I first started learning about the publishing industry back in December of 2010.  I read almost everything out there on literary agents, editors, publishing houses, and indie-publishing.  From the beginning, without any advice or words of wisdom from the experts, I knew that indie-publishing was the best way to go … at least for me.  The more I learned about agents and traditional publishing houses, the firmer that conviction became.  Now after reading Kris Rusch’s latest blog on agents and Passive Guy’s posts, “You Just Signed With a Big Agent? Oh, I’m so sorry” and “A Get Out Of Jail Free Card For Some Authors,” that belief is set in stone.  Why do I say that?  Let me give you some examples of the agent clauses that are now being placed into publishing contracts by agencies:

“The Author hereby irrevocably appoints [Agency]…to act in all matters pertaining to or arising out of this agreement and all other agreements, licensing, or otherwise dispersing of any rights in the Work in any form or media, and including any works for which there are options under this agreement…In consideration for services rendered, the Author irrevocably assigns and transfers to the Agent a sum equal to 15% of all monies due the Author under this Agreement and related agreements….”

I love what Kris says about it:

It ends with this rather astonishing sentence: The provisions of this paragraph shall survive the termination of this Agreement.

Um, excuse me? Lawyers out there, tell me how this is possible.

That paragraph is a minefield of horribleness.  It irrevocably assigns at least 15% of earnings from the sale of any rights in the book to the agent, as well as the same amount in works that are covered under the option clause.  So if the agent negotiates a broad option like this one: “The publishing house has the option on the author’s next work,” then the agent will earn his 15%  in whatever that next work is…even if the publishing contract is terminated.

Here is another one:

“For services rendered and about to be rendered, the Author does hereby irrevocably assign and transfer to said agent and said agent shall retain, a sum equal to 15% as an agency coupled with an interest….”

And the grand finale:

This big name agency has the same clause as the one above.  But coupled with the agency agreement—a five-page document that gives the agency the right to negotiate for the writer on any matters on the writer’s behalf.  It also gives the agency “commissions earned by, paid to or credited to” the Author “or any entity owned by or controlled by” the Author “in perpetuity.”

Seriously. In perpetuity.

And in case the writer missed that point, there’s this: “The Author understands and agrees that the provisions of this Agreement which by their very nature survive the expiration of the Term of this Agreement.” And then it goes on to list all the negotiation, money clauses, and interest in the work clauses as surviving the Term of the Agreement.

In other words, you can fire this agency, but you—and your heirs, and any corporation that you form or trust that you create—will owe that agency money forever.

Passive guy sheds some light on this in his Get Out Jail Free Card post but mostly these clauses are there to ensnare you and keep you paying money to them forever.  And if you think this is bad, there’s more – agents who have become both publisher and agent, offering to publish an author’s backlist for 50% or more of all future sales.  Read Kris’ blog to find out why this is a conflict of interest and how it can hurt the author.  She gives you real stories that have happened.  Also, you may want to read about Sheil Land and what happened to her as an agent gone publisher.

So, you may be wondering, why am I calling this post Literary Double Agents?  Because for a long time authors believed that all agents were on their side, protecting their rights and their best interest.  Many authors believed this and still want to believe it, pushing their heads in the sand and hoping that what people like Kris and Passive Guy are saying isn’t true.  The fact of the matter is that these agents and agencies aren’t trying to protect your rights, they are vying for them and competing with the publishing companies.  They aren’t literary agents.  They are literary double agents.

It is ridiculous to me that these agents (and publishers) are making these desperate attempts at seizing the rights of authors in order to stay alive when it is so easy for authors to walk away and do it on their own – so easy!  At this point, I’m just wondering what the heck they’re thinking.  Do they really believe they will be able to stay in business this way?  Especially given the competition that Amazon is placing before them (example: read about Barry Eisler signing on with Thomas and Mercer).  Unbelieveable!  I know that at some point these people in New York are going to have to realize that authors are the ones with the power now and when they do, it will be too late.

~Melissa