In fact, his survivors and former clients might be inspired to shake their fists over his poor moldering body if he made inadequate provisions for the operation of his business in the event of his demise. Among the prizes of my horror story collection are those about authors whose money was tied up for years while their late agent's estate underwent probate.
These disturbing tales vividly point up the need for agents, while they are still vital and compos mentis (if anyone consciously electing to become an agent may be said to be compos mentis), to determine exactly how their estate administrators or business partners or employees will handle their business, especially cash flow in and out of their agency, until the formalities of probate are concluded. For, despite the remark by one publisher that the only good agent is a dead agent, the worst living agent in the world is better than the best dead one if the latter's passing creates a lot of aggravation for his clients. But much of it can be avoided by candid discussion of these matters between author and agent, and by some simple contractual measures in cases where the agent hasn't made appropriate provisions.
So, let's look death squarely in the eye and utter the unutterable: sooner or later your agent, like everybody else, has got to meet his maker. Despite the image of invulnerability and immortality agents try to project in order to intimidate publishers and reassure clients, actuarial statistics indicate that their track record in escaping the Grim Reaper is no better than anybody else's. And while autopsies do reveal some physiological characteristics unique to literary agents, such as overdeveloped spleens, ossified hearts, jaded palates, and a circulatory system of iced water, there are no indications of divine creation. This means that they are fallible just like you, and like you they don't pay as much concern as they should to the practical consequences of their death. But as the practical consequences of your agent's death may be to drive you close to bankruptcy, it's best for you to raise questions now while his body is still warm; if you choose to avoid the subject, you may be casting yourself to the treacherous winds of state probate law.
Let's talk about that law.
Although it differs from state to state, it is almost universally true that an individual's assets are frozen as soon as the authorities learn about his demise. This information is communicated to those authorities in a variety of ways: death certificates issued by doctors and hospitals, newspaper obituaries, cemetery and funeral home records, and voluntary reports by estate executors, next of kin, etc. As soon as the authorities have been informed, they are required to order the immediate freezing of all known bank accounts belonging to the deceased and the sealing of his personal safe deposit box. Except for insurance settlements and whatever liquid assets (cash, jewelry) may be converted for the use of the survivors, no funds are available to settle claims until the deceased's estate has been probated.
Entire court systems exist in every state for the probating of estates. The purpose of this procedure is to insure the proper settlement of claims on those estates. If the deceased made out a will, it must be reviewed to make certain it was properly executed; heirs must be located, signatures of the deceased and witnesses confirmed, and claims by heirs, legatees, and creditors examined. Even when the process proceeds without a hitch, it can take months and months. If the will is challenged, the delay may be even longer. We're talking about years, folks. And if the deceased left no will at all, requiring the appointment of a public administrator to sift through the deceased's affairs, well, you don't want to know about it.
This procedure applies equally to rich and poor, male and female, mighty and humble, to people of every race and creed, to industrial magnates, ditchdiggers, doctors, lawyers—and literary agents. Unless your agent is incorporated, it doesn't matter whether he has a thousand able people working for him, the best law firm in the country, and the most sympathetic survivors you could ever ask for: you will not immediately be able to get your hands on the money owed to you by your publisher.
Within days after your agent's death his agency checking account will be frozen, and whatever balance is in it will remain in it. Whatever funds are receivable by him, such as your advances and royalties, will go undisbursed while his estate is probated. Do you see a nightmare scenario shaping up? Wait, it gets worse.
You (or your lawyer, or the new agent you hired after three minutes of mourning for your last one) pay a visit to your publishers. You talk about your late agent. "Terrible thing," you say, clucking your tongue.
"Terrible," your publisher replies, but clucklessly.
Now you get down to business. "You know, royalty time is coming and you guys are going to owe me all this money. Those idiot lawyers for the estate are giving me a hard time about probate. So how about you paying the royalties directly to me, or to my new agent? If you want to go on paying the commission to the estate, fine, but the rest should go to me. Any problem with that?"
Your publisher's eyes are all sympathy, but his palms are turned up in a gesture of helplessness. "It's not that easy. We've referred the matter to Legal, and you know how they are."
"No," you reply through clenched teeth. "How are they?"
"Uh, very technical," says your editor.
What your editor means is that in the absence of clear-cut legal instructions, Legal can and will do nothing. And there's a lot about your agent's death that is not clear-cut. Did you have an agreement with him spelling out what commissions he was to take on your money? How can anyone be sure he didn't advance you money or incur some charges against your account (like that $435 in manuscript photocopy charges for that auction that flopped) that must be recovered? About the only things that are clear-cut are the contracts your agent negotiated with your publishers irrevocably requiring them to pay all your money to him! Legal cannot take the risk that the estate will sue your publishers for paying you money that rightfully belonged to your agent. The only thing Legal can do is point you in the direction of the bathroom so you don't whoops all over their carpet.
If your agent was incorporated you can breathe a big sigh of relief. Among the many reasons corporations exist is to furnish uninterrupted operation of the firm should the principal officer die. When a corporation is created, stock is issued. If it's issued to just the owner or a small number of people it's called a "closely held" corporation; or the stock can be issued or sold to a great many people. Either way, the principle is the same: the corporation is a business entity with a life of its own. Even if the corporation consists of just one person, the corporation survives his or her death. The corporate bylaws and minutes provide for the administration of the firm by other appointed officers or ones appointed by the heirs to the deceased's estate. The stock in the company is part of that estate, but no matter how horrendous the battle over the deceased's will may be, or even if he or she didn't make one out at all, the fiduciary function of the corporation cannot be interrupted. Of course, if it was a one-person operation there may be a lot of delay and confusion while your situation is being sorted out, whereas in a larger company there are usually other employees familiar with your account who can fill the breach left by your late agent and provide immediate continuity. But whether the corporation is great or tiny, its accounts cannot be frozen. Corporate law allows the firm to carry on while the late owner's estate is being settled.
Why then, you may ask, don't all agents incorporate? The reason is that it doesn't pay to do so if their revenues are modest. The start-up and administrative costs of a corporation are considerable, and the rule of thumb is that unless your firm is earning $100,000 annually or more (which, for an agent, means upward of $700,000 in sales depending on the size of his commission), it's not worth incorporating. I don't know exactly how many literary agents are currently incorporated, but a quick stroll through the pages of Literary Market Place, the directory of the publishing trade, suggests that at least half the listed agents are not incorporated.
If your agent is among these, what can you do to avoid the dreadful problems I've described? After consulting with a number of lawyers I would like to make a suggestion that will probably not endear either you or me to your agent but may rescue your money from the clutches of state probate law. And that is for you to ask your agent to sign a letter (with the signature notarized) directing your publishers, in the event of his death, to thereupon pay your net share of monies after commission directly to you and to pay only the agent's commission to the agency or its legal heirs or assigns. I don't know whether such a letter will stick with all your publishers, and it's impossible to predict whether it might be disputed by your late agent's estate, but it beats the scenario I described earlier. Speak to your lawyer about drafting such a letter, which might either be a "To Whom It May Concern" document or a notarized letter addressed to each specific publisher who publishes you.
You might also ask your agent what, if any, provisions he has made for the operation of his company in the event of his death, and whether his employees or heirs are sufficiently familiar with his business to administer it after he's gone. It may be that he has given the matter some thought and decided or even provided in his will to sell or assign his "agency of record" to some other agent with whom he feels his clients will be compatible should he die. It may even be possible for him to structure a sale or assignment to that other agent that is triggered by his death, as a means of avoiding tie-up of cash flow during probate. It's certainly worth exploring, given the alternative.
Even if your agent is incorporated, it's desirable to discuss candidly the measures he has taken against the possibility of his demise. Can his colleagues or employees take over the company? Can his spouse or other heirs? Does he contemplate liquidation of his firm or sale to another agency? Does he carry insurance naming the corporation as beneficiary to furnish it with operating cash during the transition period?
The questions we've raised here are important enough to be factors in choosing and remaining with an agent. For, while every literary agent hopes to live to a ripe age and die in bed, his flesh is heir to the same afflictions that strike so many others down before their time, to say nothing of muggers and crazed taxi drivers. Should your agent succumb to any of these, you will not want his tortured spirit to roam the earth forever howling over the colossal foul-ups and bad will he created by not planning ahead.
EVERY SOCIETY CREATES rules to prevent anarchy, and the society of author-publisher-agent is no exception. Of course, the more civilized the society, the subtler its rules and the more sophisticated its sanctions for reinforcing them. The publishing business certainly fits the description of a civilized society, comprised as it is of well-educated, literate individuals operating in highly organized (sometimes, anyway) corporate entities and dealing in the extremely sophisticated activity of translating ideas into merchandise.
Actually, if you step far enough away from the sophistication of the publishing process you will see that it still boils down to a matter of seller, buyer, and broker struggling primitively with one another for dominance. Anyone who has lived in or studied the publishing anthill for any length of time can testify that there is as much plundering, treachery, rapine, and bopping on the head as may be found in the most aboriginal of civilizations. The only difference is that we prefer not to call these things by their names, as it sullies our self-image. I remember an editor describing the dapper, distinguished head of one of our most illustrious publishing companies: "Oh,he stabs you in the back like everyone else—it just takes you two weeks to realize you're dead."
In publishing, the rules governing behavior are codified into a system of protocol and etiquette called "courtesy." Courtesy is not always easy to define because editors, authors, and agents each have their own code and the three don't always harmonize. For instance, some agents feel there is nothing wrong with not telling an editor they are submitting the same manuscript to other publishers. From an editor's viewpoint, however, that is discourteous, for if an editor knows he is one of several considering a submission he will behave differently than he will if he thinks he is the exclusive recipient of the manuscript.
Editors may balk at discovering that an author has taken on a project for another publisher while under contract with them. Even though the author may not be breaching his contract (some contracts prohibit authors from working on any other book until the contracted book is completed), and even though the author completes the first book satisfactorily and on time, and even though the author took on the second project because the advance on the first was inadequate for him to live on while writing it, the editor may nevertheless feel that the author has discourteously affronted the monogamous spirit of the author-editor relationship.
Despite the quaintness of the word, a breach of courtesy can be a grave offense that leads to strained or even ruptured relations between an author and publisher or agent and publisher. I recall with a shiver how, as a tyro in the publishing business, I committed such a gaffe against the late and great Macmillan editor Peter Ritner, a blunt and bearish man who brooked no nonsense from callow upstarts. It happened in a swank restaurant at the height of the luncheon hour. I told him I had been speaking to another publisher about his author. "That," Ritner boomed at me in his awesome operatic baritone, "was most discourteous of you, sir." All that night I tossed in bed listening for the stomp on the stairs of Macmillan editorial assistants coming to frog-march me off for interrogation.
Space limitations prohibit me from enumerating all the points of protocol and etiquette that prevail in the editorial world, even if I knew what they were. Many of them are the same rules of the road that regulate other forms of social intercourse. Others are unique to our business. Until you feel completely comfortable in that world, until you know the players and are able to bend or break the rules with impunity, the following ten commandments ought to keep you out of the more serious forms of trouble.
1. Keep your big mouth shut. When speaking to agents and editors, refrain from criticizing other agents and editors. You must never assume that the person you are talking to cherishes the same poor opinion of someone that you do. Many is the time I've listened to prospective clients complaining that this editor was a jerk and that publisher was a fool and this agent was a crowning idiot, and I've found myself thinking, "What's wrong with this guy?"
If you've had a bad experience, say as little as you can, and if you can't be charitable, perhaps it's best to say nothing at all. Lord knows, people in our business understand when you tell them you toured Chicago and Denver and there were no books in the stores, or your publisher originally promised you a 25,000-copy printing but ended up ordering only 7,500 copies. But for you to say, "My editor just sat there and did nothing, and my agent was too busy going to cocktail parties" may reflect worse on you than on those you so harshly judge, however deserving of criticism they may be.
2. Don't be overly chummy with editors. Whether or not you have an agent, be restrained in your dealings with editors. It is more important for them to respect your work than to like or love you. You must never forget that editors work for corporations dedicated to making a profit, and as often as not that profit is made at the expense of authors. However tight you and your editor may be, the time must inevitably come when you will want something he cannot give you, and he will want something you cannot give him. In the resulting negotiation, the closer your friendship, the harder it will be for you to hold out for the best terms. Your editor may care deeply about you, but his corporation cares deeply about its bottom line, and few editors will stake their job for the sake of an author.
From the viewpoint of an agent, the biggest discourtesy imaginable is for an editor to take advantage of an author's vulnerability. That's why many agents take strenuous measures to keep authors and editors apart and to funnel all communications through their agency. Many agents resist giving out their clients' phone numbers to editors or allowing any direct exposure of authors to publishing personnel. They are acting out of concern that editors may take advantage of authors if given the opportunity.
My own view is that a certain amount of contact is both necessary and desirable, and as long as authors are aware of the pitfalls of such contact, and keep their agents apprised of all developments, things cannot go too far wrong.
3. Keep your big mouth shut. Think before you speak. The things you tell an editor may not have the effect you intended and in fact may have the opposite one. The editor who granted you a nine-month delivery date on your book may not be delighted to learn that you'll be finishing it four months ahead of schedule. He may in fact be appalled that a project as demanding as that one will take so little of your time, upset that you're not doing your research or that you're writing too fast or that the manuscript will come in too short. Better simply to say, "Don't worry, you'll get your book on time." If you do think you're going to finish it early and your editor thinks he would like to get it on an earlier list, you can say you'll try to turn it in sooner.
Volunteer as little information as possible, and try to think things through from an editor's viewpoint. Should you be telling your editor you don't want any more money this year? Should you be telling your editor you weren't terribly happy with the first draft but you're sure the final one will be okay? Should yoube telling your editor you had to take on another writing project to make ends meet?
Authors volunteer all sorts of information because they feel the editor is their friend. But if you'll try to project yourself into the mind of your editor, or better yet of his boss, you might find yourself biting your tongue a little more often.
4. Go through your agent for everything. If you do have an agent, centralize all dealings through him or her. Contracts, submissions, delivered manuscripts should all be sent to your agent no matter how convenient it is for you simply to send the material directly to your editor. Aside from observing the procedural proprieties by doing things this way, you keep your publishers on notice that you prefer for them to deal with your agent rather than with you. Even your correspondence with your editor should be sent to your agent for review and forwarding. That way your agent may pick up on some things you probably shouldn't be telling. And if that sounds like censorship, it's better than committing a blunder that might injure your relations with your publisher.
5. Keep your big mouth shut. If you have an agent, he will brief you before you go into a meeting with an editor. Listen very carefully to what he has to say. A good agent will background you not merely on your immediate business with your editor but on such things as the state of your publisher ("They're hot right now," or "They'rehungry, they haven't had a big book in three seasons"), the position of your editor ("He just joined the firm and he has to bring some good books in fast," or "Hehas no clout over there"), and other tidbits that will help you get a fix on conditions at your publishing house. Your agent will also tell you what to say and, perhaps more important, what not to say. And if he tells you not to say something, then for crying out loud don't say it, or leave it for your agent to explain. Your agent undoubtedly has good reasons for withholding certain information from your publisher, and those reasons may not always be clear to you. There may be undercurrents in his relationship with your editor that have nothing to do with you, or your agent may know something that you don't. He may be conducting negotiations with your editor for other authors besides you (there are other authors besides you, you know), and his dealings on your book may be part of a larger strategy. If your agent accompanies you to a meeting or luncheon, watch him so he can signal you with his eyes. Or sit beside him so he can signal you with a swift kick in the shins.
6. Report everything to your agent. In due time you may have direct contact with your editor and other staff members of your publisher concerning a variety of matters. Your editors might feel there's no point in bothering your agent about small stuff, so they will contact you directly. In most cases the business at hand will be routine, and requests will be innocent. But they can develop into problems if the author isn't alert or fails to discuss developments with his agent. Those routine queries about your manuscript by your copyeditor can develop into a request for a rewrite. The nice young lady who calls asking you to name some dates when you're free for promotional appearances may end up bullying you to accept a time that is inconvenient to you. I'm not saying it will happen every time, but it has happened in the past, and it can happen to you if you don't keep your agent au courant.
7. Keep your big mouth shut. When you're out with an editor, don't contradict your agent or question his handling of your work. And don't tolerate your editor's questioning of your agent's handling of your work. Publishers often have a vested interest in dividing authors and agents, and anything you inadvertently do to help them promote such divisions can only redound to your discredit and disadvantage.
8. Don't play your agent and editor off against each other. In your eagerness to please everybody, you may end up defeating yourself. On many occasions, for instance, an author and editor may have a friendship that long predates the relationship between author and literary agent. The introduction of the agent into that bond creates instabilities that may result in jealousy, tension, and even hostility, and the author sometimes fosters these emotions without realizing it, for it is, after all, highly gratifying to have two people fighting over you. How often has a client said to me, "That dirty rat Joe down at Feemster House has been taking advantage of our friendship for years, so on that next contract I want you to wring every dollar out of him that you can." Then, a moment later, he'll add, "But go easy on the guy, okay? I mean, he and I are old friends."
Experienced agents are sensitive to the dynamics of friendships between authors and editors and don't barge into the middle of them like crazed water buffalos. If, however, your agent does feel he has to be firm or tough with your old buddy, don't interfere. That, after all, is what you hired him for.
9. Keep your big mouth shut. Don't spread rumors or gossip, however knowledgeable it makes you look. For, in the long run, it makes you look like, well, a gossip. Because this is a gossipy industry, discretion is a highly prized virtue, and one that far outlasts the pleasures of spreading the Hot Scoop about somebody. And because this is also a small industry, gossip has a way of turning on its disseminators. As in any small town, you never know who is a friend, ally, relative, or business associate of whom. Rumors are traced to their sources with far more ease than you would imagine. Don't be a source: You don't need enemies.
10. And finally—Keep your big mouth shut. When in doubt, err on the side of silence. Let your work and your agent speak for you. Whenever you feel that impulse to say something that you suspect may be out of line, consider that you really have only two choices: count to ten and call your agent, or count to twenty and call your agent.
Don't make your agent's job harder by putting him into the position of having to apologize for you or explain away some indiscreet things you may have said. "God!" an agent friend of mine once burst out. "My job would be so easy if it weren't for authors!"
Although we tend to lose sight of the fact, writing is still a profession. Behave professionally. As a wise person once said, the best way to save face is to keep the bottom half of it closed.
All the best,
Next: Chapter 37 and 38
About Richard Curtis
Richard Curtis, president of Richard Curtis Associates, Inc.,
is a leading New York literary agent and well-known author
advocate. He is also the author of numerous works of fiction
and non-fiction, including several books about the publishing
He graduated from Syracuse University in 1958 with a BA in
American Studies and also from the University of Wyoming with
a Masters degree, again in American Studies. He joined Scott
Meredith Literary Agency after graduation, and was foreign
rights manager there for seven years. In 1967, he launched
a freelance writing career, and has had some fifty books published
by many major houses. In the early 1970's, he began his own
literary agency, and in 1979 incorporated it. Richard Curtis
Associates, Inc. currently represents over 100 authors in
all fields. The agency reports more than $8 million in annual
sales for its authors.
Richard Curtis was the first president of the Independent
Literary Agents Association and President of the Association
of Authors' Representatives. He has had a long and active
participation in the Science Fiction Writers of America, including
fifteen years serving as agent for the organization. In 1994,
he was named recipient of the Romance Writers of American
Industry Award for Distinguished Service to Authors. He is
married and has two children. He currently resides in Manhattan.
His hobbies are sports, music and painting.
In 1999, his interest in emerging media and technology led
him to start E-Reads, now a leading e-book publisher. He has
lectured extensively and conducted panels and seminars devoted
to raising consciousness in the author and agent community
about the future of publishing.