The Association of Authors’ Agents (AAA) is a voluntary trade association whose members are all UK-based literary agencies. The AAA provides a forum and collective voice for UK literary agencies, but perhaps most importantly it sets a code of practice for its members. The publishing landscape is continually changing, whether you are an agent, author, publisher, distributor or retailer. Adaption and diversification can be the difference between success and failure when an industry is faced with disruption and disintermediation. Self-publishing is no longer something any player in the industry can simply ignore. Though some might mistakenly claim or believe self-publishing was the key disruptor, the reality is that new technology simply facilitated growth and opportunity in self-publishing.
Four of the five major publishers have an involvement now in self-publishing imprints. Distributors and retailers now facilitate DIY self-publishing platforms. Authors pursue traditional publishing or choose to self-publish. Some authors are both traditionally published and self-published.
So where do literary agents stand amid all this change?
They are right in the middle of it, representing the interests of authors and pitching their books to publishers. Literary agents can’t control what publishers or authors decide to do. When Pearson decided to buy Author Solutions in 2012, I doubt their executives called any major literary agency in New York and asked, ‘Hey guys, we’re about to drop $116 million on this outfit, what you reckon?’ Likewise, when Simon & Schuster decided to partner with Author Solutions and launch its own self-publishing imprint (Archway Publishing), I doubt the phones were ringing off the hook at Curtis Brown! If the truth be known, literary agents have been dealing with self-publishing on a gradually increasing basis for many years. Hugh Howey might be the most well know hybrid author (an author who publishes through traditional routes and also self-publishes), but he wasn’t the first by a long way! If an author phoned his or her agent ten years ago and talked about self-publishing, the conversation might have gone a little differently than today.
November 2004 — Author phones agent
AGENT: “Joe, it’s been a while.”
AUTHOR: “Sorry, Barbara, the book took longer than I thought. But it’s done.”
AGENT: “Great! I’ll get DHL to pick it up tomorrow so I can read the next adventure of Detective Farrow Hawkes. I’ll read it over Thanksgiving weekend.”
AUTHOR: “… Eh …”
AGENT: “Are you there, Joe?”
AUTHOR: “I am. But there’s something I need to tell you …”
AGENT: “Shit! This is bad isn’t it?”
AUTHOR: “Kind of … I dunno.”
AGENT: “It’s me, isn’t it?”
AUTHOR: “Things have changed.”
AGENT: “You don’t love me anymore, do you?”
AUTHOR: “No, it’s just I’ve …”
AGENT: “… fallen in love with another agent?”
AUTHOR: “No! Stop it. It’s not that at all.”
AGENT: “You killed Detective Farrow Hawkes, didn’t you? You bastard!”
AUTHOR: “No one is dead!”
AGENT: “So what is it then?”
AUTHOR: “I’m … I’m …”
AGENT: “Gay! Oh my God, you’re gay, that’s it, isn’t it?”
AUTHOR: “No, no! I’ve just decided to self-publish this book.”
AGENT: “… self … self …”
AUTHOR: “Self-publish. I’m not going with the Newton Publishing offer.”
AGENT: “Self … self-Newton. How do we self-Newton?”
AUTHOR: “There’s no Newton. Just me, you, and the book”
AGENT: “Oh my God! And to think I wanted to have your babies.”
AGENT: “I’m sorry. I don’t know where that came from.”
AUTHOR: “We can still do this together — me, you and the baby … I mean the book!”
AGENT: “I’ve never done this before, Joe”
AUTHOR: “It’s okay, Barbara. We can work this out together.”
AGENT: “Things will be different.”
AUTHOR: “It will. But we remain the same two people no matter what.”
AGENT: “I’ll draw up a new contract.”
AUTHOR: “… and what about Newton?”
AGENT: “I only have eyes for you!”
The AAA Guidelines
This month the Association of Authors’ Agents (AAA) has revised its Good Practice Guidelines for literary agents who have been expressing an increasing need for advice and direction when authors raise the question of self-publishing. The newly revised guidelines are also intended for literary agents who want to diversify into paid services for existing authors still keen to maintain representation.
There are fourteen points in the AAA’s Good Practice Guidelines, covering areas of conduct, remuneration, contracts and direct advice to authors. You can read the full guidelines below and as always your thoughts would be appreciated on what is a tricky area for literary agents in the new world of publishing.
1. Members shall clearly set out in writing their terms of business with regard to all services offered to an author, for example in a client agreement or in an addendum to an existing client agreement. Where appropriate, members shall explain clearly what services they offer, for example what processes they undertake when assisting a client to self-publish.
2. If a member wishes to make a special commission arrangement (ie a higher commission than would be charged for a standard UK or international publishing deal) for any services then the client’s prior written consent must be obtained. Any member considering such arrangement is strongly advised to consult the AAA committee in advance as to the propriety of such an arrangement.
3. In advance of assisting any client with self-publishing, members shall make it clear in writing to the client which costs shall be borne by the agency, the retailer and the client respectively.
4. When a member, in assisting an author to self-publish, agrees to terms with any retailer on the author’s behalf, they should first draw the author’s attention to the terms and conditions and emphasise any clauses of particular interest or relevance, for example any exclusivity requirements or pricing regulations. The member should ensure that the author understands the implications of what they are signing (and that such terms and conditions may be subject to change without notice) and what other options are available and should suggest that the client may wish to take third party advice from the Society of Authors or a lawyer.
5. When a member assists a client to self-publish, they may be required to agree to certain obligations, to make warranties and to grant certain rights to retailers or to distributors which would usually be made or granted by the author or publisher and not by his or her agent. If the member is required to make such agreements on his/her own or on the author’s behalf, he/she shall first of all draw the author’s attention to and explain the details of the proposed agreement and obtain the author’s written permission to make it. If appropriate, the member shall transfer certain of such warranties and obligations (such as that the work is not libellous) to the author by written agreement.
6. When facilitating self-publishing, members should seek ways to add value by advising authors on all aspects of the publishing process including but not limited to editorial matters, briefing a jacket, writing metadata, devising publicity plans, strategizing on price, marketing, formats and advising authors on the full range of retail platforms available to them. Members who are facilitating self-publishing should send authors ‘proofs’ of their works for approval unless otherwise agreed in writing.
7. Members shall make no decisions on matters relating to self-publishing arrangements (for example decisions over the RRP, the possibility of involvement in ebook lending schemes, or subscription deals or print/ebook bundling) without first obtaining the author’s approval. Members should provide the author with sufficient background information that the author is fully informed prior to giving any such approval.
8. Unless instructed otherwise by their clients members shall:-
i. offer clients regular access to sales figures in respect of self-published works being managed by the agency, either directly from the retailer or by copying statements to the author promptly (within 21 days).
ii. provide that monies should be paid to their agency by the retailer as frequently as possible.
iii. ensure that any such monies shall be passed to the author within 21 days of receipt by the agency as set out in the Code of Practice.
9. If a member facilitates publication of an author’s book exclusively through one retailer, the author’s permission to do so must always be sought first and the member shall endeavour to secure the best possible terms with the retailer on the author’s behalf. Members may make provision in their client agreements that once such permission has been granted by the author, the agency may continue to earn commission (as set out in the client agreement) on sales of the book throughout the limited term of such an exclusive irrevocable agreement, even if the author should resign from the agency within such term.
10. If a member requires an author to commit to representation by the agency for a fixed period of time for any reason, which is not considered to be standard practice, the member should recommend that the author take independent advice from a lawyer or from the Society of Authors first before agreeing to such a suggestion.
11. When members assist authors to self-publish, they shall not act in any way which would prevent or deter an author from resigning from their agency on notice. The written terms for such arrangements should include reasonable provision for the author regaining control over all aspects of their self-publishing in the event of the author resigning from the agency, including provision, if the author asks for their work to be ‘un-published’ from a retail platform, for the member to serve notice to that effect without delay subject to any exclusivity period entered into with a third party with the author’s original consent. In the event of an author resigning from the agency the member shall return to the author all documents and property originally given to the member by the author and documents prepared by the member on the instruction of the author although the member is of course free to retain copies of contracts they negotiated.
12. Members may not receive payments from third party companies in recompense for introducing authors to those companies and recommending their services.
13. No member shall engage the services of a client for example as a writer-for-hire or a co-writer or co-owner of Intellectual Property or copyright, or licence rights from a client, without declaring to the client in writing any proprietary or profitable interest stemming from such an arrangement and should suggest that the client may wish to take third party legal advice prior to making any such formal agreement with the agency. If the member should have a profitable interest in a contract beyond normal commission arrangements as set out in the client agreement, then the member may not charge commission on the client’s share of the earnings from such a contract.
14. The AAA’s Code of Practice stipulates that no reading fees should be charged to clients or prospective clients without the client’s prior consent in writing. If any member offers paid editorial services, then the terms of such business should be clearly set out and distinguished from the member’s services as a literary agent. If no guarantee of representation is offered to an author using a member agency’s editorial service or attending a writing course run by a member agency, then this should be made clear to the author at the point at which such services are offered.