The agency:publisher distinction

I’ve been planning this post expanding on what I think of agencies offering self-publishing services to authors. I think a lot of things, unsurprisingly, and I keep thinking more of them as time goes on.

But I do want to say something about the increasing…fetishization? Mantra? that I’m hearing from agencies offering these services, and that goes like this: “We’re not a publisher!” This is held up as if it is somehow the magic distinction between creating an irresponsible conflict of interest and being a-okay.

I think this is kind of a weird thing to focus on. I’m a publisher right now. I can tell I’m a publisher because I get editing services for my books, provide covers, format them, and then distribute them to venues. I really don’t understand why an agency which engages in the same things isn’t effectively functioning as a publisher, too. I can understand that, for purposes of clarity, an agency might not want to be called a publisher–but if it looks like a duck, and quacks like a duck, et cetera et cetera.

But this is a little bit disingenuous on my part. Agents might look and quack like ducks not because they are ducks, but because they are acting on behalf of ducks. And so that’s why I think that tossing around the publisher label is a bit of a red herring. The distinction between “providing appropriate services to agency clients” and “engaging in an unethical conflict of interest” has nothing to do with whether the agency is a publisher, and everything to do with on whose behalf the agency is acting.

Let me give you an example that I think shows the distinction. I sold Harlequin world rights to four books. At this point, I could not say to Harlequin, “Do not sell any more foreign rights. I will not agree to it.” That is because Harlequin decides whether to license foreign rights based on its own considerations, and its own bottom line. It doesn’t have to care about me and what I think at all. I have given up the rights to object to their distribution of the books by contract, and I can’t take that back.

By contrast, if my agent shops the foreign rights for my book to publishers, and gets offers, she will present them to me. I can look at all the offers she gets, and I can say, “No. I’m not taking any of those.” And you know what? She has to suck it up. If I’m really obnoxious about it, she can drop me as a client–that’s perfectly within her rights. But she can’t make me take an offer. That is because my agent isn’t selling my book on her own behalf; she is selling it on my behalf.

By analogy. If an agent is providing publishing services, she is engaging in publisher-like activity. Whether you call her a publisher or not is a question of semantics. Whether she has a conflict of interest, however, is not. If she is not engaging in a conflict of interest, she must be publishing on the author’s behalf, and not on her behalf as a publisher. Consider the following scenarios:

• An agent can provide all the things that are listed on its service list (editing, formatting, cover art). The author decides–after that expenditure of money and time–that she no longer wants to self-publish the work. An agent who is publishing on behalf of the author, rather than on behalf of herself–cannot publish the work.
• An author decides that, to show her solidarity with workers, she will not publish her work on a particular venue because of reports of working conditions, and asks the agent to pull her self-published works from that venue entirely. 70% of the revenue from the self-published work come from that venue. An agent who is publishing on behalf of the author must pull the book from that venue.

If the contract between the author and the agent is such that the above would not happen, it’s probably because the agent is demanding that the author give her distribution rights directly, instead of distributing on behalf of the author. That, to my mind, looks like a conflict of interest. It looks like an agent who is publishing on her own behalf instead of on behalf of the author.

You’ll notice that under my scenario, there is a substantial chance that an author could screw an agent. That has always been the case: authors have always been able to sign with an agent, take editorial advice, and then yank the manuscript pre-submission and sell it through someone else. Authors have always been able to say “no” to insanely good offers that agents work very, very hard to get. The only way that I can imagine that an agent could completely insulate herself from bad behavior on the part of the author in supplying self-publishing services would be to demand exclusive rights to distribute the work–which in effect, would mean that she was publishing the book on her own behalf, instead of on behalf of the author.

(Of course, the way the agent insulates herself from this sort of behavior from reasonable authors is by providing the author with more value than she takes in by way of revenue.)

So in my mind that’s really the salient question. Not, “Is this agency a publisher?” but “Is this agency acting on behalf of the author?”

P.S. You might notice that I have a book out tomorrow! It is called Unclaimed, and I desperately love this book, and the hero of this book. I have been silent because I am desperately working on finishing another book. I promise to say more, and soon!