If professionalism may be defined as mastery of the tools of one’s trade, I have to wonder how many writers earning money from their work can truly call themselves professionals. After all, one of the most important tools of their trade is the publishing contract. Yet, of the thousands of writers I have known over the course of my career as agent, author, and lecturer, only a small percentage have had more than a superficial understanding of contracts and the negotiating skills associated with them. It is a sad irony that after struggling so hard for so long and at last achieving something worthy, a writer will then proceed to depreciate its value with a stroke of his pen on a publishing agreement.
I’m not sure I comprehend this reluctance of writers to understand and negotiate contracts. I know it’s not necessarily a lack of legal sophistication. An editor friend of mine tells about the late Justice Abe Fortas of the United States Supreme Court, whom he signed up to write a book. The editor mailed off the firm’s standard publishing contract, wondering what would be left of the document after so distinguished a jurist finished dismembering it. To the editor’s astonishment it came back by return mail, signed without so much as one alteration. Appended to the contract was a note. “I haven’t looked at it,” scribbled Fortas, “but I’m sure it’s okay.” Perhaps writers are apprehensive of contracts because they have something to do with being businesslike, a quality that some artists feel is not in keeping with the creative spirit. Many writers, particularly new ones, tend not to think of their work as having commercial or legal value. Not long ago an agent I know phoned a client to report he’d sold her first book. As expected, the author went slightly berserk with joy and hung up to share the news with her family. Fifteen minutes later she phoned back sheepishly. “Uh, I forgot to ask. How much are they going to pay?” Authors, it seems, are so grateful somebody wants to publish them that matters of money and contract become secondary.
The moment a writer receives his first offer for something he’s written, however, he crosses the threshold into the business world. By endorsing that first check, he makes a legal commitment every bit as binding as a lease or a car-purchase agreement. Although lawyers and literary agents exist to interpret contracts for authors and conduct their business, rare is the writer who has not woken up one day to the realization that his appointed representative has not represented his interests as completely, as competently, as responsibly as was expected. Indeed, not a few wake up to realize their appointed representative has botched things up terribly. And that’s just writers who do engage agents or lawyers; there are countless numbers who don’t, and botch it without professional help.
Consonant with the creative spirit or not, then, it is every writer’s responsibility to be businesslike, to feel comfortable with a contract, to understand what his agent or lawyer is trying to do for him, to understand what a publisher is trying to get him to do. There are some wonderful works available on how to write, and this book doesn’t pretend to compete with them. It assumes you’re already writing or have written something and want to sell it, or have received an offer for it and want to negotiate a good contract. Despite its title, it is aimed as much at writers who have agents as at those who do not. Because agents are mortal and subject to errors, sometimes egregious and even fatal ones, no author is relieved from responsibility for his contractual commitments merely because he has an agent who is supposed to be an expert in such affairs. Quite the contrary, whether your agent is an expert or not, he has no liability whatever for legal and other problems arising out of documents he hands you to sign. My purpose for represented writers, then, is to help them understand and oversee their agent’s work, to become informed clients.
I rest my authority on two qualifications. First, I have been a literary agent for over forty years. Second, as author of more than fifty books I have committed just about every contractual blunder on record. Luckily, I am, I assure you, much better at representing others than I am at representing myself. But because of these experiences I feel compelled to state this book’s bias candidly: I’m by no means certain a writer can be his own agent. The famous proverb of the legal profession, that the lawyer who represents himself has a fool for a client, may be apt for the writing profession as well. As my own client I tend to be impatient, to have no objectivity about my work, and to be so easily flatteered that someone wants to publish me as to accept terms I would sternly reject if they were offered for one of my authors’ properttttties. So this book is definitely a case of Do What I Say, Not What I Do.
Another bias of this book is that it’s aimed at book, not magazine, writers. Most of the marketing, negotiation, and contractual strategies discussed in these pages can be utilized by magazine writers, however.
Because short stories, articles, essays, and poetry sales are so low-paying, most agents will not handle such material except as a courtesy to certain clients or in cases where the material clearly has the potential to sell to a high-paying market. My agency is no exception. But I’m not sure there’s much an agent can do for magazine writers that they can’t do for themselves. Magazine editors are much more responsive to unrepresented authors than book editors are, so it’s easier for magazine writers to get a foot in the door. The price ranges of magazines are fairly inflexible, so there’s not that much negotiating leeway for an agent. Magazine purchase agreements are less complicated than book contracts. All in all, magazine writers can survive without highly developed business skills; I don’t think book writers can. Still, all writing paths seem to lead to books; at least I’ve never met a magazine writer who didn’t have a book in him. Sooner or later, then, every writer will have to deal with the problems discussed here.
I wish to apologize to all women readers of this book for my use of the masculine pronoun when referring to authors and editors. Writing this work has certainly raised my consciousness about the way our language discriminates against women. At the same time I found that such usages as “he/she” didn’t sit comfortably with me, and I was twisting sentences into cruel configurations by employing “they” or “you” or “one” all the time. So I’ve fallen back on the publishing tradition wherein, on all contracts, the masculine pronoun signifies writers of either sex.
Finally, a number of statements made in this book are critical of publishers. For these I will not apologize. But I would like to thank my publishers for tolerantly permitting me the freedom to make them. The opinions expressed herein are, I’m fairly certain, not necessarily those of the sponsor.
Copyright © 1983, 1984, 1996, 2003 by Richard Curtis. Reprinted by permission of Houghton Mifflin Company.