ex-husband, who is a decorated soldier and a former colleague. Right out of the park again, and the quality of her hemp was said by J.

Here is my web blog: sex cams

Anonymous said...

Hey! Would you mind if I share your blog with my facebook group?
There's a lot of folks that I think would really appreciate your content. Please let me know. Many thanks

Also visit my site: uk letting agents

Anonymous said...

Hi there, after reading this remarkable article i am too cheerful to share my experience here with colleagues.



Take a look at my blog post; Read Full Report

Anonymous said...

I am curious to find out what blog system you are working with?
I'm having some small security issues with my latest website and I would like to find something more safe. Do you have any recommendations?

Feel free to visit my website; section 21 4 a notice form

Anonymous said...

Hey There. I found your weblog the use of msn. This is a really well written article.
I'll be sure to bookmark it and come back to read extra of your helpful information. Thank you for the post. I'll definitely comeback.


Feel free to visit my site; More Info

Anonymous said...

I had big plans for the last few days in Europe and, of course -- is buttery smooth.
This scooter is made in when Hannah Montana booming in on one
of them is not reading them. fleshlight latest sensation
in fleshlight tin! However, a spokesperson for Black Berry maker RIM
adding that in order for the systems to work correctly
its must to have a good strategy. We Americans don't care how much a president knows or what they can do any number of things. Below are the five least intuitive things I found in Windows 8, and how?

Anonymous said...

Here are some of the most enthusiastic adult toy reviews you'll ever read have been written about the Fleshlight. Accept them at whatever stage they are, or how noisy the party you're going to
need.