Attack of the Self-Publishing Memes! - A Guest Post by Barry Eisler

Barry Eisler has posted a number of smart comments on this topic here and on a few other blogs, too, and I asked him if he'd mind pulling them together in a single post. It was either that or another online conversation, and since we can't seem to do those in under 10,000 words and both have books to finish, this seemed the better bet.

Here's Barry:

Thanks, Joe, for the opportunity to pull together some of my thinking on literary agents helping authors self-publish. I see two primary false memes that have emerged in response to agents offering their clients new services. These are: (i) such agents are now publishers; and (ii) the new model creates a conflict of interest with the old. Let me address these in turn.

1. Are agents who assist their self-published clients now really publishers?

The problem here is that many people are conflating two business models: those in which literary agencies are trying to acquire rights in authors' works, as publishers always have; and those that acquire no rights, and instead simply facilitate their clients' self-publishing efforts.

We're still in the early days of digital publishing, and it's natural that there's some confusion about what makes a "publisher." Most of what people associate with a publisher -- editing, marketing, distribution -- are the artifacts, not the essence. The essence of publishing is control of rights.

For the reasons Joe and I discussed in Part 3 of our online conversation Be The Monkey, Amazon's Thomas & Mercer is no legacy publisher. But there's no question that T&M is, in fact, a publisher, because the company is buying the rights to the books it sells. By contrast, no matter who she chooses to hire to assist her in getting her works to readers, an author who retains rights to her works is self-published. And the company she hires to help her is not a publisher.

There's been some silliness along the lines of, "But if the agent uploads your book, she has to have rights to it, and if she has rights to it, she is a publisher, QED!" As David Gaughran has ably pointed out, if this is true, then Smashwords is a publisher. They're not: they're a distributor with a limited right to upload and to collect and distribute the author's earnings. They acquire no rights to a book beyond these and an author can pull his book from Smashwords at any time. For that matter, Amazon and B&N acquire certain rights in the books they distribute, too. So far, I haven't heard anyone make the claim that by ceding those rights, self-published authors have turned Amazon and B&N into their publishers.

As the copyright holder, an author can transfer all sorts of rights. It's important to keep them straight in one's mind, and to remember that rights to upload files and to collect money, especially when revocable at the author's discretion, are not the same as publishing rights. For more, see Joe's post on J.K. Rowling's decision to self-publish her ebooks (and the comments to that post).

(Joe sez: Also, we can rightly assume that Amazon has worked with literary agents in various deals. A lit agent could upload ebooks to Amazon for a writer without the writer relinquishing rights.)

2. Are agents who assist their self-published clients faced with a conflict of interest?

Let's start with a definition. According to Wikipedia, "A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other."

It's hard to see how this applies to an agent who in neither the legacy nor the self-published model acquires rights, and who in both instances earns the same percentage. As long as the agent makes the same 15% whether brokering a sale to a legacy publisher or assisting the author publish the work herself, the agent is incentivized to recommend the route that looks most likely to make the author the most money. So no multiple interests, or at least no more so than has been the case with traditional agenting. Or, to get back to the precise definition of the term, no "multiple interests" in the additional model, nor any way in which one aspect of the business "could possibly corrupt the motivation for an act in the other."

Full disclosure, so that people can judge for themselves whether I have my own conflict here: Laura Rennert of the Andrea Brown Literary Agency, which is also assisting its clients who want to self-publish with a 15%, no-rights-acquisition model, is my wife.

Here's a thought experiment I hope will lead to some more clarity on this issue. Imagine you're an author, and you have offers of representation from two literary agencies that are identical in all respects save one: one will assist its clients in reaching readers only by attempting to sell its clients' works to legacy publishers; the other will assist its clients in reaching readers by attempting to sell its clients' works to legacy publishers *and* will also help clients self-publish their works if their clients so desire.

Which offer do you accept?

Unless you're sure that: (i) you will never self-publish anything; or (ii) that even if you do, you will handle it all yourself, I think it's pretty clear that you'd go with the agency that offered you the more complete set of services.

Or, to put it another way: which of the two hypothetical agencies I describe above would a writer want for representation as legacy publishing contracts? The one that says, "Sorry, we can't sell your manuscript because there are so few buyers?" Or the one that says, "We can't sell your manuscript because there are so few buyers, but we can help you another way?"

I have a hard time imagining agents nefariously trying to steer their clients to a new model whereby the agent's percentage is the same, but where there is no advance, where the agent has to invest significant additional time and her own money, and where there is no certainty of a return on the investment except perhaps in the very long term. So if anything, I think people might argue that agents who offer both models might be tempted to steer their clients toward a traditional deal because it represents a relatively quick and easy payday. But would this be a conflict of interest? An interesting question, because it ignores the fact that this is what agents have always done simply by default. Still, self-published authors, beware! Your agents might be trying to steer you toward legacy deals.

Actually, I'd go even further (and for this point I'm indebted to Livia Blackburne, who shared this thought at Writer Beware). The real conflict of interest arises when an agent with a single, legacy model has to advise a client who is considering self-publishing. Where do writers think they're likely to get the most disinterested advice: from an agent who can only make money if she sells the writer's manuscript to a legacy publisher and who stands to make nothing if the writer self-publishes it? Or from an agent that stands to make 15% either way?

So upon further consideration, I do think that today there is a potential conflict of interest in agenting. It exists among those agencies who can only make money by directing their clients toward legacy deals.

Part of the basis for the conflict of interest misunderstanding is a misunderstanding about the nature of the agent's role. As Victoria Strauss has argued at Writer Beware, "[T]he author-agent relationship... is founded on the premise that the agent's job is to sell the client's work for the best possible advance to the best possible publisher."

I would argue that this is defining the author/agent relationship premise too narrowly. Most fundamentally, the purpose -- the end -- of the agent is to help authors get their books to the greatest number of readers and achieve the greatest possible commercial and literary success. The means by which this end has traditionally been achieved is a sale to a legacy publisher. Because the "sale to a publisher" route has until quite recently been the only means to the "getting the book to the greatest number of readers and achieve the greatest possible commercial and literary success" end, it's easy to conflate the two. But just as railroads were not in the railroad business, but rather were in the transportation business, agents are not in the "selling to publishers" business, but rather are in the "helping their authors reach the greatest number of readers and achieve the greatest possible commercial and literary success" business. Agents who miss this fundamental distinction are making the same mistake the railroad companies made, and will achieve similar results.

The saddest thing about these false memes is that they distract from the real and important questions writers need to grapple with: exactly what are agencies going to provide in their new models, and will those services be worth 15%? Whether 15% is worth it is something authors and agencies will have to decide for themselves (I think David Gaughran is asking excellent questions in this regard, and Joe and I talk about it much more in Be The Monkey). But whether a service is worth providing or worth retaining at a given price is a question for the market to decide. It has nothing to do with conflicts of interest, or with the inherent value of agencies finding news ways to assist their clients reach the greatest number of readers and achieve the greatest possible commercial and literary success.

There's more to say, but I gotta get back to The Detachment (out September 15, BTW ;) ). But just one last observation. It strikes me that the "If you hire someone to help you run your business, you're no longer self-publishing" meme is the mirror image of the "If you don't go with a legacy publisher, you're uploading unedited schlock" meme. Each is driven less by thought and evidence than by ideology and a weird form of narcissism. Which might be a common reaction in all revolutions, not just in the one we're witnessing in publishing.

Joe sez: As I said in the comments of my last blog post on this topic, it's good to be skeptical. But it's also good to keep an open mind until all the facts come it. In other words, don't knock it until you (or someone you trust) has tried it.

I'm trying it. My agent will manage one of my self-pubbed properties. I'll report on how it goes, good or bad.

Until then, let's try to reserve judgement. Anything else is specious.
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