by Peter Cox
A major debate is going on in publishing circles at the moment, and you need to know about it.
Frequently, these things are a storm in a teacup. What excites publishing folk often leaves the rest of the world… a bit limp. “Inside Publishing” isn’t always as exciting as… watching leafcutter ants.
This time it’s different.
This issue is enormous. Because it will affect every book deal, every publication contract, from now until the end of time.
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It affects every author who has an agent, or who would ever like an agent. It goes to the heart of what being an agent is all about.
In a nutshell, this is the question:
Should your agent also be your publisher?
In recent weeks, there have been a spate of agents who have cut deals on behalf of their clients with… themselves. One such involved the agent to the estate of the late author Catherine Cookson. According to the Daily Mail, the literary agent didn’t even inform the author’s publishers, Transworld and Simon & Schuster, that she’d done a deal – with herself – to digitally publish 100 of the author’s titles. “I haven’t told either firm about the deal”, she said, “and I am sure they are going to kick up a fuss about it”.
Yes, I bet they will.
As should any author whose agent says to them – come on – let’s cut your print publisher out of the picture… give me those lovely digital publishing rights, and I’ll publish you myself!
No doubt many agents will jump on this particular bandwagon before it overturns.
It’s Not OK To be Your Client’s Publisher
Let me be absolutely candid with you. Although various excuses have been put forward by agents for doing this – it’s mostly about lining their own pocket.
Not that I’m against agents making money – how could I be?
But this isn’t just about making money. It comes perilously close to what is termed in law “self-dealing“, and it is both ethically wrong and legally very dangerous. In taking this fateful step, those agents who choose to do this are in danger of crossing a line that is legally and ethically of immense significance.
“The law is very clear…An agent must at all times avoid conflict of interest”On a matter of law, the situation is very clear. An agent must at all times avoid conflict between the interests of the principal and his or her own.
Once you become your client’s publisher, you then become a principal in the transaction. This means you can no longer function as the client’s agent.
Agency law makes it clear that an agent must not engage in self-dealing, or otherwise unduly enrich himself from the agency. Nor must an agent usurp an opportunity from the principal by taking it for himself.
I really doubt whether any agent can legitimately claim that it is in the author’s best interests to be published by their literary agent. It’s like the ref in a game of footie being paid by one of the teams playing. It raises huge issues – and it just doesn’t feel right – does it?
Also, I don’t believe any agent can declare, “I couldn’t find a digital publisher for my client, so I had to do it myself.” No. The fact is, the internet is full of digital publishers, both large and small. Digital publishers are everywhere, and they are keen for our business.
It’s A Rights Grab
We have to be honest with ourselves, and say that this whole issue is about one thing, and one thing only: opportunism.
“Most agents don’t have the resources to be publishers. Especially now, when publishing has never been a more difficult or demanding profession”It feels like a rights grab. Looking after Number One.
The problem is this. If you become an agent, the author should be Number One.
Maybe those agents who have cut these sort of deals haven’t really considered all the implications – I don’t know. I certainly hope they have great liability insurance.
I also hope they fully understand how to publish their clients effectively in the digital domain. I hope they have all the necessary technical and marketing expertise and resources to do a great online publishing job. I hope they won’t stint on the advertising and marketing budgets. I hope they won’t favor one client ahead of another. I hope the contract will have a review period which will allow the author to go elsewhere if the agent makes a hash of it. Fingers crossed on all those points.
Frankly, I just don’t believe that most agents actually have the resources to be publishers. Especially now, when publishing has never been a more difficult or demanding profession. Most “traditional” publishers I know face massive challenges currently.
Any agent who thinks that it’s a soft option being a publisher today is incredibly naive.
Opportunities Without Pillaging Clients’ Publishing Rights
There are plenty of new opportunities for agents today without pillaging clients’ publishing rights. The agency Conville & Walsh has just launched a speakers bureau for its clients. Good thinking. Make more money for the client, and you’re making more money for yourself.
I like that idea. Let’s have more like it.
If you’re an agent reading this – please pause for a moment.
Our authors need us now more than ever to guide them through the treacherous waters ahead. They need us for our good advice, expert knowledge, and selfless counsel. Agents need to evolve into good business managers. Some of us may have to learn a pack of new skills to do that. Nevertheless, that is the way forward.
So – are agents to be driven by short-term opportunism – or by the longer term interests of authors? Every agent has to take a decision on that for themselves.
But you know where I stand.
Firmly on the author’s side.
To contact me, mail peter [at] redhammer.info