The Agent from Hell and the Top Six Scams Targeting Writers

Pity the poor writers who chose the Deering Literary Agency of Nicholasville, Kentucky, to represent them. According to The Seattle Times, the founder of the agency, Dorothy Deering, was:

an out-of-work bookkeeper saddled with a felony embezzlement conviction. By 1987, she had written a science-fiction novel and been swindled by three "fee agents" who promised to find her a publisher. Rather than react bitterly, though, she was inspired to start a new career: Taking advantage of aspiring writers just like her. 

Deering persuaded her clients to pay her thousands of dollars to edit, print, publish, and promote their books.  Most ended up, in the words of The Washington Post, with "no book, no life savings, no nothing." 

Thirteen years after she launched her agency, Deering achieved the distinction of becoming the first U.S. literary agent to be convicted of mail fraud.  She was sentenced to 46 months in prison, and she and her confederates were ordered to repay more than $2 million in restitution to the hundreds of authors they had bilked.

Criminal law professor and ex-FBI agent, James Fisher, recounted the tale of Deering's literary grifterism in Ten Percent of Nothing: The Case of the Literary Agent from Hell.  The title refers to the ten percent royalties that the authors were promised on sales of theirs books. According to The Christian Scientist Monitor, only about six of the 200 books that the Deering Agency contracted to publish ever made it into print.  

But Deering and her accomplices are by no means the only practitioners of this "genteel racket."  Fisher estimated that, in1999, more than 10,000 gullible writers forked over more than $50 million to dishonest literary agents.  The Post called it "one of the dark, ugly secrets of the American publishing industry."

The Top Six Literary Scams

Many writers would give their eye teeth to be published, and there are plenty of scammers ready to take them. Here are six classic literary scams.

Scam 1:  The pay-to-publish companies that (a) charge vastly excessive fees to print your work, (b) produce a shoddy product or no product at all, and/or (c) make misleading claims about their capabilities to market your book, distribute it to bookstores, and have it reviewed. Particularly in these days of do-it-yourself ebooks, the economics and advisability self-publishing are a complex subject.  A very few authors make decent money by publishing their own books, but the vast majority never come close to earning back their investment.  Most authors are probably well-advised to focus their efforts on honing their craft, finding an honorable agent, and moving heaven and earth to place their work with a conventional publisher that reliably pays royalties and (one hopes) an advance.  If you can't find a conventional publisher and crave an audience for your work, the Internet can often provide a community of readers virtually for free.  (But see this earlier post on the implications of Internet publication.) Suffice it to say that if you're planning to pay to have your work published, do a lot of comparison shopping and carefully investigate the track records of companies you are considering. And if you're paying to publish, you should retain all rights (except the strictly limited non-exclusive right to print copies pursuant to your specific authorization).

Scam 2:  Agents Who Charge Up-Front Fees.  The  fees are variously styled as "reading fees," "representation fees," "evaluation fees," "retainers," or "marketing fees."  But whatever they are called, they are a bad deal for writers.  Agents should make their money by selling your work, not by charging you to read your work. Indeed, the Code of Ethics of the Association of Authors Representatives ("AAR") expressly states that "literary agents should not charge clients and potential clients for reading and evaluating literary works in the ordinary course of business."  Here is a list of AAR member agents.  And here is an older Neil Gaiman post on literary agents.

Scam 3.  "Book Doctors" Who Are Quacks.  Using ghost writers, book doctors, and freelance editors is, of course, a longstanding tradition in publishing.  (See this quite wonderful profile of Sarah Palin's ghost.)  There is nothing wrong with it, provided your doctor is talented, reliable, reasonably priced, and willing to enter into a written agreement specifying exactly what she will do, when she will do it, how much she will be paid, how the relationship can be terminated if it doesn't work out, and that she has no rights whatsoever in the finished work.  See this earlier post on the importance of collaboration agreements.  Regrettably, many writers saddle themselves with expensive quacks who are unable to produce a work worthy of publication and, worse still, place a cloud over the ownership rights in the manuscript. 

The genius of the Deering Literary Agency was that it managed to combine the perverse elements of items 1 through 3 above.

Scam 4. (Some But Not All) Pay-To-Play Writing Contests.  There are all too many writing contests where the sponsor is simply trying to make a profit on entry fees; there is no honor, no glory in winning (assuming that a winner is even selected).  Here again the line is not entirely bright.  Some quite respectable contests and awards do require modest entry fees.  But you should be very leery of paying to enter a contest that you've never heard of.  And be especially skeptical of contests that require you to assign to the contest operator any publishing rights in your work (much less exclusive publishing rights), particularly if your work is not even the winner.  The Science Fiction & Fantasy Writers of America ("SFWA") offers some good guidelines for assessing contests here.  And here is a post from winningwriters.com on spotting a bad poetry contest.

Scam 5.  Pay-To-Publish Anthologies.  These are similar to profit-making contests.  You submit a poem or short story; you are notified that your work has been selected for inclusion; and you pressured to buy several copies of the (expensive) book in which your piece is presumably going to appear.  The anthology, if it is published at all, crams in hundreds of poems or stories of no consistent distinction.  Here's what the SFWA says about what are, in effect, vanity anthologies.

Scam 6:  The Classic Deadbeat.  But the ultimate scourge of freelancers is the person or company that hires you to write and never pays (or cynically bargains you down to a sum far lower than was originally promised).  There is no way to completely protect yourself against the deadbeat other than demanding full payment up-front -- an arrangement to which few writing clients will ever agree.  Beyond that, key defensive strategies are to get your financial agreement in writing, try to arrange for interim installment payments and kill fees, and provide in your agreement that rights in your work not transferred unless and until you are paid in full.  The American Society of Journalists and Authors "Getting Paid" webpage offers good advice on strategies for dealing with late payers and non-payers.

"Writer Beware"

The SFWA and Mystery Writers of America maintain the excellent Writer Beware webpages (some of which I've linked to above) that promise to "shine a light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls."  Writer Beware offers detailed discussions of unethical agency practices, fly-by-night publishers, contest scams, vanity press abuses, rip-off services for writers, and Twenty-First Century swindles such as overpriced ebook self-publishing and print-on-demand services. The site includes lists of "two thumbs down" agents and publishers.  And there is a Writers Beware Blog that "provides up-to-the-minute information on specific scams and schemes."  The information is accessible to all -- not just to SFWA members.

"Contract Watch"

The American Society of Journalists and Authors offers an excellent "Contract Watch" feature on its website that focuses on scammy (or otherwise unfair) provisions in book, periodical, and online publishing agreements. 

"The Street Smart Writer"

Writer Jenna Glatzer and Maryland-based lawyer Daniel Steven co-authored a feisty book entitled The Street Smart Writer: Self Defense Against Sharks and Scams in the Writing World.  Glatzer and Steven cover in detail many of the subjects briefly touched on in this post: pay-to-publish vanity press deals; deceptive writing contests; pay-to-read agents. They also have chapters on  "After Publication Rip-Offs for Book Authors," "Special Screw-Overs for Screenwriters," "Dealing with Deadbeats," and "What To Do If You've Been Screwed."  This is not a book for the likes of Jonathan Franzen and Jennifer Egan, who already have access to great agents and lawyers.  But if you're a novelist or poet struggling to break into print or or scrappy non-fiction freelancer continually searching for paying markets for your work, this is a practical self-defense guide with a surprisingly upbeat tone.  Well worth a couple of hours of your time.

Other Anti-Scam Resources on the Web

A few years back, Chicago-based thriller writer Joe Konrath wrote this blog entry on writing scams; it remains one of the better short summaries of the subject, and it has attracted scads of interesting comments from readers. His basic message: "don't pay anyone any money for anything"; but, "if you do, do so knowing the risks involved."  Literary agent Barbara Doyen has also posted a series of articles on scams targeting writers.

Jim Fisher, who chronicled the exploits of the Deering Literary Agency in Ten Percent of Nothing maintains a website with a section on publishing scams.  His "20 Tips on How To Assess a Literary Agent" contains especially pragmatic advice.  Here, by the way, is a Bookslut interview with Fisher.

The amusingly named Preditors & Editors site identifies publishers, contests, and agents that have been the subject of writers' complaints.  Of course, writers who complain are not always in the right; there may be another side to some of the stories.  But it is certainly worth checking online evaluation sites for comments when you are dealing with a new and unfamiliar outlet for your work.

Distinguishing the Good, the Bad, and the Ugly in Publishing Agreements

What are some of the best online and ink-on-paper resources regarding publishing agreements?  I'll try to answer that question below, and I will point you to at least one really cool (Columbia University) site.  But, first, here is a bit of general advice on how such resources should be used.

1.  Publishing agreements are often long and complicated legal documents. Some are also filled with traps for the unwary.  These can be treacherous waters, and you need a guide.

2.  Authors often wonder whether, in seeking advice, they should consult a literary agent, a literary property attorney, a book on publishing law, or simply a friend who has signed such an agreement before.  All can be helpful in somewhat different ways.

3.  If you already have an agent, she would be your first and likely best source of information. A good agent knows the ins and outs of the documents (such as standard book publishing agreements) that she deals with on a daily basis and -- crucially -- has an informed view about what a literary work may be worth in the marketplace.  She will also (one hopes) have a web of relationships with acquisition editors, which is, of course, helpful in placing a work and obtaining the best financial terms.  But, for a beginning writer, finding a good agent can sometimes be almost as difficult as finding a publisher.

4.  Agents and lawyers have different areas of expertise.  (Of course, some agents, like the venerable Mort Janklow are lawyers.)  Like an agent, an experienced literary property lawyer can explain your rights and duties under the terms of a publishing agreement (and point out all of the ways in which you are being taken advantage of).  But a literary property lawyer may not have any idea how much money your work could reasonably command, and he may not be much use at all in placing it for you.  On the other hand, a literary property lawyer may be especially helpful in a deal that is somewhat out of the ordinary.  Consequently, an agent may sometimes enlist the services of a literary property attorney, on an "as needed" basis.  Keep in mind that a lawyer who does not regularly do intellectual property work may not be cost-effective.

5.  Sometimes an author is presented with a publishing deal that (1) he has obtained without the assistance of an agent, and (2) he knows to be a fair financial deal.  (An example might be a proposed contract from a university press for an academic work, where there is no reasonable prospect for a large advance or meaningful royalties.)  In that case, it might make sense to consult a lawyer without pulling an agent into the deal.  An agent understandably may want her standard commission in exchange for her advice, even though she has not placed the book; and if there is only, say, a $1,000 advance, she may not be interested in getting involved, even though it is a bird in hand. Of course, if you have access to an agent, it never hurts to ask whether she would be willing to review your contract for a reasonable flat fee.  And, of course, a lawyer's advice will not come cheap either, probably costing you several hundred dollars an hour, depending on where you live.  (That said, reviewing a book contract shouldn't ordinarily take very long.)

6.  Particularly if money is tight, you may want to explore alternative sources of personalized advice on publishing agreements. Members of the Author's Guild can make use of the Guild's contract review service.  The National Writers Union provides a similar service.  Writers who are not members of associations that provide contract advice might be able to obtain help from volunteer lawyers groups, such as those listed in this previous post, albeit they may not be able to assist on a pro bono basis if your income exceeds their set ceilings.

7.  A friend who has experience with publishing agreements can sometimes provide good advice.  He will certainly have your best interests at heart, and (depending on the friend) may have valuable insights.  But a little knowledge is a dangerous thing, and so . . . .

8.  Even if you have an agent or a lawyer or a well-informed friend, you should educate yourself about the legal and business terms of publishing agreements.  There are several online and off-line resources that provide a good place to start.

9.  My current favorite: I recently stumbled across a highly instructive website, maintained by Columbia University, at KeepYourCopyright.org.  It includes this entertaining and instructive feature that gathers together 173 different clauses from contracts with writers and other creative people, and rates each clause as "creator-friendly," "could be worse," "creator-unfriendly," or "incredibly overreaching."  Even more helpfully, the site explains in a paragraph or two the reasons for each rating.  You may find it useful to compare the key clauses posted on this site with the corresponding clauses in any contract you are offered.  It can be illuminating.

10.  The Science Fiction Writers Association has a good introduction to publishing contracts on its website, as well as a few specimen agreements.

11.  There are several practicing lawyers who have posted on their websites useful resource materials concerning publishing agreements.  For example, Lloyd Jassin provides a book contract checklist at his CopyLaw.com website. And here are links to another checklist and an outline of the "nuts and bolts" of publishing contracts -- both from Boston attorney Howard Zaharoff.

12.  Many publishing lawyers own a copy of Perle & Williams on Publishing Law; pertinent portions relating to publishing contracts may now be viewed through Google Books.  Non-lawyers will actually find it quite readable.  Similarly, a useful chapter from Roy Kaufman's Drafting Print and Online Agreements may also be accessed through Google Books. I frequently consult Roy's fine collection of model agreements in my practice.

13.  As to ink-on-paper resources, all of the books discussed in this earlier post have useful things to say about publishing agreements.  If I had to choose just one on this subject, I would select The Writer's Legal Guide, by Tad Crawford and Kay Murray.  Negotiating a Book Contract, by Mark Levine, and The Writer's Legal Companion, by Brad Bunnin and Peter Beren, are also quite good.

14.  So, here is what I would recommend you do before signing your first publishing agreement.  First take a look at the online resources.  Then buy (or borrow) and read the relevant sections of at least one of the law and publishing books.  If you have access to an agent, she should be your first resort for personalized advice.  If you don't have an agent, consider seeking personalized advice from a writers organization or a literary property lawyer before signing any professionally or commercially significant publishing agreement.  Here is a cautionary story about what can happen if you don't.

15. But keep a sense of proportion about it all. What if, for example, you are presented with a proposed agreement for a one-off magazine article that you have only spent a few days writing and that will generate a fee of only a few hundred dollars?  It would be great to have your agent glance through it, if you have one.  It would be great to have your cousin, the intellectual property lawyer, take a look at it for free.  But, realistically, you aren't going to be eager to pay a lawyer to review your contract when your profit margin is slim to the point of anorexia.  That's why it's important for writers to teach themselves what they can about contracts from the myriad of resources available.  

Ur-Text: Writers, Understand What You're Signing Before You Sign It

One of the reasons I became a lawyer was self defense.

As a 24 year-old aspiring writer, transplanted from Akron, Ohio, to New York City, having recently dropped out of an MFA program, I signed a contract with a literary agent to co-author (with a friend of mine) a book of purported humor.  A first book for both of us, it was unexpectedly successful.  Only when a sizable advance came in from the paperback publisher did I pay any attention to a key clause in my contract with the agent.  The contract provided that my co-author and I would receive the revenues from the book, less the agent's commission, and less a "pro rata share of [the agent's] cost of operations."  When I signed the contract, I was clueless about what that clause meant. If I read the same clause today, I still would not know what it meant, but I would surely realize that its ambiguity spelled potential litigation.

When the check from the paperback publisher arrived, the agent first deducted what he regarded as the "pro rata share of [his] cost of operations," then he applied his commission against the remainder, and, finally, he split the remainder two ways between me and my co-author.  He calculated his "pro-rata share" as follows: