Ask the Agent: Andy Zack

After reading numerous posts on this site, I've come to realize that there's a shocking amount of misinformation out there, not to mention confusion and misunderstanding. A decade or so ago, I had an account on GEnie, a bulletin board system, where I was the resident agent for the Ask the Agent topic. I'd like to volunteer to do a stint here in the same role. If you have a general question about the publishing business, I will do my best to answer it.

A few ground rules:

1. No pitches or queries.
2. I will not engage in any arguments. If you want to argue about something, I'm sure there are other topics here for that.
3. No matter what I say, your mileage may vary. I do not purport to be the complete know-it-all of publishing.

Now, who am I? My name is Andrew Zack and I am the president of the The Zack Company, Inc., a full-service literary agency located in New York. I have been in this business since September '88 (more like 1982 or so if you count that I first started working in a bookstore while in high school). I started in the foreign rights department at Simon & Schuster, moved to editorial at Warner Books (where I edited and acquired my own titles as an assistant), moved to a small hardcover publisher called Donald I. Fine to do both rights and editorial, and then became an Editor at the Berkley Publishing Group (now part of Penguin Group (USA) Inc.). After my job was eliminated at Berkley, I became a free-lance editor, working on titles for Berkley, Donald I. Fine, Dell and Avon. I became a Consulting Editor for Forge Books (the sister imprint of Tor Books) and acquired and/or edited roughly a dozen titles for them, including several by R.J. Pineiro, the first three COLUMBO mysteries, and Victoria Gotti's first novel there.

I became an agent in 1993, working at the Scovil Chichak Galen Literary Agency. In 1996, I left to start my own firm. You can read more about my firm, my clients, their titles, who publishes them, and the submission guidelines for my firm, at www.zackcompany.com, www.literaryagent.biz, or www.literaryagent.info.

I look forward to your questions and will do the best I can to answer them.

Best wishes,
Andrew Zack

Re: Ask the Agent

Zak,

i don't know you. But anyone willing to spend thier time answering questions and volunteering to help others are welcome in my book.

Don't get discouraged by the doomsayers, they will surely be here.

good luck,

Mike

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Glad to have you aboard Andrew.

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It's good to have an agent like you around to ask questions! Welcome. There are some good people around.

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Welcome to AW.

Shawn

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I'm a first-time novelist who landed a highly respected agent. His idea was that my book should be shopped to the big houses, like Bantan, St. Martins, one at a time. I have no problem with this. I've just been astounded at how long it takes publishing houses to make a decision - several months.

Is that the norm? The novice in me believed that somebody'd read the book over the weekend and push it quickly up the chain of command, or summarily decline the book.

Is there a norm for the time it takes big publishing houses to respond? Do they run books through, not just story editors and the like, but the marketing staff as well?

thanks, Ace

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Hey Andy Zack,

Great to see you hear.

I'm impressed that you would come in and offer your knowledge and wisdom up for public scrutiny. That says a lot about who you are and what kind of agency you run. As you can tell this is a pretty vibrant place. Ideas are challenged, as well as nurtured here. Passions run high, along with a relatively strong level of professionalism. Even here, on the outskirts of the business everyone longs to be in, or rather, strives to remain in, things get pretty emotional.

My first question to you is how do you deal with that... the passions of your artists? Does anyone ever get too emotional, to where you feel you cannot deal, and or, work with them?

Again, thanks for opening yourself up to us for questions. I for one appreciate the opportunity.

Kevin
www.kevacho.com

"Somebody… pass the joe."

Zack, good to see you, one question...

...my name is Ed Williams, and I write wild rural Southern country boy stories, sort of PG to R rated ones. My first book was published in both hardback and paperback by tiny traditional publishers, the second, "Rough As A Cob," was published by River City Publishing, a southern regional press out of Montgomery, AL. They're small, but have had a couple of books optioned off to New York houses, and do count Robert McCammon, Carolyn Haines, and George Singleton among their authors. My question - I'm just about finished with a Christmas novel set in Juliette, Georgia (tiny town where I grew up). It's pretty realistic, it's not one of those syrupy sweet Christmas stories by any stretch. Do you think something like this would be worth trying to pitch to a national press, or should I keep it with a Southern regional house? Thanks in advance for any advice/counsel that you may have.

Scare tactic, superstition or--

Hi, Andrew...

Perhaps you can address the folktale I've seen posted on another writer's discussion board about how a client and agent sever their relationship.

In this instance, the tale revolves around a client being UNABLE to sever a relationship with an agent who has stopped submitting the client's manuscript due a dispute over a matter of unpaid office expenses (under 200 bucks)...even though the initial term of the agreement expired six months ago.

According to the fable I've seen posted, the agent has the power to keep the client and her intellectual property in thrall until this debt is repaid. The agent a clause slipped into the boilerplate language stating the client couldn't leave his representation until any expenses incurred by the agent were repaid...

...Even though another clause provides for the resolution of a financial dispute through arbitration in the state from which the agent is allegedly licensed to do business.

However, now tales of terrifying repercussions are spreading--that if this debt is not repaid, whispers among the fearful have it that this wronged agent will then spread the word throughout the publishing kingdom that the impoverished client, who wishes only to be freed of this serfdom, will forevermore be branded a "deadbeat" or even worse-- "a difficult writer" (pause here for a crash of thunder,a streak of lightning and the rearing of frightened horses).

Her career will be destroyed, once word of this unpaid 180 bucks reaches the executive editorial office suite of Random House.

Inasmuch as the agent in question is of the fee-charging type, owns a major interest in a POD, is not a member of the AAR and has no sales record to speak of, I find the concept that anyone in the publishing industry would heed his complaints utterly ridiculous.

Furthermore, I find the concept that anyone would think that any agent ( after the agreement term has elapsed and notice given of the severance of said agreement) would actually have the legal wherewithal to encumber a client's intellectual property over a matter of 180 bucks just as astonishing.

What's your take on this--superstition, scare tactic or something...else?:eek

Re: Scare tactic, superstition or--

Jaxler, I'd like to know which agent is doing this. Contact me by email if you wish.

Re: Scare tactic, superstition or--

I don't mind posting the info, Dave. The guy isn't trying such a pathetic power ploy on me.

Good damn thing, too.

For him. :lol

Here's his site address:

www.bigscoreproductions.c...s.htm#dave

His name is David Robie. The client whom he is apparently running this game on is named Norma Beishir.

Re: Ask the Agent

Hi Ace:

It's absolutely normal for publishers to take months to reply to some submissions. What's unusual is your agent's desire to show it to only one house at a time. Generally speaking, if an agent is showing it to only one editor at a time, that agent has called the editor, made a pitch, and offered a period of exclusivity...and received a promise of a 10- or 30-day turnaround in return for that exclusivity. Otherwise, all this strategy says to me is that the agent is trying to avoid expenses in photocopying and delivery.

Hope that helps.

Best wishes,
Andy

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One thing you'll find out about me is that I'm fairly honest, sometimes to a fault (which may explain why someone posting in another topic here called me a jerk!).

Sure, I have had clients who got emotional and to those I say, sometimes the publishing business is like dating: You think he loved you, but he was just playing you. She told you she would be yours forever, then dumped you a few months later. You're excited about this new relationship, only to find out that it's not what you thought it was. And, of course, both dating and publishing have plenty of rejection.

How do I deal with the emotional clients? Pretty much the same way I deal with my emotional friends who are dating someone new: I try to keep them on level ground, to keep a realistic perspective, and not to get their hopes too high too early.

In the end, publishing is a business and the relationship between author and publisher is a business relationship. It may be friendly, but it's not actually a friendship. Many authors lose sight of that fact...and some editors also. But in the end, remember who signs your editor's paycheck and you'll be able to keep your expectations level.

Best wishes,
Andy

Re: Zack, good to see you, one question...

It's really difficult to answer a question like this without having read more about the plot, but my guess is that Xmas is a pretty universal holiday and, as such, a story that's about Xmas should have appeal beyond the small presses. In fact, just the other day, I had lunch with an editor who told me she wasn't interested in any fiction, unless it had the kind of general appeal that THE CHRISTMAS BOX or BRIDGES OF MADISON COUNTY had. Seems like a good argument in favor of spreading your wings, no?

Best wishes,
Andy

Re: Scare tactic, superstition or--

Jaxler:

I'm not an attorney, so this isn't actually legal advice, but here is what I understand to be the case in matters such as this:

An agent cannot hold an author "hostage" as you describe. An author can terminate an agent's services at any time. However—and this is a big "however"—the author may owe the agent commission on projects regardless of whether or not the representation services are ended. For example, if you sign with an agent for one year, but terminate after six months, then sell your book two months later, you may, in fact, owe that agent a commission on the sale.

As for the rest of it, well it seems to me to be extremely unlikely. For starters, an agent bad-mouthing an author in the manner you describe would raise significant eyebrows at a publisher. Unless the editor and agent were awfully good friends, I think most editors would assume some kind of bad blood and not worry about it. If they like the author's book, they'll buy it. And if the agent makes a stink to the publisher, the publisher would likely just say that they are sorry that a contractual dispute exists between the author and agent, but that the publisher can't be involved.

Further, I'm fairly certain the author might have a legal action against the publisher for taking such a step.

The other thing I'd say on this is that it definitely could endanger an active submission if the editor suddenly gets a call about a dispute between the author and agent. I think most editors would say "life is too short" and just pass on the book.

If the book is already under contract, however, the terms of the contract will remain in force, generally speaking, until something is executed by both the agent and the author changing those terms, e.g., splitting the commission and the author's share at the source.

Lastly, please remember that there are two sides to every story, be it a divorce or an agent and author splitting. You may be hearing something from a friend about an agent, but that agent may, in fact, be doing nothing wrong, or may simply be enforcing his or her rights under a written representation agreement, just as your friend's husband may not be the jackass she makes him out to be (remember what a nice guy he was at the Xmas party?). It's just that when there are emotions involved and people get frustrated and insecure, it's easier to make someone a "bad guy." Oh, and let's not forget that time your friend went off on you about nothing. Maybe she's done that a few times to her husband, and that's the reason for the divorce.

See what I mean? Two sides to every story. That said, I'm not sure that online bulletin boards are the best places to seek help on a matter such as this. I'd suggest your friend contact an attorney, or perhaps the Authors Guild, for some real advice based on a reading of her representation agreement.

Best wishes,
Andy Zack

Re: Ask the Agent

Thanks for allowing us to ask questions....we really appreciate it.

1. A very well known, highly respected, lucrative agent's reader asked for my first 50. I sent them to her and within a week, she wrote, "while I read so many excellent manuscripts from incredibly talented writers, I am afraid that I could not relate to yours, and I did not meet it with the rare enthusiasm I need to pass it on to agent X. Thank you for sharing your talent with us." PLEASE TRANSLATE. (It was a military thriller, so I'd be shocked if she could have related.)

2. Another agency, which deals primarily with Non-fiction (mine is fiction) said after first 50, "After careful consideration, we have decided that it does not fit our list." PLEASE TRANSLATE.

3. Another agency said that the publishers that they work with would not be interested, as it is not their kind of material.

So Mr. Zack, please tell me if they are speaking the truth or telling me something else. Keep in mind that my book has been heavily edited and reviewed by 15 people whose opinion I trust (English lit majors, voracious readers, teachers, etc). They all say that the beginning--the first 15 pages especially--blew them out of the water.

THANK YOU THANK YOU!!!!!!!!!!!

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Spywriter:

Unfortunately, those are all form rejects and just boil down to—to paraphrase a best-selling book title—they just aren't that into you...or your book.

If the agent in the first instance does military thrillers, his reader should know that and be able to recognize if it's his thing. If he doesn't, why are you querying him?

Similarly, why are you querying an agency that primarily does non-fiction about a work that is fiction?

You should consult Jeff Herman's guidebook to agents and see who does military thrillers and what their submission guidelines are. You can find it and other recommended books at http://www.zackcompany.com/recbooks.htm.

Best,
Andy

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Hi, Andy-

I read the contract in question and it's standard issue agent-client boilerplate except for the clause about her not being allowed to leave the agent's representation until all debts are paid...regardless of the fact the initial term expired about six months ago.

Out of the three agent-client agreements I've signed in my career, that was a new clause on me and I had serious doubts as to its legal enforcebility.

According to her, the agent hasn't sent the manuscript anywhere in well over six months because of the office expenses she owes, so it's not under consideration anywhere much less under contract.

I advised her to mail the guy a registered letter giving him a thirty day notice that their business relationship was formally at an end as well as to query the Author's Guild.

But since the whole sticking point was her worry the agent could hold her intellectual property "hostage" as you put it, over a matter of office expenses, you've just confirmed what I told her...that it couldn't be done.

He can take her to small claims or arbitration as the contract allows to recover the monies he claims he is owed, but other than that, he can't encumber her intellectual property.

Thanks for your input!

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Jaxler:

Perhaps a stupid question, but does your friend honestly owe the guy money? Were the expenses in question valid? If so, then why isn't your friend paying him?

Best wishes,
Andy

Re: Ask the Agent

Andy--

From what I understand, she underwent some very hard financial times over the last year or so...and has never denied owing him the office expenses.

But evidently, when she tried to work out some sort of payback plan with him, his attitude was essentially "when I gets mah money,you gets yer freedom and yer book back".

When she countered that if he sent the manuscript out again instead of sitting on it, he would increase the chances of placing it and therefore his chances of earning a commission and repayment of the expenses, his reaction was that he would not incur any further costs on her account.

And the relationship has been at a stalemate ever since, with the clock running out their agreement until the term finally expired.

Over the last few months, he apparently gave her the impression that the clause in an expired contract prevents her from sending out her manuscript another publisher herself or seeking new representation.

Of course, assuming such a clause was even vaguely enforceable, some sort of civil judgement would have to be levied first, which would mean a court date and all sorts of other legal haggles and hassles.

On a strictly personal level--

I don't believe in fee-charging agents. I've never had one and never intend to. I don't charge postage or printer paper or office furniture back to my publisher and so I don't believe an agent should charge the normal cost of being in their business of choice back to a client.

If I call my agent and ask her to overnight my manuscript to the Ukraine, then I will of course be responsible for that charge as I would any fees or costs over and above the normal day-to-day business expenses she might incur on my behalf.

If expenses are incurred by an agent on a client's behalf that are beyond the usual postage, normal photocopying and long distance phone calls, then the definition of those charges should be spelled out in the body of the agreement.

In this case, they were not. They were referred to under the general "catch-all" of office expenses and from what I've ascertained, they were not unusual in nature.

And even if they were unusual, for this guy to work a clause into the contract that the client couldn't leave his representation until all debts were paid has rather Mephistopholean whiff to it, don't you think?

Another question begs to be asked--since he was the one who put the clause into the contract regarding arbitration, why he hasn't undertaken that option after all this time?

At the very least, he would be awarded the judgement against his former client and everybody could move on.

Re: Ask the Agent

Jaxler:

If I understand the case, your friend signed a representation agreement stating that she would reimburse the agent for certain incurred expenses. She then ran into financial difficulty and couldn't repay him. Her contract stated that she was not allowed to shop her manuscript to another party until she did so. The agent refused to incur further expenses on behalf of the client and the situation stalemated there.

From my perspective, it seems a shame the agent didn't simply try and work out a payment plan for the expenses, as that might have kept things very amicable. On the flip side, it doesn't seem that the author has made any effort to pay these expenses she owes (I'm sure the agent would have taken her partial payment and deposited it). So, it seems neither side has really made much of an effort to resolve this.

There are clauses in a contract that survive termination. This may be one of them. Again, your friend needs to consult an attorney, though the expense of doing so may be greater than the expense of paying off the expenses which, would, after all, resolve her problem.

Similarly, the expense of taking her to arbitration would exceed the amount due, so the agent hasn't done so.

With regard to your personal beliefs, well, you're entitled to them, of course, but what seems under discussion here is not "fee charging," but the charging back of out-of-pocket expenses. Your friend signed a contract agreeing to that. You may choose not do so. But you may have a tough time finding an agent who believes as you do, as most agents I know do charge back such expenses. Commissions cover time, knowledge, experience, contacts, etc., but not photocopying, shipping, office supplies, etc. Those are expenses you would incur with or without an agent. An attorney would charge you both to send and receive a fax. So might your accountant. Or your publicist. Why not your agent? I know agents that require the author to have 15 copies of the manuscript delivered to them. Is that preferable to having the agent do it, ensure they meet with his approval in terms of quality, and then charge the reasonable cost back?

You don't charge your publisher back for paper and photocopying, etc., because your publishing agreement says you will provide your publisher with a copy, and it specifies the format of that copy. You agreed to it in your contract the same way your friend agreed to it.

As for the clause itself, well, I don't think it's fully enforceable, but then again it does remind me of many a publishing agreement that states that rights to an author's work will not be reverted to the author as long as there are any sums due to the publisher from the author, e.g., for books purchased, for the indexing fee, for typesetter's corrections (but not an unearned advance). And, put in comparison to that, I have to say that the clause doesn't appear so heinous. I don't think it's enforceable because there's been no exchange of money for the rights, unless the representation agreement granted the author a percentage of ownership in the property. That would be very unusual, though. What he might have, actually, is a lien of some kind, but I'm not familiar enough the law to say for sure.

In the end, literary representation is a business. Your friend entered into a what I assume was a binding contract and I assume she did it of her own free will. Can the agent enforce that clause? Likely not without incurring legal expenses, which he may not want to do. Hence, I suspect that, in the end, you friend may do what she wants with the rights and the agent will be forced to eat the costs that your friend contractually committed to paying. While not an attorney, to me it looks like your friend is in breach of contract and, ultimately, in the wrong. Could the agent have handled the situation with greater compassion and with greater creativity toward resolving the matter? Probably. But perhaps it just wasn't worth his time. After all, he has a client who breached a contract. Why waste more time with her when he has clients in good standing who require his attention? There is such a thing as throwing good money after bad and it appears this agent chose not to do so.

I know you may disagree with this, but I call them as I see them.

Best,

Re: Ask the Agent

Andy...

Thanks for the response. I guess a better question is this...

Let's say you have 10 incredible MS in front of you, but you just cannot take on all of them. And clearly, while they are all outstanding, one or two really shine. What do you write to the 8 others you are NOT taking on? Do you give them that standard form letter, or do you say "HEY...you were right up there, but I had to say no?" I am just really curious.

ALSO...let's say you request a MS and when you read it, you are shocked by the typos and the writer's inability to write. If its HORRIBLE do you tell them to work on it some more, or do they get the standard NO THANKS letter. Again,,,just curious.

BTW, I sent a query to a mostly non-fiction agent because they said that they were seeking my kind of book to break into the fiction world. I know, I know...but you gotta try to find your break somewhere!

THANK YOU AGAIN...this is great. We all value your time and knowledge!

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Spywriter:

The first situation will just never happen. Never! I promise you. Finding ONE is struggle.

When I find a manuscript that is close, but not quite there, I write the author a letter explaining why.

Keep in mind that I do not request many full manuscripts. I read queries and in maybe 5% of the cases request a sample chapter. Then, maybe, just maybe 2% of those I request a full manuscript (I'm ball-parking here because I don't do the math, but you can see a lot about how much we read by viewing the Submissions page at my website). In almost every case where I request a manuscript, I write a letter explaining why I'm passing.

99.9% of the queries we reject with a form postcard. Probably 98% of the sample chapters we reject with a form postcard.

I realize these stats aren't promising, but I think they are fairly standard given the number of queries and submissions agents get.

Best,

Re: Ask the Agent

I agree with some of what you posted, and disagree with other parts.

Norma may have been in breach of contract by not paying the office expenses upon demand, but I would imagine when the agent stopped submitting the manuscript that decision falls within the parameters of breaching the agreement himself, certainly voiding it since neither one of them were abiding by the terms.

None of the agents I've ever retained have ever charged back reasonable office expenses to me, ever. Not for one postage stamp or a single paper clip.

And if it ever happens, I expect to receive an itemized list, not an umbrella charge of "office expenses".

If I'm asked for 15 photocopies, I'll arrange to have them done myself and ship them to my agent myself...and write it off as a business expense on my taxes.

As for a lien on an intellectual property...if Norma had signed over a specific and seperate agreement granting him a percentage of ownership in copyright of the property, then maybe.

But she didn't and the copyright law is clear that a seperate instrument has to be created that provides for even a partial transfer of copyright.

As for her being in the wrong, she's never denied owing the debt. She's tried to work it out.

As for the agent being in the wrong--you don't try to terrorize somebody into putting their careers on hold because you hold fast to an arbitrary and weird and essentially unenforceable indentured servitude clause.

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Do you think it ethical for an agent to charge a fee to read a ms ahead of others lying in the slush pile? This question was recently brought up and even though the fee was small, is this agent doing the right thing?
Wannabe
chamran