Agencies Becoming Publishers–a Trend and a Problem

Yesterday, Dystel & Goderich Literary Management, a major US agency, announced that it will be facilitating self-publishing for some of its clients.

Over the past months and years we’ve come to the realization that e-publishing is yet another area in which we can be of service to our clients as literary agents. From authors who want to have their work available once the physical edition has gone out of print and the rights have reverted, to those whose books we believe in and feel passionately about but couldn’t sell—oftentimes, after approaching 20 or more houses—we realized that part of our job as agents in this new publishing milieu is to facilitate these works being made available as e-books and through POD and other editions.

D&G is not alone. Laura Rennert at the Andrea Brown Literary Agency is also experimenting with self-publishing for agency clients. The agency’s first release, P.J. Hoover’s YA novel Solstice, came out in April.

Literary agencies as publishers is a fast-growing trend (I blogged about it last month, in connection with the publishing initiatives announced by UK agencies Ed Victor and Sheil Land). To date, however, agency publishing ventures have primarily focused on backlist publishing–bringing already-published clients’ out-of-print works back into circulation. There are some conflicts of interest inherent in such arrangements–for instance, your agent is supposed to be your advocate in publishing contract negotiations, but who advocates for you when it’s your agent who’s offering the contract? As agent Peter Cox has pointed out, “Once you become your client’s publisher, you then become a principal in the transaction [which] means you can no longer function as the client’s agent.”

However, to my mind at least, the conflicts that arise when agencies begin publishing clients’ previously unpublished works are even more concerning. If an agency can publish a client’s book itself, will it try as hard to market the book to traditional publishers? Will it give up sooner on a book that doesn’t sell right away? Where and how will the line be drawn between “this book still has potential markets” and “this book is tapped out?” How much–unconsciously or otherwise–will the agency influence clients’ decisions on which publishing route to take? According to Dystel & Goderich’s announcement, “what we are going to do is to facilitate e-publishing for those of our clients who decide that they want to go this route, after consultation and strategizing about whether they should try traditional publishing first or perhaps simply set aside the current book and move on to the next.” (My bolding.) Does this mean that the agency may take on clients whose manuscripts are never marketed to other publishers at all?

Also a question: what’s the money situation? Does the agency provide all consultation and publishing services and in return take a cut of the book’s sales proceeds? Or might there be some sort of “partnership” arrangement, where the author pays the agent for publishing services? D&G says that they will “charge a 15% commission for our services in helping [authors] project manage everything from choosing a cover artist to working with a copyeditor to uploading their work.” What exactly will that commission be charged on? (D&G has responded to some of the concerns generated by their announcement, but the payment arrangements are still unclear.)

I can certainly see the agency perspective here. Keeping up with the rapid pace of change in the publishing industry, maximizing income potential, providing the widest range of services to clients–all of that makes good business sense. And I don’t for a moment doubt that these ventures are genuinely intended to be helpful (as well as to make money).

But while I think a good argument can be made for backlist publishing as a lateral expansion of an agency’s role (yes, there are conflicts, but these are books that have already had their day), becoming publishers for clients’ not-yet-published manuscripts seems like a fundamental violation of the author-agent relationship, which is founded on the premise that the agent’s job is to sell the client’s work for the best possible advance to the best possible publisher. Being able to publish the work yourself undermines that premise in a really profound way. And even if you begin your publishing venture with the best possible motives, and a firm intention never to capitalize on your clients’ deepest vulnerability–which is, precisely, the desire to be published–what’s to prevent you, over time, from slipping away from that resolve, especially if the traditional publishing market continues to contract and your own publishing venture proves to be lucrative?

We’re in really murky territory here, and I don’t think it’s realistic to expect agencies to police themselves. Agents’ associations need to take the lead in looking seriously at this issue and amending their conduct codes to address it–rather than, as seems to be happening now, adopting a wait-and-see attitude or just going with the flow (the UK’s Association of Authors’ Agents recently decided that agency publishing ventures do not violate its code of conduct). Agencies are going to become publishers, whether we like it or not–and a pro-active approach needs to be taken now, in order to prevent abuses down the road.


  1. Hi,I signed a contract with a publishing company that has been extremely unprofessional. I was told services would start once I paid a specific fee. I did so and after this I had to hound them for every little thing just for nothing to be done. long story short I recently asked for a partial refund and a termination of services and of course was told no. My main concern is that they have 5 out of 8 of the chapters of my book. If I decide to publish elsewhere or on my own can they legally publish their own version of my book? Also can they sue for publishing it on my own?Lastly, is it possible for me to get a refund since I have proof of conversations showing how things were being handled?
    Your help is needed and appreciated
    Thanks in advance!

  2. Anonymous, I think you make a really good point. The independent epublishers were pioneers, and now that epublishing has become big business, many people seem to be forgetting that.

    Currently, though, I think it's hard to generalize or to judge, because we know so few of the operational details of these new digital ventures–all of which seem to be going about things differently. For instance, Dystel & Goederich has said it will charge a commission, but BookEnds seems to be implementing some sort of profit-sharing arrangement, if their rather vague FAQ is anything to go by. We also don't know exactly what, if any, rights are involved. Basically, we really don't know yet whether these ventures are facilitators, publishers, or some kind of hybrid of the two.

  3. Another problem you failed to mention it that these agencies aren't just redefining themselves. They are trying to redefine self-publishing to suit their own agendas. From what I've seen so far, especially with the recent announcement at BookEnds, agencies aren't becoming publishers. They are assisting people in getting self-published. At least that how it sounds.

    But they are using the term e-publishing very loosely and they are not only confusing new authors, they are insulting all the established e-publishers who've been working so hard to make digital books a viable means in publishing. It's like driving on the shoulder of the road in a huge traffic jam and cutting into the front of the line after everyone has waited their turn.

    E-publishing is not self-publishing. In fact, BookEnds, either through sheer ignorance or arrogance, (either way it's shifty) states in a post their new venture is self-e-publishing…which is a contrived term in itself. And, on the web site for the new venture, "Beyond the Book," in the first line they refer to what they are doing as e-publishing.

    Reputable e-publishers don't charge authors. They work like all traditional publishers, some pay advances. But self-publishing requires an author investment. And these facts aren't being made clear to readers.

    I find it amazing that no one has said anything about this.

  4. I hired and fired two agents. Publishers?! No thanks.
    I write illustrate and publish my own material. Still after the networking to sell the material, but once I hit that nail on the head to sink it, I'll be a writer-publisher, and hopefully movie producer as well.

  5. I made over $12k with my self published fantasy books in June Kindle sales alone. July is looking even better.

    I have just one thing to say to all agents and publishers:

    Start looking for another job, because I dont need you at all.
    No one does.

  6. All I can foresee is attorneys becoming the pseudo agents for authors to negotiate this new relationship between the agency/author but that's jmho…

  7. If the book industry is dying, blame it on Writer Beware who has taken incivility and unprofessionalism to the highest. Your comments policy is a JOKE –I have seen tons of slander on this site over the years. Your own books never sold well, your advice is useless and a waste of money. A publicist is just going to take money and the writer will never recoup it because no one is interested in the stinking book in the first place. Just a vanity thing on the part of the writer with a big ego and some cash .The so called "legit" agencies are dying, no one can survive on the paltry royalties that authors are bringing in. They are just looking for some cash flow and the book is still going to go nowhere.

  8. Anonymous, could you contact me at beware [at] I'd love to know the name of the agency (in confidence, of course). Thanks.

  9. I agree with Shawn James' last comment. And what about the agent who "facilitates" by steering the client to an e-book formatter, expecting client to pay for same and for cover work, yet uploads everything in the agency name?

    And this does happen. I have been approached to do formatting for back-list titles by an agency, with the author paying my costs and the agency uploading to their account. So what is this agency providing? Nothing, and still grabbing 15% from sales (They are setting the price of the book, too).

  10. Really don't like the idea of an agent acting as a publisher. It's a serious conflict of interest. Long-term that leads to a slippery slope.

    Just like paying for book reviews I see a serious breach of ethics here.

    What if an agent is in trouble financially? Will they start approving poorly written titles just to make a few bucks off authors? Will they charge authors for services like a POD publisher? Who will establish the standards for quality? How will royalties be accounted for? Will there even be any royalties left after an agent/publisher takes the service fees and their comission?

    The agent is supposed to be an intermediary between an author and the publishing house; a person who acts in their best interest. When they become the publisher, that changes the relationship. Then they become the person who acts in the best interest of the publisher.

  11. I think it’s wonderful that you’re sounding the alarm against agents who might actually become publishers, Victoria, but it sounds to me like a couple of literary agencies have simply decided to represent authors who choose to self-publish some or all of their books. They’re still acting as agents, not publishers. I think that’s much less of a conflict of interest than many serious conflicts of interest that exist today. In today’s world, which books are published are primarily dictated by six large publishing houses, nicknamed the Big Six in the publishing world. Think about that for a minute. Six huge publishing corporations, most owned by mega-corporations, controlling which books are published worldwide, whose financial responsibility is to make money for stockholders – here’s a list of the Big Six and who owned them as of March 2010: Who are “The Big Six”? – that’s a huge conflict of interest for any literary agent wanting to take on niche or mid-list authors, but knowing that the Big Six will drop any author who doesn’t sell huge numbers of books. Major publishing houses used to publish mid-list authors throughout their entire writing career, but that’s no longer the case. Within the past year or so, quite a few agents have taken to openly mocking literary writers with M.F.A. degrees on the Internet – how is that not a conflict of interest, to be a literary agent mocking literary types on the Internet, simply because they might not sell enough copies of their novels? Self-publishing offers, finally, some real competition to the Big Six, and I would think that at least some literary agents would be excited and proud to have the opportunity to represent any books they thought should be published. In 2010, Paul Harding won the Pulitzer Prize for TINKERS, his self-published novel turned down by numerous agents: Mr. Cinderella: From Rejection Notes to the Pulitzer. This year, THE SILENCE OF MEDAIR, a self-published novel by Andrea K. Host, became a Finalist in the Aurealis Awards, and is now selling for 99 cents on Amazon Kindle. Wouldn’t it have been wonderful if these self-published authors had been represented by literary agents?

  12. In any case, self-publishing isn't the issue here. The issue is agents expanding into publishing and/or publishing-like activities, and the conflict-of-interest concerns that arise when they do.

  13. Ebooks now outsell print, and that margin is only getting bigger.

    Ebooks outsell print on Amazon. Not, so far, overall–or even close.

    First, it seems like you're insinuating that legacy publishing works for everyone.

    No. I wouldn't say (or insinuate) such a thing for the simple reason that it isn't true. This is not a fair interpretation of my words. "Traditional publishing works for everyone" is not a necessary corollary of "self-publishing doesn't work for everyone." It's not a black-and-white issue.

    Instead new authors should toil for years, sending out queries, with their fingers crossed that maybe one day a legacy publisher will give them a $5k advance and 14.9% royalties on ebooks they price at $12.99?

    Or self-publish and get a 70% cut on a $2.99 ebook and sell a few dozen copies? Come on. Not every new author who goes the trad route will slave for years, or get a crap advance. Not every new writer who self-publishes will make big bucks. You say I'm implying that traditional publishing works for everyone–well, it certainly seems that you're implying that self-publishing works for everyone.

    I think that new authors should strive to inform themselves as fully as possible about their options, and choose the route that best fits their needs, skills and writing goals. Whether to seek an agent and a big-name publisher, to approach smaller publishers independently, or to self-publish is a decision that should be made on the basis of careful research, not hype.

    The thing that's really exciting (and scary too) about all the change in publishing right now is the proliferation of options. Writers can choose, in ways they never could before. In that context, advocating one route over all the others seems pretty short-sighted–whether you're championing self-publishing or traditional publishing.

  14. I'm concerned by this trend in general, and by the question of who will advocate for authors when agents, who are supposed to represent authors' interests to third parties, take on the third party role themselves.

    It's good that you're concerned. There are already some agents charging 50% for their epublishing services, and in my opinion that is outrageous. It is also a slippery slope if agents begin charging fees for cover art or formatting. That's identical to the PublishAmerica method, in my mind.

    But wariness shouldn't automatically become disapproval. Keeping wary is good, but so is being open-minded.

  15. In any case, I think it's premature–to say the least–to be declaring digital self-publishing as a "newer or more efficient method," and backbenching traditional publishing as "no longer relevant in the current context."

    Ebooks now outsell print, and that margin is only getting bigger.

    A distribution method that is instant and costs zero is much moire efficient than killing and shipping trees, and publishers' lock on distribution is no more. That makes them no longer relevant.

    that self-publishing is something that can work for anyone.

    Two ways to debate this. First, it seems like you're insinuating that legacy publishing works for everyone. In fact, it fails more people than it benefits, both in terms of wuthors it rejects, and authors it publishes who fail to make any money.

    A self-pubbed book will make money. Ebooks are forever. Forever is a long time to make money.

    Until we have a better idea of how representative these successful self-publishers are, new authors have little firm information to guide their decisions.

    Instead new authors should toil for years, sending out queries, with their fingers crossed that maybe one day a legacy publisher will give them a $5k advance and 14.9% royalties on ebooks they price at $12.99?

    I think it's clear what the better decision is.

  16. This requires that they acquire the rights to publish those books from the writer – it's spelled out right in the retailers' site terms.

    That's assuming they go through the retailers' sites, and not deal with them directly. My agents have made deals with Amazon. They can upload my ebooks while I keep the rights. Not an issue.

    With proper notice, we can each go our separate ways with, hopefully, no hard feelings.

    I've worked with them for 12 years. If I don't want them to rep a self-pubbed title for me anymore, I'd take it back from them. But if I keep the cover art and formatting they had paid for, I'd feel obliged to pay them for that, just as I'd pay a publisher for cover art use after rights reverted.

    I'm not saying this is what D&G has planned, but this is how I'd do it, and I don't see how they'd disagree.

    They're being vague about what, precisely, one gets for that 15%.

    For me, they're covering all costs, doing all the work, and doing all the upkeep.

    Yes, that can in fact produce a conflict of interest when writers come to them for advice on finding a publisher, but they make more money if they convince the writer to publish through them.

    Self pub offers no advance (let alone big advances) and no print sales to speak of, which still account for a lot of money. There will always be cases where legacy publishers off huge money that the writer can't pass up. D&G is also leaving it up to the writer to choose. As I said, I've worked with them 12 years. I've also disagreed with them on things over these years, and they always followed my wishes without fail.

  17. Just to clarify — I don't claim to know what Hocking's intentions or influences were. I was just using that example to illustrate a possible conflict of interest that exists in the current system.

  18. It will be very interesting to see how this comes out in the wash. Times they are definitely changing.

  19. I suspect that many of the people who assumed that Amanda Hocking was pressured into signing the deal with St. Martins also felt she sold out by moving away from self-publishing, and were searching for some way to make it look less like her own decision.

    Obviously we can't know what "really" happened, but the articulate blog post she made about the deal suggests some very concrete and sensible reasons for why she wanted to try something different.

  20. Barry said,

    I think you're defining the author/agent relationship premise too narrowly. Most fundamentally, the purpose — the end — of the agent is to help authors get their books to the greatest number of readers and achieve the greatest possible commercial and literary success.

    Perhaps I am defining the relationship premise narrowly. But I don't think that's necessarily a bad thing. I am really troubled by the conflicts of interest, and the attendant potential for abuse of authors, as agencies step into the role of publishers, quasi-publishers, "estributors," and what have you. Literary agenting is a completely unregulated profession (apart from the voluntary conduct codes imposed by agents' associations). That's one reason, unfortunately, why Writer Beware exists. For me, it's a scary thing to see agents hugely expanding that field of unregulated activity.

    By the same token, it's happening, and it's going to continue to happen, for a lot of reasons including the lure of new income streams. And every agency will probably go about it in a somewhat different way. That's why I feel it's important not just to embrace the agency-as-publisher trend, or question it, or condemn it–take your pick–but to establish at least some level of standards or guidelines to prevent bad dealing or abuse.

    Agents' associations are in the best position to do this, IMO (a bit like asking the foxes to come up with standards for the henhouse, but oh well)–they could simply expand their existing conduct codes to cover publishing activities. Will they? We'll see.

    I don't intend to pick on D&G or Andrea Brown in particular, by the way. I'm concerned by this trend in general, and by the question of who will advocate for authors when agents, who are supposed to represent authors' interests to third parties, take on the third party role themselves.

  21. I'm still uncomfortable with "legacy publisher." Perhaps it's not a term of contempt, but it does seem to be a term of dismissal.

    In any case, I think it's premature–to say the least–to be declaring digital self-publishing as a "newer or more efficient method," and backbenching traditional publishing as "no longer relevant in the current context." Unquestionably, something extraordinary is happening around digital self-publishing–but it's very early days, and I don't think that anyone can reliably say exactly what that will turn out to be. It may be a bubble; it may be the harbinger of a long-term change. We may hope, we may prognosticate–but we just don't know. All in all, I think it's quite a bit too soon to consign traditional publishing to the ash heap of history.

    (And BTW, I hate the term "traditional publishing" too, and resisted it for a long time, but have bowed to colloquial usage, in part because the past few years have established a fairly firm consensus on its meaning.)

    I also have a problem with the assumption that seems to be implicit in so much of the dialog about self-publishing, especially from self-pub advocates and self-pub successes: that self-publishing is something that can work for anyone. I don't think that's true, for new authors at least–and even if digital self-publishing has changed the game for writers wanting to break in (as opposed to established authors re-publishing their backlists), that's something that's certainly not proven at this point. We hear a lot from self-publishers who are making money on their Kindle books–but we aren't really hearing from those who aren't. Until we have a better idea of how representative these successful self-publishers are, new authors have little firm information to guide their decisions. It's never a good idea to rush into something based on hype.

  22. This is a positive trend for authors, books and publishing.

    It's helpful to view traditional publishers (or legacy publishers, or full service publishers, whatever we call them) as service providers.

    When they're working at their best, they provide the author much-needed services of editing, book production, sales, distribution, marketing, publicity and backoffice. A good publisher does for the author what the author cannot or will not do for themselves.

    Consider the publishing spectrum. At one extreme of the spectrum we have the full-service, rights-acquiring publisher, and at the other end you've got the 100% DIY self-pubber who does their own editing, book production, distribution, sales and marketing, etc.

    Between those two extremes lies a vast middle ground where agents can help fill the essential services void.

    Not all authors want to become their own publishers, yet many do want to take advantage of the freedom, flexibility and favorable economics of independent publishing.

    Agents will do for their authors what they've always been so strong at doing: maximizing the commercial potential of the author's property. The traditional vs. indie question is not either/or. Agents can help authors straddle both worlds.

  23. "Agency" is a legal concept, not something we can define at will. We will only start to learn the definitive answer as to whether literary agents who turn publisher are violating their agency responsibilities when an author with deep pockets sues their "agent" after one of these agent-turned-publisher deals goes sour.

    But with e-publishing there isn't a huge need for a middleman. ANY author can learn how to format and upload a book after a few days of study. Writers organizations are filled with authors who have done just that and many are generous with their advice and recommendations for cover artists and other professionals they've hired.

    I find it baffling how many established authors with backlists let their technophobia convince them that it must be too complicated and onerous to convert their books to e-form.

    It isn't. And taking a few days to figure out how to format a book for e-publication can pay you hundreds if not thousands of dollars an hour for each hour you invested in learning the techniques if your books go on to sell.

    One dirty little secret of e-publication is that the current e-publication formats make it impossible to format a book in any but the most primitive manner. So the expertise that used to be required to format a book so it would look right in print is no longer relevant.

    What's hard with e-publication is getting the books to sell once they are formatted and uploaded, and that is where you have to ask why would an agent bring this skill to the deal?

    Selling online is entirely different from selling anything at retail. There are known strategies that make for success selling online, but it is becoming obvious to me, as someone who has been successfully marketing products online since the 1980s, that very few people in any branch of book publishing know anything about them.

    The few people who do are being very selective in revealing to others what it was that made their book sell in this new environment. And many of those pioneer e-successes are early adopters who took advantage of clever strategies, like manipulating the Amazon lists by dropping price, that don't work when 5,000 other authors of similar works are all employing them at once.

    So ask hard questions about how any agent is going to enhance your ability to sell your e-books? What are they going to do to justify that 15% cut?

    Kindle doesn't negotiate with any but the million sellers. Unless you are one, your agent isn't going to be negotiating your contract with Kindle, Nook & Co. These services offer a take it or leave it deal.

    Your agent won't be keeping up with the accounting if you have your own Amazon or Pub-it accounts. In that case, the accounting is very simple. You take whatever Amazon etc. deposit into your account each month and you are forced to trust that the numbers they report are true because you have no way of independently verifying them. You also get to see your sales numbers every day.

    If your agent publishes your books on Kindle, Nook etc. through their company account you lose the ability to see your daily sales and control your price and page text. You will also get paid only when the agent gets around to paying you the money that was deposited each month in THEIR account. If they are slow to pay, who is going to take on the role the agent used to play when your publisher was slow to cut royalty checks?

    Bottom line: Be careful what you sign. The publishing landscape in two years from now will be as different from today's as was the landscape two years ago. My money is on a few big players emerging who will have the ability to reach large audiences with their e-books by targetting specific niches the way a few pioneering romance e-publishers have done.

    Whether you will need a middleman to deal with them remains to be seen. But the middleman you'll want will be one who has contacts and real insider expertise in that new market and who those agents will be also remains to be seen.

  24. Barry, Joe, maybe I am missing something here. But here's what I saw in D&G's two blog posts:

    1) They said they will "collect monies" for the writer. To collect monies on ebooks, they must be uploading the ebooks to their accounts. This requires that they acquire the rights to publish those books from the writer – it's spelled out right in the retailers' site terms. To upload a work legally, you must own the rights to epublish that book. Now, are they offering a good deal for those terms, bad, mediocre? I don't know. But they *must* acquire rights to do what they say they plan to do.

    2) They also said:
    "The last question everyone seems to be asking is whether they can terminate their agreement with us if they’re not happy with the job we’re doing. Yes. Of course. With proper notice, we can each go our separate ways with, hopefully, no hard feelings. (In that event, we will continue to collect our commission on properties we still manage.)"
    Again, a little unclear, but the implication here is that they intend to continue collecting commissions on works they acquired from writers even if the writer and D&G part ways. I could be misreading that; but that's what it looks like they said. First off, I'm not even sure that's legal. 😉 Second off, it's definitely not a deal I'd want.

    3) They're being vague about what, precisely, one gets for that 15%. OK, they will help you pick a cover artist, who you still have to pay. They'll help you pick an editor, who you still have to pay. I haven't seen them give any concrete information about just what services they will provide, because referrals for artists and editors is not worth 15%. 😉

    4) There is a dramatic difference between 15% of 70% and 15% of 17.5%. The former is what they will get for 15% of works they publish; the latter, smaller amount is what they will get for works they serve as agents for to a publisher. Bottom line: their take is much bigger on works they "help" publish. Yes, that can in fact produce a conflict of interest when writers come to them for advice on finding a publisher, but they make more money if they convince the writer to publish through them.

  25. I don't advocate signing deals where I love money.

    Heh heh. I meant "lose."

    All the deals I make are deals where I love money.

  26. Barry beat me here, so nothing really to add other than to respond to:

    Sort of invalidates his rants against commercial publishing when he signs up to pay 15% nonstop to his agents, you know?

    Perhaps you need a lesson to distinguish what a publisher is vs. what an agent is?

    My agent works for me. She earns her commission by selling my writing, and the better job she does, the more money she makes. My agent has never been involved with a deal for me that she hasn't been able to make better because of her involvement.

    I've never ranted against agents. A good agent makes the author more money than the author can make on his own.

    Publishers, however, have leveraged their monopoly over distributions into getting 52.5% of the list price of ebooks. It's worth ranting against that, because that number is obscene. This results in an author losing money.

    I don't advocate signing deals where I love money. And I don't expect this new deal with my agent to be a losing proposition either.

  27. I think you make a hugely important point with your Amanda Hocking example. The real conflict of interest, and the one I haven't heard pointed out anywhere else, arises when an agent with a single, legacy model has to advise a client who is considering self-publishing. Where do writers think they're likely to get the most disinterested advice: from an agent who can only make money if she sells the writer's manuscript to a legacy publisher and who stands to make nothing if the writer self-publishes it? Or from an agent that stands to make 15% either way?

    So upon further consideration, I do think that today there is a potential conflict of interest in agenting. It exists among those agencies who can only make money by directing their clients toward legacy deals.

  28. Hmm, having trouble posting again. Let me try this in two parts:

    Livia, even if I agreed that an agent's primary purpose is to place works with traditional publishers (I don't — again, I think this is a means, not the end), I wouldn't agree that a side-by-side model of 15% and no rights acquisition to assist authors who want to self-publish would represent a conflict of interest. This is because (getting back to the definition of the term) I don't see "multiple interests" in the additional model, nor any way in which one aspect of the business "could possibly corrupt the motivation for an act in the other."

    I have a hard time imagining agents nefariously trying to steer their clients to a new model whereby the agent's percentage is the same, but where there is no advance, where the agent has to invest significant additional time and her own money, and where there is no certainty of a return on the investment except perhaps in the very long term. So if anything, I think people might argue that agents who offer both models might be tempted to steer their clients toward a traditional deal because it represents a relatively quick and easy payday. But would this be a conflict of interest? An interesting question, because it ignores the fact that this is what agents have always done simply by default. Still, self-published authors, beware! Your agents might be trying to steer you toward legacy deals.

  29. I don't mean to express contempt for legacy publishers when I use that term. I use it because I think it's perfectly descriptive. Here's the Wikipedia definition of "Legacy System:"

    "A legacy system is an old method, technology, computer system, or application program that continues to be used, typically because it still functions for the users' needs, even though newer technology or more efficient methods of performing a task are now available. A legacy system may include procedures or terminology which are no longer relevant in the current context, and may hinder or confuse understanding of the methods or technologies used."

    The other phrase in vogue is "traditional publishers," but I don't think a reference to tradition (What traditions? Whose traditions? Are they good traditions? How did they become traditions? Should these traditions continue to be followed?)) gets to the essence of what the big publishers are as well as the phrase legacy publishers.

    Reasonable people might differ and we can argue at the margins, but here’s what a legacy publisher is to me. It’s a publisher that offers authors a shockingly low digital split–17.5% of retail, or 14.9% after the agent’s cut–while keeping 52.5% for itself; that insists on controlling packaging, pricing, and timing decisions; that slaves the digital release to the paper release because its business imperative is to retard the growth of digital and preserve the position of paper. These practices are all intended to maintain the primacy of paper and serve the perceived interests of publishers, at the expense of providers (authors) and customers (readers). This system does continue to function to serve certain users's needs, even though newer and more efficient methods are now available.

    For more on what makes a legacy publisher, here's an excellent discussion on Lee Goldberg's blog:

    And more in Be The Monkey, too (as well as more on what writers should look for in agents that can help them self-publish).

  30. I have lots of random thoughts about this, although Barry already beat me to some of them. I do agree that a lot of this depends on your definition of what a literary agent is supposed to do. If an agent's primary purpose is to place works with traditional publishers, then yes, this will be a conflict of interest, and a temptation to not work as hard in the submissions process. If an agent's focus is to try to make the author as much money as possible, then an argument can be made that having a method for self-publishing with an agent actually removes some conflict of interest. For example, when Amanda Hocking accepted that $2 million deal from St. Martin's, many people assumed that she was wrongly pressured by her agent to take the deal. The assumption there was that there was a clear conflict of interest for the agent. He didn't make any money off of her self published works, whereas he was looking at a hefty commission if she took the traditional deal. So in some ways, equalizing the amount of money an agent makes via both methods can actually decrease conflict of interest.

    I think a lot of it will come down to specifics, and why exactly a writer might work with a literary agent. If you have your heart set on traditional, then it may not be a good idea to sign with an agency that has a self publishing venture. It also depends on an individual agent's qualifications, and the services they are offering. I'm guessing that as has always been true, some agencies will earn their 15%, while others won't. Writers should be careful and conscientious as always.

  31. The term "legacy" publisher is just contempt for the old guard. It sounds cool to refer to them as old folks and to demean the hard work of editors, artists and the people behind the scenes and cut them down to simple idiots who can barely get a book published a year.

    It makes the SP people feel so much better than those of us who are stuck with commercial publishing, doncha know.


  32. And a question, because this is something that annoys me–what exactly is the term "legacy publisher" supposed to mean? I know what it designates–traditional trade publishers that pay advances. But what, in that context, does it actually mean? How is "legacy" appropriate to what a trade publisher does? Or is it just intended to convey contempt for the old guard?

  33. Barry, sorry about the overactive spam filter–it seems to dislike longer comments. Your comments are now posted. I've been doing outdoor work today and am exhausted, but will respond tomorrow.

  34. Victoria, I think you're conflating two business models: those in which literary agencies are trying to acquire rights in authors' works, as publishers always have; and those that acquire no rights, and instead simply facilitate their clients' self-publishing efforts.

    We're still in the early days of digital publishing, and it's natural that there's some confusion about what makes a "publisher." Most of what people associate with a publisher — editing, marketing, distribution — are the artifacts, not the essence. The essence of publishing is control of rights.

    For the reasons Joe Konrath and I discussed in Part 3 of our online conversation Be The Monkey, Amazon's Thomas & Mercer is no legacy publisher. But there's no question that T&M is, in fact, a publisher, because the company is buying the rights to the books it sells. By contrast, no matter who she chooses to hire to assist her in getting her works to readers, an author who retains rights to her works is self-published. And the company she hires to help her is not a publisher.

    As for "agencies who assist self-published authors have a conflict of interest !", it'll be interesting to see how long this meme can survive contact with the real world. Part of the problem might be a lack of clarity about what the term means. Here's a link to Wikipedia that I hope will help.

    "A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other."

    As David notes, it's hard to see how this applies to an agent who in neither instance acquires rights and in both instances earns the same percentage. As long as the agent makes the same 15% whether brokering a sale to a legacy publisher or assisting the author publish the work herself, the agent is incentivized to recommend the route that looks most likely to make the author the most money. So no hidden incentives, or at least no more so than has been the case with traditional agenting.

    Full disclosure, so that people can judge for themselves whether I have my own conflict here: Laura Rennert of the AB Lit Agency (which is also assisting its clients who want to self-publish with a 15%, no-rights-acquisition model) is my wife.

    Here's a thought experiment I hope will lead to some more clarity on this issue. Imagine you're an author, and you have offers of representation from two literary agencies that are identical in all respects save one: one will assist its clients in reaching readers only by attempting to sell its clients' works to legacy publishers; the other will assist its clients in reaching readers by attempting to sell its clients' works to legacy publishers *and* will also help clients self-publish their works if their clients so desire.

    Which offer do you accept?

    Unless you're sure that: (i) you will never self-publish anything; or (ii) that even if you do, you will handle it all yourself, I think it's pretty clear that you'd go with the agency that offered you the more complete set of services.

  35. Victoria, you ask, ["Will D&G] take on clients whose manuscripts are never marketed to other publishers at all?" Again, the phrase "other publishers" is inapposite, but that aside, why wouldn't they? The alternatives make no sense. Should D&G turn away potential clients who are committed to self-publishing and who have no desire to go the legacy route? Who would benefit from such a policy? Shouldn't the author/agency relationship be fundamentally author-driven?

    You say that "[T]he author-agent relationship… is founded on the premise that the agent's job is to sell the client's work for the best possible advance to the best possible publisher."

    I think you're defining the author/agent relationship premise too narrowly. Most fundamentally, the purpose — the end — of the agent is to help authors get their books to the greatest number of readers and achieve the greatest possible commercial and literary success. The means by which this end has traditionally been achieved is a sale to a legacy publisher. Because the "sale to a publisher" route has until quite recently been the only means to the "getting the book to the greatest number of readers and achieve the greatest possible commercial and literary success" end, it's easy to conflate the two. But just as railroads were not in the railroad business, but rather were in the transportation business, agents are not in the "selling to publishers" business, but rather are in the "helping their authors reach the greatest number of readers and achieve the greatest possible commercial and literary success" business. Agents who miss this fundamental distinction are making the same mistake the railroad companies made, and will achieve similar results.

    I think you sense as much, because you ask of agencies like D&G, "[W]hat's to prevent you, over time, from slipping away from [the resolve to capitalize on your clients' deepest vulnerability–which is, precisely, the desire to be published], especially if the traditional publishing market continues to contract and your own publishing venture proves to be lucrative?"

    What you call "capitalizing on client vulnerabilities," I call "presenting clients with another option." An option that will become increasingly important for writers as legacy publishers continue to contract as you suggest. Again, which of the two hypothetical agencies I describe above would a writer want for representation as legacy publishing contracts? The one that says, "Sorry, we can't sell your manuscript because there are so few buyers?" Or the one that says, "We can't sell your manuscript because there are so few buyers, but we can help you another way?"

    Whether 15% is worth it is something authors and agencies will have to decide for themselves (I think David is asking excellent questions in this regard, and Joe and I talk about it much more in Be The Monkey). But whether a service is worth providing or worth retaining at a given price is a question for the market to decide. It has nothing to do with conflicts of interest, or with the inherent value of agencies finding news ways to assist their clients reach the greatest number of readers and achieve the greatest possible commercial and literary success.

  36. Hear hear! I've been thinking about this since the announcement went up, since DGLM is/was one of the top agencies I was planning to query when it came time, but only to pursue traditional publishing. Unless they were also acting as my publicist, I don't think I'd want an agency's help in self-publishing. It'll be interesting to see how their proposed set-up plays out. One of my main concerns as other agencies follow suit is that it will become more difficult to distinguish between agencies helping you self-publish, vanity e-publishers, and so on. Of course research is key, but when the language and divisions start getting even more technical, a lot of writers will be lost.

  37. I am really so curious to see how the landscape for publishing, agenting, AND writing changes over the next several months/years. Definitely time to practice a little flexibility!

  38. Its beneficial and controversial at the same time. Its beneficial, in the way it's handy if your agent is having a hard time selling your book, but is controversial because the publisher should be a separate entity. I hope it works, we'll see….

  39. I agree with you about the competency issue, Dave. Also of concern: how much time/energy will a focus on self-publishing pull from an agency's core function of selling books to publishers?

    I think that a distinction can be made between publishing new writers and publishing one's own new writers. An agency publishing imprint could be run ethically if there were an impenetrable wall between the agency and the publisher–no crossover at all (apart, perhaps, from backlist). It's where you get into publishing your own clients' unpubbed manuscripts that things get ethically sticky.

  40. Victoria,

    That is a valid concern, for sure.

    As for the rest, the devil may be in the details, and it's tricky to judge how it will all work out on the basis of a couple of blog posts.

    Just as a side note, Ed Victor said that he wouldn't be limiting himself to backlists either, and that he would (eventually) be seeking new writers. That's when my alarm bells really went off.

    From a self-publisher's perspective, my concerns with DGLM's proposal would be somewhat different. It would be less about ethics and more about competency.

    Publishing is a very different skill-set to agenting. And self-publishing is a very different skill-set to trade publishing.

    If I was to purely analyze this from a business perspective (and forget the ethics for a moment), I would have a ton of questions.

    What exactly are you getting for that 15%? What promotional services will it include? Can it be limited to 5 years or 10 years, or will my kids be cutting the agency checks long after I am gone?

    What if I want to fire my agent? What if they are no good at the job? Where’s my “out”? Are there performance targets built into the contract?

    Will this agent be better at managing my business than I am? Do they have the capacity to grow the business enough to more than cover their cut?

    I could ask another 20 questions about how much they know about the nuts-and-bolts of self-publishing, but I think you get the idea.


  41. Dave,

    I do agree that as a model for agency backlist publishing, D&G's apparent 15% commission setup (and I say "apparent," because we really know very little about the mechanics of how all this will work) is a much less ethically-fraught method than setting up a special publishing imprint and taking 50%.

    But it doesn't look to me as if D&G will be confining itself to backlist publishing–and it's precisely the unpublished mss. I'm concerned about, for just the reasons you express.

  42. Hi Victoria,

    I find this less troubling than the agents who are actually setting up publishing imprints to publish their clients' backlists.

    My reasoning is that an agent who stands to make 30% or 50% from publishing your backlist cannot be impartial in advising you which deal to take. How can you trust that they are passing on all reasonable offers to you when they stand to make more personally from publishing your themselves.

    If we can take DGLM's statements "as is", the distinction, for me, with what they are proposing is that their agency fee doesn't change. They take 15% whether you publish with them or someone else. Their financial interests are still aligned with yours, so there should be less conflict.

    Also, is there a qualitative difference here? If we take the publisher as being the person who controls the rights, are DGLM doing that? Or are they just providing advice to their clients who wish to self-publish?

    Perhaps I am only looking at this from my own perspective (that of a self-published writer).

    When you throw unpublished writers into the mix, and if the agency is proposing aiding them with their self-publishing ventures before shopping them to any publishing houses, then that may be a different matter – especially if the writer submitted to the agency with the goal of attaining a trade publishing deal.

    The worry in that case is that the agency (and I am not necessarily referencing DGLM here) could attempt to save on the expense of shopping their manuscript, and just throw the self-publishing spaghetti against the wall to see what sticks.


  43. I find it funny that Konrath, the Guru of Self-Pubbing, has signed up with them.

    Sort of invalidates his rants against commercial publishing when he signs up to pay 15% nonstop to his agents, youknow?

  44. I believe a bold line needs to be drawn between agencies that are acting as publishers for their clients' work and those that are acting as facilitators to help their clients do their own self-publishing.

    For example, if your agent sets up an agency account at Amazon through which they upload your book for you, but they're only taking a standard 15% cut of the royalties Amazon pays out (the same way they would if the book was published via traditional publishing), they aren't acting as your publisher, they're acting as your agent.

    To me, what Dystel & Goderish is doing doesn't appear to be at all the same thing as what, for example, Ed Victor Ltd. is choosing to do.

  45. I foresee agents' percentages rising in the near future, ostensibly to cover the additional expenses.

  46. Here's another conundrum: What happens to the agent/writer relationship when the writer turns down the agent's/agency's help in self-publishing to do it independently? Will the agent still feel as committed and as passionate about the writer's work after having been, in effect, rejected?

  47. Before much longer it seems you'll need an agent to deal with your agent who is now also your publisher. Of course if authors are smart they'll ask what the agency is really going to do for them. Anyone can throw a book up on Kindle, Smashwords, etc. It's not hard if you're even a smidge tech savvy. So what kind of marketing support is the agency going to give me? And unless they plan on you doing it yourself, doesn't that mean they have to hire people to do the formatting, covers, and so forth? By edging into publishing they're also taking on some of the inherent risks. Maybe it'll pay off or maybe it won't.

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