Voices on Writing:
Lynn Chu, Agent Unplugged
by Barbara DeMarco-Barrett

Lynn Chu is a principal at Writers' Representatives LLC in New York City. She graduated from the College of University of Chicago with honors in geography in 1977 and from its law school in 1982. Since 1985, Lynn and her husband and partner, Glen Hartley, have run the Writers' Reps literary agency. Prior to this, Lynn briefly practiced corporate, securities, executive compensation, and corporate law at a New York law firm. She has published articles in the Wall Street Journal, The New York Times, Atlantic Monthly, and Harper's Magazine.

 

Barbara DeMarco-Barrett: You're a writer, a lawyer, and agent. Talk about your path to agenting.

Lynn Chu: I'm a life-long bookworm. College and law school reinforced that tendency, which my husband and partner, Glen Hartley, also a University of Chicago alum, and literatus par excellence, shares. Both of us always have been interested in the business of publishing as well as in many kinds of books.

BDB: What do you especially like to represent?

LC: Works of literary merit, of all kinds, and narrative investigative journalism. And, if it's of high caliber, or has a market, some scholarship.

BDB: Does this have anything to do with the market, or do you represent only what you like, or love?

LC: We pursue both what we like and what we think will sell. Nearly everyone in the book business prefers quality to trash—and good trash to bad trash—but publishing and agenting are, naturally, businesses first. One always looks for the fresh, interesting, the well done, the virtuous, or the marketable.

BDB: You're known for being a ferocious advocate for writers. Where does this ferocity come from?

LC: Knowledge of the law, of my fiduciary duties as an agent, of the economic structure of intellectual property, and a preference for just results. Over time, you see a lot of exploitation and fraud. It's not pretty.

I've always been interested in more fairness for authors and in rationalizing a contract to suit the individual situation. Publishers are hidebound and dislike change. They have legitimate interests in regularizing their processes, but right now they are using a call to "tradition" to advance themselves at authors' expense. They are trying to impose print economics onto digital publications. This is not a good bet on their part. Authors will eventually wise up to this game, and probably move on to new models of publishing and self-promotion. Publishing will be forced to evolve. You already see it starting to happen in HarperStudio, a 50/50 net publisher.

BDB: Every writer fears that if she pushes too hard, the publisher will change her mind, and walk away. Do agents have this fear, too?

LC: Sure, agents do. Agents don't want to double their workload by having to resell, or lose a bird-in-hand commission. They much prefer to make the sale and move on.

BDB: How does this fear affect an agent's negotiations for a client? Have you ever had a publisher walk away, or heard of it happening?

LC: Authors' fears and anxieties tend to be excessive. They need to buck up, especially now. Opportunities for them are only expanding. Publishers make an offer and write the contracts—so why should they walk? Walking is an author's prerogative. An author is free to ask for changes in a contract. A publisher will either accommodate that, or not. If not, then an author can buckle and sign if he or she wants to. Or not. It's their call.

Publishers are well aware of authors' insecurities and how to exploit them. Delay, nonresponse, and stonewalling are their usual modes of inflicting duress on authors.

Publisher brands will probably matter much less in the future. Authors need to look around and notice how the world is changing.

BDB: What future do you foresee for the writer-agent relationship as we turn to so-called books that may be published only digitally, perhaps with a small print run and perhaps not?

LC: In the digital future, a skilled licensor will be authors' most valuable ally. An agent is an author's business partner. Agents work on a fixed, fairly low commission. Agents have great accountability. They pay authors on receipt and give the author final say on everything. Today, publishers want to act as licensors—but to justify a 75 percent or more commission, they want to call it publishing. And they want to eliminate the whole fiduciary duty part. Do you prefer 15 percent off the top from a fiduciary who pays you immediately and licenses your work solely in your interest (usually better than the back room of a publisher can manage), or 75 percent (and more) off the top with no control? No control over a product that is in flux is a very dangerous position to be in. Publishers have been trying to rewrite contracts to say they have a "right" to remove all "costs" off the top with no notice or approval—yet keep the very same 75 percent share of the net. This amounts to stealing from you, and it is a breach of the fiduciary duty of publishers to their authors.

Self-publishing may rise in the future, with authors using skilled licensors rather than relying on publishers to license. Licensing isn't publishers' forte, and licensing in bulk does not improve either its quality or its revenues; more often, it debases them. Someday, marquee authors might notice that their contribution to the value of a publishing venture is a lot greater than that of the publisher. That implies something north of 50/50 net.

BDB: In terms of contract trends, how aggressive should your agent be in an e-book contract?

LC: It's not about aggression, but about knowledge, and timing. Agents now should license more on limited terms, get approvals, and aim for 75 percent or more on net on electronic—or more, especially, I might add, in small deals, which is to say, when the value of the publisher's print launch services, or its advance, is fairly small. Or start retaining more rights. Deals are variable. It is a mistake to think in terms of formbooks or rules. Terms interrelate, and all terms are relative to a situation. (This, by the way, is why the whole idea of a one-size-fits-all contract with Google is so stupendously misguided.)

BDB: What other negotiations and rights should authors be cognizant of when we sign a publishing contract? For example, I assume we have the right to examine certain statements. The publisher has more fiduciary duties to writers under common law than we realize, but most of us don't know what they are!

LC: Publishers are now trying to hide the ball about their e-vendor contracts. They hope to mask the licensing nature of all electronic media. Authors should be getting hold of those licenses, reading them, and demanding to approve each new electronic edition or format in advance. Don't let the publisher tell you that you have no right to see them. You do. All technological and business details of all new products need to be scrutinized. Raise issues. Do you get to pick what portion of your work is displayed to the public? You should. Does the publication allow text search? Did you even grant those rights? Did your publishing contract say you did? Probably not. That's an issue. The licensee should be paying the publisher more for any feature like digital search; this is part of authors' reserved rights, over which only authors have control and a right to profit. To set any price, you have to know what it is, and that only comes with pointed questions. En masse decision-making is dumb decision-making.

It is important to remember that, in all these transactions, publishers act as authors' agents. They are not entitled to collude with a licensee to the author's disadvantage.

The growth of technology ought to be empowering authors. In fact, publishers now need authors more than authors need them. GBS (Google Book Settlement—see ASJA president Salley Shannon's discussion - ed.) is an audacious effort to use the law as a weapon to steal back authors' growing power. Authors need to learn to walk away from bad deals and scope out new opportunities, maybe by self-publishing. It is cheap and easy to publish now, and you are likely to make more by handling your own licensing. A publisher provides value only in its launch. They're vastly overpaid to license, under conventional book contract forms.

Authors need to control each new publication or licensed publication with approvals over those new formats and editions. Publishers also owe authors a duty to be fair on royalties on those editions. Electronic editions once promised to yield at least hardcover royalty per copy sold of around $4 or so. Everything is negotiable, but right now, authors accept far less than that, depending on how people define "net," and they really shouldn't. Authors and their agents also ought to ask to see copies of publishers' e-vendor licenses to approve those off-the-tops, and make sure their terms are fair from the author's perspective.

BDB: What mistaken assumptions do writers and agents, respectively, have about contracts?

LC: The Number One mistaken assumption is to apply the economics of print to electronic. Authors also need to realize that agents mostly are just salespeople. Most have neither the expertise nor a duty to flyspeck the contract. It's your responsibility to educate yourself, stick up for yourself, and negotiate. Electronic media are new and no "industry custom" governs it. If you aren't getting clarity, honest treatment, and a square deal, walk. Control your rights. You have more opportunities to publish now than ever. These opportunities will only expand in the future. But if you don't own and control your rights, then it won't be you who profits.

BDB: And now, the Google Settlement. To me, it seems to be a raw deal for writers, but the Authors Guild keeps up a steady chant about the Google settlement being good for writers, that we need this new Book Rights Registry. What's this all about?

LC: This is a business enterprise for the Authors Guild. The Authors Guild is delighted by the idea of a permanent fiefdom in partnership with Google. It sees no issue with intruding itself into all authors' business affairs, commandeering their money, and taking a cut, forever, with no consent. Somebody, they think, just has to sit down and rewrite every book contract to the satisfaction of the publishing cartel; somebody just has to serve as Google's contracts and claims department and charge authors for it. For its part, Google is desperate to have this "Registry" with its cover of faux independence. The Registry effectively exempts Google from all threat of suit based on laws such as copyright, consumer fraud, contract, property, tort, and publishing law, as to nearly everything Google might do with all books again. It blacks out all market pressure and people power demanding fairness. Competition is outlawed. In economic reality, the Registry has no function but to serve Google. This is a vision of aggregator-only total control, purged of all pesky, annoying individuals. The aggregators get to plunder the loot first, then toss their leftovers to preferred ("registered") individuals.

BDB: You're a writer and a member of the AG yourself. What are the foremost dangers the Google settlement holds for the individual writer?

LC: The forced arbitration of the Registry. If you give up your right to threaten to sue a publisher for breach, then you really no longer have any rights. The Google document changes all the common law rules to bind you to a Registry reading of the literal words of the book contract. You have much more power as an author if you walk and say "sue me," because most publishers won't, particularly not if their case is weak, as most cases will be under the real law, as opposed to the rules set out in this complicated private regime.

BDB: Any last comments, or words of advice for our members?

LC: As a p.s., contributors to anthologies were ripped off under little-noticed Attachment C of the original settlement agreement dealing with "inserts," under which anthologists take 80 percent, with 20 percent to be split among all contributors—a senseless and unheard of formula. This reflects the domination of publishers over authors that is evident throughout the scrapped GBS. Publishers tend to control anthologies. Those publishers will now register and collect all digital revenues from use of contributor material. Most permissions granted only the right to produce limited print runs, with no digital. But since anthology publishers aren't responsible for Google's scanning, and Google is immune, no one will be the wiser if publishers or anthologists register and collect from Google on the anthologies. The 80/20 allocation makes it unlikely that contributors will bother to register. No one keeps permissions records. The work involved for them to do this is large, and all a contributor would ever be able to get for his effort would be a puny split of 20 percent pro rata among all contributors—not 100% of their material's online uses. Also, online, anthologies compete head to head with original works. Computers once were thought to permit easy, direct payment and automated accounting. This sends everyone back to the dark ages, mandating that contributors shall be forever barred from all of computerization's benefits and, instead, disadvantaged more than ever before. Sadly, the GBS as a whole is all in this vein.

Barbara DeMarco-Barrett is editor of The ASJA Monthly and author of the award-winning best-seller, Pen on Fire (Harcourt, 2004). She hosts Writers on Writing on KUCI-FM, which you can now access on your iPhone and that podcasts at http://penonfire.blogspot.com