There are generally three types of deals that publishers make for a book:
- North American rights, which include the territories held by the USA, Canada and the Philippines
- World English rights, which include North American rights as well as UK rights (Britain and its territories)
- World rights, which include all English language and translation rights
A book theoretically could be published in every known language. Publishers may have their own foreign divisions established (e.g., Penguin UK or Harlequin France), may sell the rights to a book directly to separate foreign publishers, or may use subagents who sell the rights to the book for the publisher in its territories and take a commission (usually 10%). If the author has retained UK and/or translation rights, then the author has the option of selling directly to foreign publishers or using subagents as well (this usually depends on which method the author’s agent uses).
Unfortunately, even if a book is a smash hit in some foreign countries, if it flops in the US the publisher is less likely to continue to publish the author. Few if any American publishers will buy a book with the primary intent to publish it anywhere in the world other than the US, since the US is by far the world’s biggest market. Of course, if the publisher only pays $15,000 for a book and it doesn’t do well in the US but brings in $100,000 in foreign licenses, then that would make the decision a bit more complicated.
Since no question is off-limits, I’m gonna go for broke and ask a question that has been killing me for several years. A close friend of mine struggled to find an agent for his first book, but at the last minute, a well-known (and I think, respected) book packager/agent agreed to take him on. From the moment my friend signed a contract, his agent became a nightmare, describing the book as unsellable, arguing against asking for a larger advance, then holding on to royalty checks for months at a time. When the author tried to terminate the relationship, the agent insisted the relationship couldn’t be terminated and demanded 15% of the proceeds from deals the author was closing entirely on his own. Only after thousands of dollars in lawyers’ fees was my friend able to separate himself from this leech. All along, I was astonished that the agent retained his good reputation, despite being a raging asshole.
Here is my actual question: Was this an exceptionally bad experience or can my friend expect similar shaftings from every agent he encounters? He is more than a little gun-shy at present and I have no way to reassure him. And inside the industry, what is the feeling about (accredited, respected) agents who mistreat clients? Is the assumption that writers are a whiny lot and blow everything out of proportion or is it understood that there are a few very, very bad apples out there?
First of all I’m not quite sure why an agent would describe a book they want to represent as “unsellable.” But that aside, it sounds like this agent wasn’t doing his or her job. The agent works for the client, so if the client absolutely wants the agent to ask for more money, then the agent is obligated to do so, even if it’s against his or her best advice (I’m also not quite sure why an agent would argue against asking for more money, unless the author was not willing to take a deal at all without more money being offered).
The issues of the agent unreasonably holding on to monies owed, claiming rights to subsequent books, and the author’s ability to terminate the relationship should all ideally have been outlined in the author’s written agreement with the agent. If the author never signed a written agreement, then it’s tough to say what the understanding between the two parties originally was. Was the agreement that the agent represented all of the author’s works and not just one particular book? If so, then the agent may have had every legal right to retain his or her 15% commission regardless of how much work he or she did to sell the project (though whether he or she should have, ethically, is questionable). The way you’ve described the situation, it sounds like the agent was not acting in good faith and the author had good reason to sue.
Should the author expect such treatment from every agent? Absolutely not. The vast majority of agents recognize that they work for their clients and will not take actions to alienate them. Without clients, agents don’t make much money, and with a reputation for being abusive, an agent won’t get many clients.
In the future, I would recommend that the author sign a written agreement with any agent that states exactly what the agent is representing (and there are strong arguments to be made for having an agent represent all of the author’s work rather than just individual projects), how to legally terminate the relationship (can be as simple as an email), and how long the agent may hold monies before paying them to the client (10 business days is reasonable in my opinion). Have a lawyer look it over, too, if possible. This is a very unfortunate experience, but not one the author should expect to repeat if he does some research and takes steps to protect himself from the outset of the agent-author relationship.
The Secret Agent is an agent with a small, but well-regarded, literary agency in Manhattan. Send your questions about representation and publishing to the agent at thesecretagent [at] maudnewton.com. No question is off-limits.