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.  

Could I Be Liable for Libel in Fiction?

First, by way of reassurance, you should keep in mind that libel in fiction is rare.  Considering the vast number of novels, short stories, and satirical works published every year, successful libel suits arising out of fiction are few and far between.

In theory, the circumstances that can give rise to a claim are fairly obvious:  a character in a work of fiction is interpreted by readers to be a depiction of an actual living person; the character is depicted as behaving in an unsavory manner; and the living person contends that he/she never engaged in such behavior.  Plaintiffs have ranged from clearly named public persons to obscure (and even considerably disguised) acquaintances of the authors. This interesting ongoing case involving an episode of Law and Order is fairly typical; according to The Wall Street Journal it is the first libel in fiction case to survive summary judgment in New York in nearly 25 years.

You do not libel someone simply by depicting him or her in fictional circumstances.  Libel requires a false and defamatory statement of fact "of and concerning" an identifiable living person (or business entity).  If real people are depicted in your work only as engaging in acts they actually engaged in, there is no "falsity."  If real people are depicted in your work only as engaging in acts that are not at all untoward, there is no reasonable claim for that your work is "defamatory."  (Of course, your model's view of whether he or she has been held up to shame and ridicule may differ markedly from yours.)  Finally, if readers would not understand the statements you are making about your fictional character to be statements about a real person, then the statements are not "of and concerning" that person.

Rodney Smolla, the author of one of the two leading treatises on defamation, has neatly summarized the spectrum of risk:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

The courts have struggled with the question of when statements in a fictional work should be deemed "of and concerning" a real person with similar attributes.  In the most plaintiff-friendly decisions, the courts have said that a jury need only determine whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Here is one such case; note, however, the court's extensive itemization of similarities between the plaintiff and the character in order to justify its decision.  Other cases, such as Welch v. Penguin Books, have been far more protective of writers, holding that "identification alone" is not a sufficient basis for imposing liability, and that the jury must instead be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all."

How do you avoid defaming someone with your works of fiction?

1.  Don't use your published work to settle scores with others.  Reserve your vengeance for your diary or private notebooks.  If you suspect your readers will recognize your fictional villains as the real-life individuals whom you used as models, then more fiction and less faction may be in order before you publish.

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.

Sidebar:  The 1979 California case of Bindrim v. Mitchell illustrates the challenges of disguising a character while retaining the essential elements of the story you want to tell.  Gwen Davis Mitchell, the author of the novel Touching, had attended a series of real-life therapy sessions conducted by Dr. Paul Bindrim.  As a condition of participating, she had signed an agreement in which she agreed not to write about the sessions.  When Mitchell later wrote her novel, she included a character, Simon Herford, who conducted marathon nude therapy sessions and occasionally used less-than-chivalrous four-letter words.  Actually pretty mild stuff by 2011 standards.  The fictional Herford not only had a different name from Dr. Bindrim, but Mitchell also gave him a different physical appearance and a different professional background.  Nevertheless, the court found that Herford was recognizable as Bindrim to at least some of his colleagues, and therefore, to the extent that readers understood the novel to be making statements about Bindrim that he could prove to be false and defamatory, Bindrim could recover from Mitchell for libel. Here is an amused and amusing People magazine account of the dispute.  Ultimately, Dr. Bindrim obtained a substantial judgment against the novelist and publisher, which was upheld on appeal.  (Full disclosure: my firm was involved on behalf of the defendants at the appeal stage.)  The existence of the contract was an unusual twist and certainly complicated the defense, but the case stands as a warning about the considerable care that must be taken to distance fictional characters, who are depicted as misbehaving, from real individuals who may have inspired those characters.

3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

4. Disclaimers can't hurt.  You will frequently see in the front matter of novels a statement such as:  "This is a work of fiction.  Names, characters, places, and incidents are the products of the author's imagination or are used fictitiously.  Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental."  A disclaimer won't really protect you if there is evidence that the similarities are not "entirely coincidental."  Nevertheless, a disclaimer gives a lawyer defending you something specific to point to in order to underscore to the court that "this work is presented to the world as 'fiction' not as a factual account."  And, remember, under the law, a reasonable reader would have to understand a statement about a person as a "false and defamatory" statement of fact for it to be libelous.

5.  Keep in mind that (with rare exceptions I won't venture into here) you can't libel the dead.  Basing a character on the dearly or undearly departed is unlikely to give rise to a problem.  (But keep in mind how your dead character interacts with other characters, who may have counterparts among still-living real individuals.  For example, consider a plot line where a character -- based on a real though dead person -- is depicted as a murderer, and his fictional brother is depicted as failing to disclose the crime to the authorities; a real-life brother of the real-life, identifiable model for the killer character might be heard to complain.)

6.  In some instances, the fact that the fiction is so far-fetched has worked to the author's benefit, giving rise to  a successful argument that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even though a reader might conceivably associate the character with a living person.  See the kinky case of Pring v. Penthouse.

7.  Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts.

8.  If you have doubts or concerns about the way you have modeled a character after a living person, raise them with your editor or the publisher's in-house attorney before the work goes to press.  With a little rewriting, libel in fiction issues are almost always resolvable without significant detriment to a story line. You can still write a biting roman a clef even in these litigious times.

On my bookshelf of books on law for writers, The Writer's Legal Guide and The Rights of Authors, Artists, and Other Creative People have the best discussions of libel in fiction.  Online, Julie Hilden has a good post focusing on a disturbing Texas case.  And here are posts from two other practicing attorneys with useful background on the issue, one by David Hudson and an older one by Alan Kaufman.

Again, don't over-sweat this.  Libel in fiction is an infrequent problem and one that can be readily avoided with some advance thought about how you are using real-life models for your fictional characters.  Far more challenging and more common is the problem of reducing the risks of a defamation action arising from a tell-all memoir -- a subject that I will return to in a later post.

What Are the Best Books on Writers and the Law?

Impulsively, I recently bought seven books about writers and the law -- all aimed at writers, not lawyers:

Author Law A-Z, by Sallie Randolph and others;
The Writer's Guide to Copyright, Contract, and Law, by Helen Shay;
The Copyright Permission and Libel Handbook, by Lloyd Jassin and Steven Schechter;
The Writer's Legal Guide, by Tad Crawford and Kay Murray;
Negotiating a Book Contract, by Mark Levine;
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans; and
The Writer's Legal Companion, by Brad Bunnin and Peter Beren.

Every writer could benefit from reading at least one book on writing and the law.  (In fact, they ought to make a short course on law for writers a prerequisite for graduating from an MFA program; it would give students a real-world grounding in many practical issues they will be facing as professional writers.)  But no writer really needs more than one or two books on the subject.  I don't yet know which of these seven books qualifies as "best" (from my point of view); but I already know that each has its strengths.  In future posts, I will offer some thoughts on each.

I have long owned a copy of of an eighth book, Kenneth Norwick's highly accessible The Rights of Authors and Artists, published by the American Civil Liberties Union.  I have previously praised Norwick's book and will use it as a baseline for comparison to the other seven.  Virtually the only shortcoming of Norwick's book is that the most recent printing is now 18 years old; the ACLU should commission him to update it.

"Modernism and Copyright" edited by Paul K. Saint-Amour

Modernism and Copyright, an outstanding collection of essays published by Oxford University Press, is shipping now and should soon be available from online booksellers and selected brick and mortar stores.  The table of contents is reproduced here.  The editor, Paul K. Saint-Amour, is an Associate Professor of English at the University of Pennsylvania and the author of a well-regarded previous volume on copyright and literature, The Copywrights: Intellectual Property and the Literary Imagination.

Many of the essays in Copyright and Modernism  touch on the adverse effect that prolonging the term of copyright has had on literary scholarship, particularly scholarship exploring the works of modernist authors, many of which would have passed into the public domain (or would soon be doing so) but for the enactment in 1998 of the Sonny Bono Copyright Term Extension Act.

I particularly recommend an essay by Robert Spoo, "Ezra Pound, Legislator: Perpetual Copyright and Unfair Competition with the Dead."  Spoo is an interesting hybrid -- a professor of law, a practicing attorney, and a former English literature professor, who was, at one time, the editor of the James Joyce Quarterly.  Notably, Spoo was also one of the lawyers who represented Carol Loeb Shloss in her copyright battle with the James Joyce Estate over her biography of Joyce's daughter, Lucia. Shloss's account of her fascinating lawsuit, "Privacy and the Misuse of Copyright," also appears in the volume.

Full disclosure:  I contributed an essay on, among other things, the J.D. Salinger, L. Ron Hubbard, and Richard Wright copyright cases, which involved questions of the "fair use" of unpublished letters in biographies.