You know, to be clear, this is not entirely* an indictment of literary agents.
They are just doing their jobs.
It's an indictment of the traditional publishing industry that created their jobs.
https://terikanefield.com/traditional-publishing-and-the-pitfalls-of-the-literary-agent-model/
(I realized that this morning)
*edited in response to a good comment
I think I'll change the title to:
"Let Every Eye Negotiate for Itself": A Legal Breakdown of the Literary Agent Model
Better?
https://terikanefield.com/traditional-publishing-and-the-pitfalls-of-the-literary-agent-model/
I did it. It's a blog post.
Ideally, publishers—like librarians—should see themselves as guardians of the culture, but, well . . . 🤷
Ready for a legal breakdown of the literary agent model?
Me: Why make all those people angry?
Also me: But this is what I'm thinking about.
Along the way, I’ll offer a personal publishing horror story and advice to writers considering traditional publishing.
So here goes. (Warning: I think the rebel in me is coming out.)
https://terikanefield.com/traditional-publishing-and-the-pitfalls-of-the-literary-agent-model/
I will conclude this thread by quoting the great bard:
"Let every eye negotiate for itself and trust no agent."
William Shakespeare's play Much Ado About Nothing (Act 2, Scene 1).
I've also done a fair amount of self publishing which usually happens when I say, "It's not worth the aggravation. I'm doing this one myself."
Also it's myth that you need an agent.
I sold every one of my books without an agent.
I have worked with agents, and they only caused me grief and aggravation, with one exception. A literary agent in the early 1990s loved one of my books. She couldn't sell it. We became good friend sand I still onsider her one of my closest friends.
I think our friendship was helped by the fact that I never asked her to be an agent for me :)
I sold every single book myself. How? well, that is another story
Lawyers are expected to follow strict rules when handling client funds, but every month large numbers of lawyers are disbarred for mingling funds or mishandling funds.
If you think that a person who calls himself or herself a literary agent is less likely to mishandle funds than a person who has studied for (and passed exams) on how to handle client finds, well, I have a bridge to sell you.
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. . . The literary agent model has never been challenged in court, but I find it hard to believe that what the agent does (negotiate a contract, represent a third party, and explain contract terms to a third party) would not be considered illegal.
Finally, one more.
Publishers generally send the entire royalty check to the agent. The agent deposits the money, and then sends the author's share to the author.
Lawyers do the same but the industry is highly regulated.
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. . . because the only thing they have to offer new authors is access to the publisher.
Conclusion for this issue: The agent is an out-sourced slush reader, so there is a conflict of interest.
Here is the definition of conflict of interest in relation to laws governing lawyers: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/
(2) second issue. Agents negotiate contracts but they are not trained in contract law.
This is called unauthorized practice of law . . .
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. . . the agent is torn and would probably have to step aside.
It is often the case that what the writer most needs isn't a larger advance but better contract terms.
You'll find editors saying, "We prefer to work with agented authors because if a dispute arises, we can talk to the agent instead of the author."
Why? Because all most all the time, the agent needs the publishing company more than it needs the author. . .
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They have to keep going back to the same publishers, so they cannot make the publisher angry. Aspiring authors are fungible. There are thousands at the gate.
The objection you will hear is "Some agents are tough negotiators and they don't mind making editors angry."
Certainly, they may be "tough" when angling for a large advance, because that is how they get paid.
Editors get that.
But if an actual legal dispute arises . . .
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would be hired to read through the slush pile and look for good books. Lots of good books were picked out of the slush pile.
Literary agents are essentially slush readers for the publishers. There is no more slush pile.
Here is the first problem: There are only a handful of major publishers, and the "power" an agent has is their access to editors.
You might say they work for the publishers but are paid by the writer.
They have a legal conflict of interest.
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. . . what they called a slush pile. These were the manuscripts that people send in They were of course printed (usually photocopied at a photocopy place) and put into a manuscript box. The author was directed to include SASE (self address return postage) and when I tried to tell one publisher (recycle the paper and send me a letter) the response I got was, "Do you not value your manuscript?"
(me: It's a copy!!)
Anyway, eager beavers with freshly minted English degrees , . .
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I just did some poking around and the problem I see with the nonfiction trade market have been widely discussed.
What isn't discussed as much are the legal issues with the literary agent model, but that really only effects people looking for an agent, and they will not heed my advice because the system is what is is and they want in.
Two legal problems:
(1) Agents are essentially outsourced slush readers. In the old days, when I started (ancient times, the 1980s) publishers had . . .
2/
Sometimes I don't like stepping into a hornet's nest . . . but what I really want to write about are the problems with the traditional publishing industry and the literary agent model.
Me: Why make all those people angry?
Also me: But this is what I'm thinking about.
RE: https://indieweb.social/@tchambers/116947662719781204
Excellent work, and very interesting.
My team's work is this article on #AI in the New York Times this morning:
“Disinformation actors are, by definition, early adopters — they will use every technique and every technology they can,” said Tim Chambers, who runs the digital and social media arm of Dewey Square Group...The firm has been helping clients audit their websites to see how accessible they are to chatbot scrapers..." (1 of 3)
That was probably a lot of mumbo-jumbo for nothing. I could have just said:
I put the text of my Madison Wisconsin talk, "The Power of Lies: Are We Creating Our Own Noise" at the top of my new "Things I've been Thinking About" page.
It's here: https://terikanefield.com/things-ive-been-thinking-about/
Done!
Moreover, I’ve concluded that the best way to make sense of what is happening today is to step back and focus on the big picture and develop a framework for understanding our current moment.
Trying to correct bad information (including on our "side") is like trying to put out a forest fire with a squirt gun.
Better to back up and look at the big picture to understand where we are, how we got here, and how we might find our way out.
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News audiences have fragmented into smaller and smaller units. There is nothing I personally can do about the problem, but I can avoid contributing to the noise.
Bloggers and newsletter writers are under constant pressure to create new content.
Because we don’t report the news, it means reading the news and offering value responses.
The public sphere is now being blitzed with value responses, which are drowning out the facts.
I explain here: https://terikanefield.com/the-power-of-lies/
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