This development has created some tensions among their clients and unease in the author community in general.  How should authors regard it?

Seller vs. Buyer

The traditional role of literary agents is that of advocates for the authors they represent. Their clients are the sellers engaged in arms length – and sometimes adversarial – relationships with publishers – the buyers.  Agents have a legal, ethical, and fiduciary obligation to promote, protect and manage their clients’ interests, and authors rely on their agents’ unalloyed partisanship.

At least that is the theory. In actuality agents’ allegiance is rarely unalloyed, and they often find it strained or even conflicted. Friendships with editors, for instance, may compromise an agent’s impartiality. Or an agent may have to favor one client over another when awarding a coveted project.

These tensions are unavoidable, and though they may occasionally tax an agent’s relationship with an author they are rarely so flagrant as to violate the Association of Authors’ Representatives’ Canon of Ethics, whose first principle states: “The members pledge themselves to loyal service to their clients’ business and artistic needs, and will allow no conflicts of interest that would interfere with such service.”

It was owing to this injunction – which I helped to forge as a member and then president of the AAR – that I felt it best to leave the organization ten years ago when I founded E-Reads, the e-book publishing company that hosts this essay. I ask you to keep that fact in mind as you read these observations, and to discount them to whatever degree you may judge appropriate.

The AAR’s stern precept prevailed until the arrival of the digital age. As in so many other fields of endeavor, the digitization of books has had a profoundly destabilizing effect on relationships that had remained fixed for more than a century. The new technology has disintermediated all agencies – not just literary – that once stood staunchly between sellers and buyers. Now authors can – and increasingly do – sell to publishers without the intervention of an agent.

Squeezed out of their customary role, literary agents have been forced to reinvent themselves and seek new ways to be relevant to authors – and make a living at it. As I mentioned in a recent series of articles, many have developed management services such as creation of websites for clients, assistance with social networking, and marketing and public relations. (See Middlemen in Search of a Middle Part 1, Part 2)

These offices sit well within the ethical boundary defined by the AAR, the principal guild for literary agencies in the United States.

Assuming the role of publisher, however, pushes agents much closer to that boundary. And some authors believe the line has been crossed. For that reason the AAR recently reaffirmed, in no uncertain terms, its commitment to the fundamental principle that in all cases, member agents “may receive compensation only from the client for the member’s services; the member may not separately engage in any business from which the member receives separate profit/compensation with respect to the exploitation of the client’s work in any medium, including e-publication.”

Where’s the Conflict?

The obvious source of conflict is that an agent’s advocacy for the author may be tinged if not tainted by the agent’s self-interest as a buyer.  In determining the disposition of a client’s property, the agent must now promote his own publishing company as a valid candidate for publication. Is the agent’s e-book company better than Random House, HarperCollins or Simon & Schuster?  It may actually be, but the agent has disqualified himself from objectively advising his client one way or another. This puts the author in a quandary: whom can he or she now turn to for an unbiased evaluation?

Obviously the answer depends on the agent’s integrity. But it stands to reason that authors in that position should be offered the opportunity to engage a disinterested third party – a lawyer or another agent or the Authors Guild – to objectively evaluate his or her options.

As we said previously, as the publishing industry rebuilds itself from the ground up, every denizen of the ecosystem must not just adapt but reconstitute. Agents are no exception, and it is entirely possible that a decade from now their role will have only the faintest resemblance to that of hustling for commissions today.

Richard Curtis

Powerful, Proven Tools to Manage Ebook Publishing, Metadata, Distribution and Sales Reporting

LOS GATOS, Calif., November 17, 2011 — Smashwords, the leading distributor of indie ebooks, today introduced a new service for literary agents. The service provides literary agents simple but powerful tools to manage the publication and distribution of their clients’ indie ebooks. Service highlights include free ebook conversions, centralized metadata management, distribution to major worldwide ebook retailers, time-saving aggregated sales reporting across all retailers, and special merchandising at Smashwords.com.

“Literary agents will write the next chapter of the indie ebook revolution,” said Mark Coker, founder and CEO of Smashwords. “Agents represent the most commercially successful authors. These authors are now asking their agents to add e-publishing services to exploit the potential of their reverted-rights works and unpublished works. Although all authors have the freedom to self-publish, many would prefer to delegate the e-publishing and back office duties to their agent so the author can focus their energy on writing.”

Over 32,000 authors, small presses and literary agents have utilized Smashwords to release 85,000 ebooks in the last three years. 7,500 of these titles were released in the last 30 days.

Until recently, the Smashwords platform labeled literary agents as “Publishers,” even though most agents consider their authors the publishers of record. To address this subtle but important nuance of metadata labeling, Smashwords created this new service expressly for literary agents.

Agents have the ability to upload multiple books on behalf of multiple clients.Agented books appear as “Written by [Author Name], Agented by [Agency Name].”

When Smashwords distributes the book to retailers such as the Apple iBookstore, Barnes & Noble, Sony, Kobo and Diesel, the author is recognized as the publisher, not the agent.

Smashwords has also introduced a new home page catalog to showcase agented works, making it easy for readers to browse ebooks represented and curated by literary agents.

To work with Smashwords, agents simply sign up for a free Smashwords account, upgrade the account to Agent status (also free), and then upload books and metadata on behalf of their clients. A co-branded bookstore within Smashwords showcases the agency’s clients and allows readers to view books by recent releases, best-sellers, and highest rated. When readers browse the book pages of agented books, they enjoy contextual discovery links such as “Other books by this author” and “Other books from this agent.”

The Smashwords Agent service makes e-publishing fast, free and easy for literary agents. Service benefits include:

• Centralized metadata management – Agents control the book’s price (Smashwords retailers don’t discount), marketing description and other metadata at their Smashwords Dashboard. They make a single change once and Smashwords propagates
the update to all retailers.
• Aggregated sales reporting saves time – Each quarterly payment includes a downloadable report that makes it easy to map earnings to each of the agency’s authors. Agents can perform custom queries to provide authors granular sales reporting by title, date and retailer.
• Distribution to leading e-retailers – Smashwords distributes to the Apple iBookstore (32 countries), Barnes & Noble, Sony, Kobo and the Diesel eBookstore. Amazon distribution is available through Smashwords on request. Books are also distributed to the native catalogs of leading mobile e-reading apps including Aldiko for Android devices and Stanza for the iPhone/iPod Touch. More distribution points in the works.
• Free – No fees for ebook conversion or setup. Smashwords earns a 10% of list price commission for books sold through major retailers (agent receives 60% list). The commission for sales through the Smashwords.com retail store is 15% net after credit card fees, with 85% net going to the agent.

Multiple literary agencies – including Dystel & Goderich Literary Management, the Beverley Slopen Agency and Larsen Pomada Literary Agents – are utilizing Smashwords to publish and distribute ebooks on behalf of their clients. Diversion Books, a publisher founded by literary agent Scott Waxman, is also a Smashwords client.

What literary agents are saying about Smashwords: “Smashwords has offered what many other self-publishing platforms do not, a way for agents to be involved with digital publishing without having to take on the title of ‘Publisher,’” said Abby Reilly, E-Book Project Manager at Dystel & Goderich Literary Management, based in New York. “Giving our clients a space in the new and exciting world of digital publishing, while continuing to shepherd all aspects of their literary careers, is a thrilling challenge for our agency. We are delighted to be working with Smashwords to make this happen.”

“Smashwords makes it easy to begin exploring the new digital terrain,” said Beverley Slopen, whose literary agency shares her name and is based in Toronto, Canada. “It is an exciting time in publishing, a time like no other, and our authors want to be there. They are pushing us to broaden our knowledge and our skill set. While ebook publishing is not a substitute for traditional publishing, it adds an amazing new dimension.”

“I have been an avid Smashwords supporter since its inception, and over the past three years have integrated digital publishing initiatives in the career plans of all my clients,” said Laurie McLean of Larsen Pomada Literary Agents in San Francisco. “Most of my clients have both traditionally published books and ebooks in their bag of tricks, and it is exciting to see how they complement each other. While many people have been bashing literary agents as gatekeepers of the old guard in publishing, I feel that digitally-engaged agents are the perfect mentors to guide authors through these turbulent waters of opportunity. The new Smashwords Agent service has made my job even easier.”

Literary Agents – How to Get Started with Smashwords

Visit www.smashwords.com to sign up for a free account in the name of your agency. The confirmation email you receive will walk you through next steps. The “How to Publish at Smashwords” link on the home page at https://www.smashwords.com/about/how_to_publish_on_smashwords provides helpful links to a vast array of Smashwords resources.

For an online presentation outlining the opportunity for agents to serve the indie e-publishing needs of their clients, see this post at the Smashwords Blog and its accompanying Slideshare presentation, the Literary Agent’s Indie Ebook Roadmap: http://blog.smashwords.com/2011/08/literary-agents-indie-ebook-roadmap.html
or visit www.slideshare.net/Smashwords

About Smashwords
Founded in 2008, Smashwords is the world’s leading distributor of indie ebooks. More than 32,000 authors, small presses and literary agents publish over 85,000 indie ebooks at Smashwords. Smashwords has released over 7,500 ebooks in the last 30 days.

Smashwords makes it fast, free and easy for the world’s authors, publishers and literary agents to publish and distribute multi-format ebooks. Smashwords distributes to major online retailers such as the Apple iBookstore, Barnes & Noble, Sony, Kobo and the Diesel eBook Store, and also distributes to the leading mobile e-reading apps such as Aldiko, Stanza and FBReader. Smashwords is based in Los Gatos, California, and can be reached on the web at http://www.smashwords.com/. Visit the official Smashwords blog at http://blog.smashwords.com/.

The service provides literary agents simple but powerful tools to manage the publication and distribution of their clients’ indie ebooks. Service highlights include free ebook conversions, centralized metadata management, distribution to major worldwide ebook retailers, time-saving aggregated sales reporting across all retailers, and special merchandising at Smashwords.com.

“Literary agents will write the next chapter of the indie ebook revolution,” said Mark Coker, founder and CEO of Smashwords. “Agents represent the most commercially successful authors. These authors are now asking their agents to add e-publishing services to exploit the potential of their reverted-rights works and unpublished works. Although all authors have the freedom to self-publish, many would prefer to delegate the e-publishing and back office duties to their agent so the author can focus their energy on writing.”

For details, click on Smashwords’ release.

Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It’s reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

“Force majeure,” “net proceeds,” “matching option,” “warranty,” “discount” – these need to be defined for the novice author. There are many difficult concepts to be grasped, such as “advance sale,” “midlist,” “fair use,” “reserve against returns,” “pass-through,” and “hard-soft deals.” The language has its own slang, too, and our initiate hears bewildering references to who handles the “sub rights,” what is the tentative “pub date,” and what happens when the book is “o.p.’d.”

Agents patiently try to demystify these terms, but it may take many years of experience before our clients are completely at ease with them. Click here for details.

Richard Curtis

************

If you do something so horrendous as to provoke your agent to declare “Life is too short,” you’d better start looking for someone else to handle your work. It means you have tried his or her patience beyond its limit. You’re a dead author walking.

We recently described good timing as one of the most important virtues a literary agent can bring to the job. There’s another that most good agents possess, and that’s patience. If timing is the art of “when to,” patience is the art of “when not to.” Unfortunately, that often means when not to knock my head against a wall, wring an author’s throat, or hop in a taxi, race over to a publisher’s office and trash it.

Read how agents’ patience is tried. And ask yourself whether you have a high PITA Factor.

Richard Curtis

It is worth noting here that there’s one dog that hasn’t barked. Richard Curtis was the first ebook publishing agent. He set up his E-Reads business over a decade ago. He also pays 50% royalties. Richard did not create E-Reads to compete with publishers on royalties but because when he did publishers just wouldn’t do the ebooks. He has built his enterprise since that time to nearly a $1 million annual business (meaning that he’s delivering half-a-million a year to authors for properties that, at least until very recently and perhaps still, would never have been put into ebooks by a publisher.) But his name is noticeably absent from the chorus using higher ebook royalties as a public prod to bedevil publishers.

For the complete article click here.

From the interview:

“Agents find themselves more and more providing services they never needed to render in the past: cover approval, correcting cover copy, editing, spellchecking authors’ manuscripts, marketing and other tasks that should be the publisher’s, but publishers either can’t or won’t do some of these things. They keep pushing the burden of responsibility back on the author. And if the author can’t do it or is helpless or doesn’t want to, the agent has to do it…

“Sure.  Why do you ask?”

“I haven’t heard a peep out of you all day long.”

“Actually, I’ve been wheeling and dealing.  Just closed a six figure deal in fact.”

“On the phone?”

“No. Online.”

She shook her head.  “Boy, it’s not like the old days.”

She was right about that.  Aside from all the other ways publishing has changed since the turn of the 21st century, very little business is conducted on the phone any more.  The wheeling and dealing are now performed online.

I accept this new condition but I hate it.

I became aware of the shifting customs a couple of years ago when, in a burst of frustration, I complained to an editor that she’d ignored three phone calls.  “No I haven’t,” she said.  “Read your email.”  And there was a message from her: “If you’re calling about the option clause, we accept your language.”

“You couldn’t have said this to me over the phone?”

“Nothing personal. I’m just more comfortable with email, and besides, it leaves a written record”

“What if I hadn’t been calling about the option?  What if I’d been calling to offer you a combination of James Patterson, Dan Brown and Nora Roberts?”

“An email pitch would have been perfectly fine,” she said. “I respond instantly to emails.”

And that’s when I knew the game had indeed changed.

No, I don’t take it personally but as a natural-born shmoozer, delivering messages via my fingertips instead of by mouth is an emotional hardship. What makes it even more upsetting is that this phenomenon is occurring in the most articulate branch of the communications industry. Luckily, authors still like to talk on the phone, so I get plenty of opportunities to exercise my mandibular, glossal and laryngial muscles.

It was some – but not a lot of – comfort to learn that this shift away from phones is not restricted to publishing. Pamela Paul, writing in the New York Times, says “In the last five years, full-fledged adults have seemingly given up the telephone — land line, mobile, voice mail and all. According to Nielsen Media, even on cellphones, voice spending has been trending downward, with text spending expected to surpass it within three years.”

And Paul confirms my own observation that the lapse into silence has even infected industries where everything worth expressing was expressed in talk. “Even in fields where workers of various stripes (publicists, agents, salespeople) traditionally conducted much of their business by phone, hoping to catch a coveted decision-maker off-guard or in a down moment, the phone stays on the hook.”

Well, I suppose that as long as deals and offers continue to roll in via email I shouldn’t complain. But if you want to get an earful, pick up the phone and call me. Please?

Read Don’t Call Me, I Won’t Call You.

Richard Curtis

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the New York Times.

In the mid-1990s, as the Digital Age dawned, I published an essay called Author? What’s an Author? In essence I said that digital technology would force authors and publishers to redefine themselves. Implicit was that agents would have to do so, too.  But the time has come to get explicit.  How are agents redefining their role in the publishing process in the twenty-first century?

In Part 1 of this article we described the forces squeezing agents out of the middle. Now let’s explore a few ways that agents are reinventing themselves to restore their value both to authors and publishers.

Client Services. Over the past few decades, as economic woes forced publishers to curtail editorial services and courtesies that were once taken for granted, agents have stepped into the breach, doing things for their authors that are a far cry from the wheeler-dealer profile of the old ten-percenters.

Among the activities agents routinely perform today are writing proposals, editing manuscripts, composing cover copy, designing covers, developing websites, media and social networking coaching, and more. Folio Literary Management‘s Paige Wheeler “offers the services of a marketing department, a licensing arm and a speakers bureau,” she said in The Evolution of the Literary Agent, a forum conducted by Writers Digest‘s Jane Friedman. (For some unusual services that agents perform, read What I Have Done for You Lately)

Until now, many of these services were proffered gratis, but some agents have begun to feel that in order to perform them competently and professionally they must monetize them.  For some that means raising commissions, for others, charging management fees. Such arrangements are more common in Hollywood, where the talent pays managers to handle legal matters, public relations and social networking. But of course, in Hollywood the talent is a lot richer than garden-variety book authors.

Marketing and Media Coaching. Some agents specialize in training authors in self-promotion and professional speaking. Agent Wendy Keller of Keller Media says “My agency has been working since 1991 to not only sell books, but also train people to become paid professional speakers and to become the type of self-promoting, marketing-savvy authors whose books actually sell. Most important, we teach authors how to test their content before it is turned into a book, so that all possible risks are reduced in advance.” The forward-looking Keller says “Keller Media has always striven to stay on the cutting edge, forcing our authors to build websites or blogs long before most people knew what that meant. Now, we push them to do YouTube shorts, vlogs and sometimes iPhone apps.”

Agent-Publishers. Some agents have started e-book publishing companies.  I launched E-Reads in 2000, Arthur Klebanoff started RosettaBooks in 2002, and Scott Waxman founded Diversion Books in 2010. The former two are dedicated more to reprint of previously published books, whereas Waxman’s venture issues originals. “Through Diversion, Waxman stated in Friedman’s round-table, “we can publish some of these books and therefore offer authors a new alternative. Instead of relying entirely on the big houses, authors now have a real opportunity to pursue a different road, one which gives them more control over their book as well.”

As the publishing industry rebuilds itself from the ground up, every denizen of the ecosystem must not just adapt but reconstitute.  Agents are no exception, and it is entirely possible that a decade from now their role will have only the faintest resemblance to that of hustling for commissions today.

Richard Curtis

It seems like a century since I wrote that. In fact, it was a century ago. I wrote it in the twentieth. Is it still true in the twenty-first?

Literary agents stand at a crossroads, and the vista in every direction is cloudy. On the one hand, publishers – the buyers – are fewer and more selective. On the other, many authors – the sellers -  expect more attention and service from their agents to fill the vacuum left by a shrinking publishing industry.  And some authors are choosing options that don’t include agents at all. Boyle’s Law seems to be at work here: the more pressure exerted on publishers and authors by a compressing marketplace, the more heat they generate, and a lot of it is focused on their agents.

Like brokers in every other field of endeavor, agents are supposed to add value to the relationship between buyer and seller in order to justify their commissions. I could write volumes about all the things agents do and have done to make publishing a better place for both parties (actually, I have written volumes***). Does that matter as much as it used to?

Here’s the problem in a nutshell: agents are intermediaries in a rapidly disintermediating world. The pitiless march of digitization that has eroded, and in some cases destroyed, so many other go-betweens now menaces the agency profession like a siege army outside bastions that have stood for a century. As in so many other fields where digital technology is squeezing middlemen out of the middle, agents have become vulnerable.

Is there any reason to believe that agents are exempt from the cruel laws of the marketplace? Given my vested interest in the answer, it’s hard to render an opinion that sounds like anything other than wishful thinking. But if one can try to be objective, one does have to wonder why book agents in the age of Smashwords and Kindle are more fit to survive than travel agents in the age of Orbitz and Expedia. Tomorrow, in the second part of this article, we’ll look at ways that agents are adapting and reinventing themselves to meet these challenges.

What are the factors forcing middlemen and women out of the middle?

Buyers. The pool of viable buyers – big, established trade publishers with nationwide bookstore distribution – is shrinking like a lake in a drought, and so is their wealth. It was only a few decades ago that they numbered one thousand or so. Today it is closer to a few dozen.

Though the top six or eight are well heeled enough to pay giant advances for blockbuster novels and celebrity tell-alls, they have almost nothing to spare for the platformless newcomers and midlist authors who have traditionally been a staple of the publishing industry and a nursery for talent. If an agent doesn’t represent household-name writers and has no place to go with garden variety ones, the options are nasty, brutish, and poor. The collapse of Borders and the struggles of Barnes & Noble have eroded the marketplace even further, reducing the pool of markets and money to spread around.

Sellers. Given this contraction, the author community has understandably become disenchanted with the allure of traditional publishing. Even big-name authors – indeed, some shockingly big-name authors -  are disgusted and have begun exploring self-publication options, options that are seldom commissionable by their agents. And they are finding a host of compelling options that only serve to accelerate the centrifugal disintegration of what, not very long ago, was a dynamic, agentcentric industry.

A decade ago authors dissatisfied with their agents sought new representation, and there is still intense competition for seats at the grand table. But there are fewer of them, and authors who can’t find one have begun seeking alternate ways to get their books discovered, published, distributed and publicized. Unfortunately, their agents don’t always have the technical skill set necessary to be of assistance, and reports of fabulously successful self-published newcomers only add to the sense of futility with the establishment.

As a result, many agents are struggling to find significant ways to add value to the work of their clients in the emerging digital paradigm, where self-publication has become a lure that for many writers is intriguing and, for some, irresistible. Editing, formatting and uploading books, managing content and promoting oneself have become so easy that authors are not as reliant on traditional agent services as they once were. New authors who once desperately pursued agents as the key to a professional writing career now put their books directly into Kindle, Sony, iPad and Nook, even issue them as print on demand paperbacks, and manage their own marketing and publicity.

The dream of being discovered by a major house or attracting an agent is so remote for new authors that many no longer bother. Even elite, privileged, and affluent authors have begun to sell their work directly to their fans, leaving their agents bewildered, helpless and – commissionless. Where are tomorrow’s agents going to find clients?

In the second installment of this article we’ll see what agents are doing, or trying to do, to maintain their relevance in this rapidly evolving paradigm called Digital Publishing.

Richard Curtis

*** See What I Have Done for You Lately