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.

What Can You Do If Your Co-Author Denies You The Credit You Deserve?

A friend of mine, whom I will call Julia, recently co-wrote an article with one of her supervisors at work.  Julia did the lion's share of the research and writing and was told that she would be given a co-author credit when the article appeared in print.  Indeed, a preliminary version of the article (blessed by her supervisor) specifically listed Julia as co-author.  However, between the time she wrote the article and when it was scheduled to appear, she took a job with a competitor.  Lo and behold, when the article was ultimately published, Julia had suddenly become, in Orwell's phrase, an unperson.  Not only was her name omitted from the by-line, but her co-author gave her no credit at all, not even a fleeting mention in a footnote.  Slimy.  

What could she do?  What should she do?  

This is, of course, a woefully common fact pattern.  Credit is, of course, a key consideration in all types of writing, ranging from million-dollar screenplays to scholarly papers where the writer has no expectation of any payment. Regrettably, as is so often the case, there may be a wide disparity between the legal remedies theoretically available, on the one hand, and the practical cost-effective options, on the other.

As to what Julia could do, here are the principal legal remedies that credit-robbed writers have sometimes successfully pursued:

1.  Copyright.  The most direct attack would ordinarily be for Julia to file a lawsuit seeking a declaratory judgment that she is the joint author and co-owner of the copyright and seeking an accounting of any revenues (to which, as co-owner, she would be presumptively entitled to half).

However, in Julia's case, the article was written within the scope of her duties to the company -- i.e., at the direction of her boss, on company time, using company computers, accessing subscription databases, such as Lexis-Nexis, paid for by the company, for the purpose of demonstrating the company's expertise in the subject area.  For these reasons and others, her contribution to the work probably constitutes "work made for hire," as defined in Section 101 of the Copyright Act, belonging to the company.  Indeed, her supervisor's contribution to the article is also probably "work made for hire."  As a result, the company -- rather than either of them individually -- probably owns the copyright.  As a result, my friend could not seek a declaratory judgment for joint ownership of copyright -- much less pursue a claim for copyright infringement.  Indeed, one co-owner of a copyright owner cannot ordinarily sue the other for infringement.

That said, if you are a freelancer or an independent contractor, you, unlike Julia, might have a basis for a declaratory judgment action.  Here, for example, is the Court of Appeals decision in an epic battle by songwriter Shirley Goodman to obtain a declaratory judgment that she was the joint owner of the copyright in the rock and roll classic, "Let the Good Times Roll".

2. False Designation of Origin Under the Lanham Act. Until 2003, my friend could have brought an action under the federal Lanham Act, which prohibits various forms of unfair competition.  For many years, the federal courts held that a contributor to a creative project could sue, under the Lanham Act, for false designation of origin if she was not given proper credit -- or any credit -- for her work.  For example, in Lamothe v. Atlantic Recording Corporation, two members of the band Ratt sued other members of the band, alleging that they had wrongfully been denied credit as co-writers of the band's songs.  An appeals court held that one of the purposes of the Lanham Act is to ensure that "the producer of a good or service receives appropriate recognition and that the consuming public receives full information about the origin of the good."  The Lanham Act even offered the possibility of triple damages if the defendant's conduct was egregious.  But then came the Supreme Court's decision in Dastar v. Twentieth Century Fox Film Corp.  Dastar is a complicated case, which I won't try to summarize here, but the effect of the decision was to slam the door on the use of the Lanham Act in cases of alleged false attribution of creative credit or omission of credit.

3.  Breach of Contract.  After Dastar, Julia's last best hope for a successful lawsuit would probably be a claim for breach of contract.  Not all contracts have to be in the form of signed writings in order to be enforceable.  In many instances, an oral agreement on authorship credit could be enforceable.  Or a contract might be inferred from the circumstances (e.g., the draft with Julia's name on it).  [Don't get me wrong: it's always better from a legal perspective to have a written, signed contract, and some agreements, like "work made for hire" agreements and copyright assignments must be in writing.]  Basically, Julia's claim would boil down to:  you promised to give me credit, you broke your promise, and I was injured as a result.

There are a few other possible legal theories: unjust enrichment, state deceptive trade practices laws, state artist's rights statutes, etc.  But none is especially likely to be more successful than a straight-out breach of contract claim.

But let's get real.  Julia's boss wasn't paid for the article.  So even if she were to win a breach of contract case, she probably would not receive more than token damages.  It's too late for a court to order that her name be included in the by-line of the printed article.  Contract damages on the theory of injury to her professional reputation would be extremely speculative and, as a result, unavailable.  With no real prospect for recovering interesting money damages, Julia could never get a lawyer to take her case on contingency.  If she has to pay a good IP lawyer his hourly rate, she would soon find herself writing four figure checks.  Maybe one of volunteer lawyers for the arts groups discussed in this post would help, but Julia may actually have too large an income to qualify for their services.

So what should Julia do?

The right strategy in these cases varies wildly depending on the dynamics of the writer's situation.  These steps might make sense for Julia, but they might make no sense for you.

1.  Figure out in advance what your objectives are.  In Julia's case, her principal goal in writing the piece was to obtain professional recognition.  It's too late now to get credit in the printed article.  But it might still be feasible to ask that a correction be published in conjunction with the online version of the article, acknowledging her contribution.  This would enable her to point to the article as her own, include it on her resume, etc., so it is a goal that may be worth pursuing.  Your goal, by contrast, may be reasonable financial compensation, another project to work on, an apology, a email you can point to acknowledging your role as co-author, shaming of your co-author, or sweet revenge -- each of which may require a different strategy.

2.  Gather your evidence. Pull together and preserve all emails, drafts, letters, contracts, invoices, etc. relating to the project.  Review whether there is any objective, documentary evidence of the promise of credit.  Or does it come down to your word against your co-author's?

3.  Decide whether you dare to complain. There are times when it's frankly not worth it to fight over credit -- an undistinguished article in an undistinguished publication, no money at stake, the risk of offending someone whose goodwill you depend upon.   For example, if Julia were still working at her old company, making an issue over the denial of credit might have cost her a raise, a promotion, or even her job.  Those considerations might have had a bearing on whether and how she pursued her grievance. But, because she is no longer working under her co-author, she has little to lose in fighting for the credit she deserves.  I am not suggesting that writers should hesitate to complain when they've been screwed; all I am saying is that it's important to maintain a sense of proportion about any dispute.

4.  Decide whom to complain to. Obviously, the first person you will complain to will be your co-author.  But are you willing and able to complain to others?  Keep in mind that if you announce to a third party that your co-author robbed you of proper credit you may run a risk that your co-author might claim you have libeled him.  (If I only tell you that "you're a plagiarist," it isn't libel; but if I make the same statement to your boss and can't back it up, it could be.  See this interesting article on libel claims arising from plagiarism allegations.) If you are planning on complaining to your co-author's boss or the publication's editor or making your grievance known to the public at large (e.g., on your blog or a gripe site), it may be wise to consult a lawyer first.

5.  Decide how to complain. A face-to-face meeting is often the most effective means of resolving any dispute.  Emails and letters have the virtue of giving you time to collect your thoughts and providing a record of what has been said.  Your  complaint should generally make clear (a) your basis for claiming that you were promised a certain form of credit; (b) the way in which the promise was breached; (c) what you want your co-author to do by way of remedy; and (d) the deadline for implementing the remedy.  These are the classic elements of a lawyer's letter.  If you threaten litigation, it should not be an idle threat.

6.  Decide early on how far you are willing to go.  If litigation is a genuine consideration, see that lawyer sooner rather than later. Consider whether there is anything you would be willing to give in return for the remedy you are seeking.

7.  Keep a record of what you've done to pursue your complaint.  Memorializing your conversations and keeping copies of your emails and letters of complaint may be important both offensively and defensively.

8.  Be persistent but never harass.  

9. Mediation? Is there anyone that both you and your co-author would trust to help facilitate a resolution?
10.  Small claims court?  Julie could pursue a claim for breach of contract in small claims court.  In most jurisdictions, individuals need not appear through a lawyer, although corporations must.  You can't recover much money in small claims court; usually the court's jurisdiction is limited to claims of a few thousand dollars. In Julia's case, however, the problem is that she really doesn't have any financial damages, and, even in small claims court, they don't award you money just for being right.

In some contexts, there may be non-judicial means of seeking redress.  In the film industry, the Writers Guild of America and the Directors Guild of America have rules on properly crediting writers and mechanisms for enforcing them.  Universities often have ethics committees that will review disputes over proper crediting of co-authors.  Some scholarly and professional organizations will also investigate accusations of failure to credit and the related offense of plagiarism.

So what should Julia do?  If she had a claim of co-authorship of a hit Broadway musical or a Michael Jackson song, full-fledged litigation might be worth considering. But, with no pot of gold at the end of the rainbow, the most cost-effective result she could reasonably hope for is to argue, bluster, or cajole her co-authors into giving her credit in the online version of the article.  And an apology.

The next time, she will know to document her agreement on co-author credit by an exchange of emails.  On bigger projects, as discussed in this prior post, she should consider entering into a simple collaboration agreement.

[Hat tip to DJF for editorial suggestions.]

Good Fences: When and Why Co-Writers Should Have Collaboration Agreements

Good fences make good neighbors.  If you and another writer are working together on a substantial work, you should consider entering into a collaboration agreement.

Realistically, you are probably not going to write up an agreement for every small joint project you do.  If you are co-authoring a magazine article that is likely to appear one time and earn you $500 at best, a written agreement with your partner might be overkill.  But if you are embarking on a book-length work or a screenplay that will consume hundreds of hours of your time or that you hope will earn a truly interesting sum of money, it would be a mistake not to put a collaboration agreement in place.  Similarly, if you and a co-writer work together on a series of short works (e.g., a song-writing team, co-authors of a regular column) a collaboration agreement could turn out to be the most important legal document you ever sign -- or don't sign -- relating to your writing.

The lawsuit over the musical Rent illustrates how a collaboration agreement could spare writers and their heirs a lot of headaches and a lot of money spent on legal fees. At age 29 or so, Jonathan Larson (from my town, White Plains, New York) began work on what ultimately turned out to be one of the most highly acclaimed Broadway hits of its era.  Along the way, he enlisted a playwriting professor and dramaturg, Lynn Thomson, to help prepare a version of the show for an off-Broadway production.  Thomson had a written agreement with the non-profit theater that was producing the show, but not with Larson.  Larson died an early death while the show was in dress rehearsals.  The musical was an off-Broadway success and, when it was about to move to Broadway, Thomson approached Larson's estate seeking a percentage of the royalties and a credit.  When negotiations broke down, Thomson sued.  In the end, Thomson lost at trial and the verdict in favor of the Larson estate was affirmed on appeal.  (Read the court of appeals decision here, which explores, among other things, the arcana of when a "joint work" is created under the Copyright Act. I used to work with and now follow on Twitter one of the lawyers who handled the litigation @amygutman.)  Suffice it to say, a written agreement between Larson and Thomson would have been very wise for all concerned.

Every collaboration is different, and no one agreement is suitable for all writing relationships.  At a minimum, you should consider addressing these questions.

1.  Who are the  parties to the agreement?

2.  Who will own the copyright in the resulting work?  Do you intend to be "joint authors," which has a number of default implications regarding who can license the work to others and how the revenues would be shared, unless you reach a different written understanding?  Or do you intend some other kind of relationship?  A work made for hire?  An assignment of the entire copyright interest to one of  you?  Your decision regarding authorship will also need to be reflected in the copyright registration application. (See this prior post on the basic nuts and bolts of copyright protection.)

3.  How will the work be credited?   Whose name will be first?  Will it be styled: "you and  me," "you  with me," "by you as told to me," or will I be a completely invisible ghost?

4.  How will the revenues and expenses be divided?  Will one of you receive the money and pass it through to the other (usually a bad idea for the "other")?  Can each of you incur expenses that will be reimbursed from the revenues?  Who is going to shell out the cash needed for any permissions fees?

5. What responsibilities will each collaborator have on the work and what are the due dates for each contribution?

6.  Who will made the decisions on how to exploit the work:  selecting an agent, choosing a publisher, deciding whether to accept financial terms, etc.?  Will such decisions be made jointly?  What happens if you disagree?

7.  What happens if you can't sell the work or one of you doesn't uphold your end of the bargain because of illness, death, competing obligations, laziness, incompetence?  How will you terminate the relationship?  What rights, if any, will each of you own in the work?

Anticipating what happens if the collaboration fails is every bit as important as (or perhaps more important than) anticipating what happens if the relationship is a roaring success.  One of the model agreements linked to below, takes this approach:

If a Collaborator is unwilling to continue or complete work on the Work, the Collaborators shall enter into a written agreement setting forth the rights of the withdrawing Collaborator, including what authorship credit, compensation and copyright ownership, if any, shall be shared with the withdrawing collaborator. The remaining Collaborator shall have the right to complete the work alone or with others. 

In the event that either Collaborator dies or suffers a disability that will prevent completion of his or her respective portion of the Work, or of a revision thereof or a sequel thereto, the deceased or disabled Collaborator shall receive payments pursuant to Paragraph 3 pro rata to the proportion of his or her work completed or, in the case of a revision or sequel, shall receive payments pursuant to Paragraph 3 after deduction for the cost of revising or creating the sequel with respect to his or her portion of the Work. Each Collaborator hereby agrees that the remaining Collaborator(s) shall have the sole power to license and contract with respect to the Work, and approval of the personal representative, heirs, or conservator of the deceased or disabled Collaborator shall not be required.

Another one of the model agreements takes this agreement-to-agree approach in the context of a collaboration on  a screenplay:

If, prior to the completion of the Work, either Party shall voluntarily withdraw from the collaboration, then the other Party shall have the right to complete the Work alone or in conjunction with another collaborator or collaborators, and in such event the percentage of ownership, as hereinbefore provided in paragraph 1, shall be revised by mutual agreement in writing.

(This clause obviously doesn't address death or other involuntary withdrawal, which could make it impossible to reach a new "mutual agreement.")

The point is to anticipate how best to handle the unwinding of the relationship so that the rights in your work are not consigned to perpetual limbo, if you go your separate ways.

8.  How and where are you going to resolve any disputes that arise between you?  Mediation?  Arbitration?  I'll meet you in court?

A collaboration agreement should be signed and dated by all parties.  Some contractual provisions relating to copyright and other matters much be in a signed writing to be enforceable.

I have often heard writers complain that negotiating a written contract with a collaborator oozes distrust and would threaten to sour the writing relationship.  But if you can't cooperate on crafting a simple agreement, the odds of your having a successful writing marriage are not so hot. And if you can't come to terms before you write your work, imagine the how dysfunctional your relationship will be if your work is wildly successful and you don't have a clear prior understanding about how the money and credit are to be allotted and how decisions about further exploitation of the work are to be made.

There are many examples of collaboration agreements on the web, including here, here, here, here, and here.  Again, every collaboration is different.  In all likelihood, none of these forms will be suitable for your work without modifications.  But these examples may help to get you thinking about what your own collaboration agreement should contain.

You could surely benefit from having a lawyer look at the draft agreement that you and your collaborator draw up. Indeed, the terms of your collaboration agreement could turn out to be more important than the terms of your publishing agreement.  But I realize that, because of the expense, a legal review is not always going to happen.  Generally speaking, memorializing your understanding with your collaborator in writing is better than not doing so -- even if you are unable to have a lawyer take a look at it.

There are useful good articles on the web concerning collaboration agreements, including this one by Lloyd Jassin.  The discussions in The Writer's Legal Guide and especially The Writer's Legal Companion can also assist you.