"It appears that the current administrators of the Vicinanza Agency are positing that it’s appropriate for them to take fifteen percent of their authors’ (and our members’) income for essentially being nothing more than a post office box for publishers to send checks. We strongly disagree with this position. Mr. Vicinanza and the agents in the company earned that fifteen percent by representing the interests of their clients with active, affirmative agency and continued to do so through until his death. The fifteen percent was not an award; it was payment for work done on behalf of the authors and their careers. Simply put, the fee was not given but earned – and earned on a day to day basis.
"The current administrators of the Vicinanza Agency have no intention of continuing to earn the fees coming into the agency, and thus in effect see the fees as something akin to an entitlement, based on work they themselves did not do, and for which they have neither interest nor ability to continue. We believe this is not a neutral assertion for their authors and our members. It means our members are deprived both of income they have earned and the benefit of active, engaged agency. It means that our members must accept that in order to extract full value from their work, they have to pay off parties wholly unengaged in the economic life of the work. It means, in short, that it becomes harder for our members to make a living off their own work. This is unambiguously a negative outcome for our members."
Thursday, June 09, 2011
SFWA vs Ralph Vicinanza Literary Agency
I recently received a notice from SFWA (Science Fiction and Fantasy Writers of America) regarding the Ralph Vicinanza Literary Agency and it's such a juicy morsel that I have to tear into it with gusto.
If you are not aware, Ralph Vicinanza, a highly respected and successful literary agent, died some months ago. Working with him were two other highly regarded agents, Chris Lotts and Christopher Schelling. Much to my surprise, Ralph doesn't seem to have created much of a succession plan, e.g., he apparently never made any other agent a partner in the firm or designated clearly what should happen to his firm upon his death. As it is, the firm is now going to become a hollowed-out shell, it seems.
According to the notice from SFWA, "the executors of the Vicinanza estate have chosen not to engage in further active agency. Their current position is to act as passive conduits for deals already in place. They have told their authors to seek other representation."
To me, this is akin to closing down a successful clothing store because the owner died, yet there are two very experienced tailors standing around waiting to help any customers who come in.
The obvious solution would have been to sell the firm to Lotts and Schelling for some very healthy sum and allow them to pay it off over time (with interest, of course) while also requiring that all of Ralph's income be paid out to the estate. Thus, the VLS Literary Agency could have been born and authors would have benefited and much drama would have been avoided. But that did not happen. Perhaps Chris and Chris don't get along? I don't know. Perhaps what I suggested was attempted but terms could not be agreed upon. I don't know. But it seems a damn shame that something an agent worked his life to build is now being gutted.
Alas, this is not the first time I have seen something like this happen. When Scott Meredith of the Scott Meredith Literary Agency died, his three top lieutenants did try to make a deal to take over, but could not. And thus was born the Scovil Chichak Galen Literary Agency, my first home as an agent. SMLA was ultimately acquired by Arthur Klebenoff, who is also now the CEO of RosettaBooks LLC and a genuine pioneer in the eBook business. But his role with regard to SMLA appears to be that of a caretaker. I don't know how many of the old SMLA clients may still be actively represented there, but I do know that many of the major clients left to go to SCG or other agencies.
In another example, when an agent representing numerous bestsellers passed away suddenly and without a succession plan, the estate did something smart: they hired another agency to handle matters related to the deceased's agency, thus offering continued representation to any author who wanted it and avoiding claims that the agency was no longer earning its commission. Which brings me to the next part of the SFWA notice.
It has long been the accepted policy in the publishing industry that an agent's commission attaches with the submission, if not earlier, of a project. This means that when an agent submits a book to a publisher, if the book sells as a result of that submission, the agent is due his or her commission. This is true even if the author and agent part ways while the book is on submission. And even if you disagree with that position, then certainly anyone must agree that if a contract was signed naming the agency as the agent of record, then the commission has attached. No publisher would ever stop paying an agent upon receipt of notice by the author. Most will not even separate the agent's commission and author's earnings at the source, paying each separately, without a written contract amendment signed by the author and usually by the agent. An author trying to separate the commission at the source would generally be in breach of his or her agency agreement (if one exists). Some publishers might stop paying altogether until the agent and author work it out to the publisher's satisfaction
SFWA's contention that "The current administrators of the Vicinanza Agency have no intention of continuing to earn the fees coming into the agency, and thus in effect see the fees as something akin to an entitlement, based on work they themselves did not do, and for which they have neither interest nor ability to continue," implies that the administrators have a continuing obligation to the authors beyond servicing their current contracts. If this position were somehow upheld in a court of law, it would radically and permanently change the relationship between authors and agents.
Let's face it, agents and authors part ways. It happens all the time and sometimes there are millions of dollars in contracts involved. And what usually happens is that the agent who has been left continues to administer the contracts he or she is the agent of record on, collects the money, and pays the author what he or she is due. And the author finds a new agent and that new agent administers the old deals in terms of working with the editor on any issues, e.g., cover art and copy, for no commission. Does this sometimes result in a bit of a ball-and-chain relationship between the old agent and the author? Perhaps. Which is why it is always important that agents and authors part ways amicably. And when this is not possible, then at least if both behave in a professional manner, things should progress smoothly enough going forward. I am regularly engaged with editors or publishers' royalty departments on issues related to clients I no longer actively represent. In fact, with eBooks becoming such a large part of the business, I am often dealing with issues related to eBooks for clients I do not currently represent, but on whose contracts I am the agent of record. Perhaps if these clients had current representation, this would not be the case, but they do not and so I am happy to be of service.
However, if one accepts what SFWA says, then every time an author leaves an agent or an agent terminates a relationship with an author, the agent's right to commission would terminate. And that has never been the case in the publishing world. Nor should it be.
Let's take the hypothetical case of a New York Times bestselling author who hasn't always been so successful. Let's say he came to the agent with a first novel and the agent shopped it and shopped it, finally selling it to a small press. Not much happened with it. The author wrote another novel and the agent shopped it and found a deal with a larger publisher and—low and behold—the book becomes a bestseller. Now the author suddenly feels he needs to be represented by a "bigger" agency, since he is a bestselling author. Should his first agent, who represented him tirelessly and found him the deals that led to his success, suddenly be cut off from the commission on the bestselling book? I don't think anyone in this business would think that's fair and, presuming a standard agency clause, it wouldn't be contractually permissible.
Agents work on commission. In some cases, they put in an enormous amount of work on an author's book editorially before submitting it, but I have never heard an agent lay claim to a share of copyright in a work. An agent may shop a book for months or even years before it sells, earning nothing during that time. And why do they do that? Because they are hoping for a successful book that will, in fact, become an annuity providing regular commissions on royalties earned for years to come.
While there is no doubt quite a bit of merit to be found in the SFWA notice, much of what is posited clearly flies in the face of long-established industry tradition. I do agree that there's an issue with agents who are considering taking on former RVLA clients asking for additional commission to service contracts but, one must ask if it is reasonable to ask an agent to work for nothing on a deal that was already done. RVLA does have a responsibility to service the contracts for which it is the agency of record but, contrary to how SFWA describes, I see no evidence that it is unwilling to do so. Perhaps the question here is, "What does it mean for an agent to service a contract?"
No agency agreement promises an author lifetime representation. Nor does it guarantee deals with publishers. And generally they do have termination clauses that need to be considered, as do the terms of the agency clause in the author's contract. The truth is that most agency agreements do create a situation wherein, after termination, the agency is primarily dealing with the processing of funds, which RVLA has stated it will continue to handle. However, will it review statements, looking for errors? Will it contact publishers if it finds an error? It should, since it will benefit. Will it run interference with an editor if the author is late? Perhaps not, but does the agency agreement or clause state that it will? In my experience, agent/author contracts simply aren't that detailed in terms of the actual services.
From where I sit, SFWA has taken too aggressive a position with RVLA with its recent notice to members and I would urge it to issue a less inflammatory addendum, reminding its members that agency agreements and clauses are designed to protect both parties, not just authors. In reading that "SFWA is also moving forward to create a sample agency contract clause in an effort to suggest a way that other members might avoid similar situations," I couldn't help but think that such a creation would likely lead to far more conflict between agents and authors, rather than cooperation. For just as publishers do not accept the Authors Guild Model Book Contract, I envision few agents accepting SFWA's model agency clause.
I believe that SFWA needs to be a voice of reason in this matter, perhaps with the assistance of its counsel, rather than working to rally authors to a cause. Agents and authors are not enemies. They are partners. And like many partnerships, sometimes the relationship between agent and author comes to an end. In the sad case of RVLA, these relationships ended because of a tragic death. Let's not show disrespect for all that Ralph Vicinanza built by trying to gut it. Instead, why not respect his memory by working with his estate so that he can pass along the fruits of his labors to his family?
Posted by Andrew Zack at 4:44 PM