Agents Becoming Publishers: Sharks in the water

Courtney Milan, a writer with a background in law, has written two excellent posts on the subject of the conflicts of interest that can arise when agents act as both a client's agent and publisher.

For example, say Alice is a writer and Sue is her agent. Sue is negotiating with ABC publishing for the rights to Alice's latest book: A Tale of Three Cities. The agent has just opened up an publishing division for electronic books. If Sue thinks that Alice's book is going to be a bestseller and wants it all to herself, how hard do you think she is going to work at getting Alice a deal with ABC publishing? How hard do you think Sue is going to work at getting any other publisher interested in the manuscript?

Further, if Alice decided to publish with her agent rather than a traditional publisher, what motivation does the agent have to get the best possible deal for her client? None, since the more money her client gets, the less money she gets.

Courtney's first post: a mea culpa
Courtney's second post: agency publishing and conflicts of interest

Passive Guy, a retired attorney, has this to say about Courtney's posts:

Passive Guy congratulates Courtney on presenting the conflict of interest issues in a way that any non-lawyer should be able to understand. She describes real-life situations for agents and authors and how the conflict inherent in the agent-as-publisher can poison those relationships even if both parties have the best intentions.

Had you sat through as many legal ethics presentations as PG has, you would have a greater appreciation for Courtney’s achievement.

Here's the link to PG's post: Agents Who Publish Their Clients are Engaging in Unethical Behavior – Courtney Drops the Hammer.

Update: In PG's comments, Pat Chiles kindly posted a link to, The (Publishing) Times They Are Achanging, by accordingtohoyt. Another good read.

Stockholm Syndrome for Agents

Passive Guy has written another article about contracts, this one focusing on the question: Why would a good agent, one who knows how to read a contract, let their client sign a contract that contained one or more 'gotya' clauses in it?

PG writes:

Ultimately, for an agent, publishers are more necessary than any author.

When a publisher says an obnoxious clause like the Non-Compete Clause we discussed a few days ago must be in a contract and explains why the publisher needs the clause, how does the agent explain this clause to her client? Probably using much the same rationale as the publisher does. “I know you don’t like it, but the publisher needs this because . . . .”

After explaining the obnoxious clause 100 times to 25 authors, will the agent have a tendency to accept the clause as “the way things are done these days” or “the new standard?” Will describing the clause as something “every publisher is requiring in new contracts” be a better way to get a publishing deal and advance for the author and the agent than trashing the clause?

Since agents and attorneys who work for agents are not regulators, we don’t have Regulatory Capture here. How does Agent Capture sound? Joe Konrath talks about authors succumbing to The Stockholm Syndrome in their dealings with publishers. There may be something like that going on with agents as well.

Here is a link to PG's blog post, it's a good read.