This is the first of several columns about contracts.
Caveat, disclaimer, LISTEN TO THIS: I am NOT a lawyer! I am not giving you legal advice; you can only get that from a qualified contract attorney! The only thing I am doing is sharing the questions I’ve learned to ask myself — and publishers — when I’m negotiating the kinds of contracts that have let me stay in business. If you want legal representation, hie thee hence to a legal representative and hire him or her to represent you. I am NOT that legal representative! If you’re good with that, read on. If not, reread this paragraph until you are.
Now that that’s out of the way . . .
In the world of erotica writing, most of us work without agents most (if not all) of the time. There are three main reasons for this: money, hassle, and “reputation.”
Pay for writing erotica tends to be lousy on a good day, especially for short stories. Some current calls for stories are only offering $50. I’m not saying that’s an unfair amount, by the way. That may be all the publisher can pay and still make enough money to stay in business. That does not, however, change the fact that $50 only translates into half of an ink jet printer cartridge, a blip in the summer’s AC bill (I live in Southern California), or a month’s worth of anti-flea prescription for my furry office assistants.
An agent taking 10% of that fee wouldn’t recoup the cost of gas for the agent to drive to the post office, much less the price of shipping a hard copy of a manuscript. And now the writer only has $45 for the story. Even if the agent got 100%, that wouldn’t reimburse his/her expenses for the project, much less cover the time spent to adequately pitch the story or negotiate a contract. From a business standpoint, having agent representation for erotic short stories is usually a lose/lose situation for both the writer and the agent. The only time I’ve heard of it working is when the agent and writer are dealing with enough independent projects (like short story collections or novels) to make the combined total worthwhile.
The same need to be cost effective applies to editors and publishers. A contract that’s basically boilerplate for all contributors to an anthology is easier to administer by orders of magnitude than a conglomeration of contracts with varying details. An editor keeping his or her head above water by doing a dozen books at once simply doesn’t have time to negotiate a completely different contract for each contributor. Same with a publisher. And when agents are involved as well, then the editor and publisher are dealing with twice as many people. This makes for even more work, as now contractual and editorial discussions have to be kept separate.
In addition, agents (at least good agents) usually know more about contracts than writers do. Agents are usually more aggressive — that’s their job. They get more for their clients, which means the editors and publishers get less. Unfortunately, to stay in business, some erotica publishers need to have less writer-friendly and more publisher-friendly contracts. Those editors and publishers need to take advantage of writers in order to be able to put out books. I’m not saying that’s right. I’m not saying I agree with it. I’m not saying I sign on for contracts like that often. I’m just saying it’s something we as erotica writers need to consider when We’re weighing whether or not a specific contract offers a fair trade for a particular piece of work.
It’s an agent’s job to get the writer-friendly contract — and the best one possible for that particular writer. When agents are involved in a project, sometimes the time spent dealing with differing and less publisher-friendly contracts simply gets too high a hassle factor for the editor or publisher. They’re not making enough from the story to compensate for the time spent dealing with the contractual issues surrounding it. Some publishers go so far as to say they won’t consider manuscripts submitted by representation. Others just drop the story and may or may not consider work by the writer in the future. If they really want the work, they may even take the loss, though I haven’t found that to be the case often. Barring a specific reason for needing rather than wanting a piece, it’s just not good business to operate at a loss very often.
Depending on the writer’s contract with the agent, if an editor or publisher backs away before a contract is signed (for whatever reason), either the writer or the agent or both then bear the cost of having spent time and money on a project that brought nothing in. Sometimes, the writer and agent also find fewer venues open to them. Sometimes it’s worth it. Sometimes, it’s not. Again, it a personal decision each writer — and agent and editor and publisher — has to make.
Agents also have to keep in mind that in some way, shape, or form, erotica, no matter how literary, is inherently about human sexuality and sexual arousal. Representing writing about sex still has “reputation” issues for agents. (Yes, writers have those issues too, but I’m assuming that since We’re writing erotica we intend to sell, We’ve already made the decision to do so despite the obstacles we have to deal with.) it’s not unusual for even the softest core sex-positive explicit writing to be condemned as “porn” or “anti-family” or “anti-[insert extremist religious or political group]” by those who want to save the world from any but their version of Proper Sex. And that’s for vanilla hetero sex! When we get into BDSM or GLBT or other-than-missionary-for-reproduction married sex, the invective gets even nastier.
Here in the United States, the Justice Department has set up a special task force to actively pursue prosecution of adult content that is by and for only consenting adults. We’re not talking about any of the four big no-no’s here (underage, incest, bestiality, or non-consensuality). They are specifically going after content that was made in accordance with 2257 reporting standards and is being marketed to and purchased by consenting adults.
Literary agents wading into this morass do so at their own risk. Representing writers is a business. While a large advance and high royalties might compensate an agent enough to make dealing with the headaches worthwhile, the agent and his/her agency still have to deal with the potential of being stigmatized and possibly ostracized on future work. Rumors are easy to start, especially by those with agendas, and can do a lot of damage even when based solely on innuendo, misrepresentation, and flat out lies. let’s face it, how many times have we seen headlines accusing someone on the front page, with the retraction coming quietly and buried on page 12, long after the damage is done.
Other-than-erotica writers (with their other-than-erotica higher income) who might be considering hiring an agent can be intimidated or even just plain confused enough by the anti-sex fanatics to shy away, just in case, from associating themselves with a “pornographer’s” agent, regardless of their personal opinions about the merits of erotica. So, no matter how much the agent believes in and may want to represent the author of the sexually explicit writing, dealing with those headaches for a $50 short story is simply not worth it from a business point of view.
Sometimes, an agent who represents a writer working lucratively in other genres will handle the writer’s erotica as well — usually as a courtesy rather than a money-making venture. Similarly, if a writer has built up sufficient quantity of marketable work and a solid enough publishing track record, especially in the form of books, it can be worth an agent’s while to take on the client.
These instances are few and far between, though. The bottom line for most of us who write erotica is that we usually do our own agenting work. We find our own markets, pitch our own stories, and negotiate our own contracts. And when we do it as a business, we have to do it well enough, often enough, to make enough of a profit to stay in business.
See you next month for “Part 2: RTFM — Read The Flipping Manual, or Words to That Effect.”
Kate
July 2006
“The Business End” © 2006 Kate Dominic. All rights reserved.