Yes, Fire Your Agent

For any authors who didn’t think I was serious last time, a reader provides another case study in why you need to fire your literary agent. Or better yet, never hire one in the first place.

We push forward a decade to 2002 when I have sold my own dramatic television series to HBO. The Wire pilot turned out well enough that the project is set to get a first-season order from HBO and my television agent, Jeff Jacobs of CAA, suggests to me that this thing might really have legs.

“We want to package you,” he offers.

“Package me?”

“Yeah, we’ll take a package on this project and you get your ten-percent commission back.  Like with Homicide?

Hanh? “Jake, what the fuck are you talking about.”

“Homicide was packaged and we’ll do the same thing with The Wire.”

“Jake, slow down, what the hell does ‘packaged’ mean?”

And for the first time, Jacobs explains it to me: In order that my agents — the folks who held an absolute fiduciary responsibility to negotiate in good faith on my behalf and on behalf of my book — could be players in the creation of the TV project from that book, in order that they could own a chunk of the project itself and profit by millions of dollars from the work I had asked them to sell, they were willing to return my 7.5 percent commission and the commissions of any other talent they represented, packaging all of us together in a happy bundle for the network. Yes, incredibly, to avoid the most overt and untenable conflict-of-interest, they were willing to heroically give back to me a few thousand dollars in exchange for millions of dollars in points on a piece of NBC’s Homicide: Life on the Street which ran for seven years.

Oh.

“Jake, no one told me. No one said anything to me. Ever.”

There was a quiet on the phone.  Until I asked a second question: “What other talent did you package with me?”

“Barry Levinson.”

At which point, there was no more quiet.

“Jake, do you mean to say that you represented me, a pissant police reporter from Baltimore in a head-on negotiation with one of Hollywood’s A-list directors and you also represented the director?  You represented both sides in the sale of my book and when the low-ball offer came to me, Matt fucking Snyder acted like it was the only offer I might ever get? Is that what you motherfuckers did?”

“I thought you knew.”

“I did not know.”

“Didn’t Matt inform you?”

He did not. Not in any of our conversations.

“Did your book agent tell you?”

He did not.

Then I asked another question: “Jake, do you have any written consent from me on file in which I authorize you to rep both sides of the sale of my book? I will answer that for you: You do not. I never authorized this. Not to CAA. Not to my book agent. I never gave informed consent. I couldn’t. Because I was never informed.”

Had CAA, in fact, returned the 7.5 percent of my commission?

They had — to my book agent, who pocketed it. Quietly. I immediately wrote a letter to that grasping bastard: Dear thief, you will remit all of that 7.5 percent to me by week’s end or I will write up what happened here and have it posted on every Newspaper Guild bulletin board in every newsroom on the Mid-Atlantic seaboard and you will be known for what you are.  Further, I might also contact a U.S. Attorney about a failure of fiduciary responsibility so fundamental that it effectively constitutes the sharing of a bribe in exchange for an agreement to reduce the sale price of my book. Suffice to say, a check to me for the full 7.5 percent arrived within days.

Then I turned to CAA, a Big Four agency that was once fully content to screw me over when I was a stumblefuck newspaper reporter who to their thinking could only provide them with a book or two for sale. Years later, I was now a client about to become a showrunner on a premiere cable network. I had a little more leverage.

“Jake, I’m firing you and I’m taking The Wire and everything else with me.”

“Look,” he pleaded, “I know you’re mad. I don’t blame you. But personally, I didn’t do any of this. I’ve been straight up with you. I wasn’t your agent then. I wasn’t involved in packaging your book.”

No, I explained, but your agency was. And the profits from that are fungible. You’ve been good, Jake. You’ve been fair. But on a lie of omission, CAA — your agency — made millions and millions of dollars and did so by undercutting my negotiation with Levinson and failing to inform me of an absolute conflict of interest. I gotta go.

“What can we do to make this right?”

I thought about that because unlike the fucksquib in CAA’s literary department who should die of venereal boils, I actually liked my TV agent. He had, in fact, been forthright and fair in all of my subsequent years in television. So I explained that the agency had made millions off the conflict of interest and that for a reasonable “taste of their taste” of Homicide, whatever that was, I would remain as his client.

He ran that back up the ladder and came back a few days later: “We can’t do that. If we agree to give you a percentage of our packaging fees, it would set a bad precedent for all of our other packages.”

“Motherfucker, you’re talking about bad precedents? CAA repped both sides of a negotiation without informing me so that your taste of the profits would dwarf mine, your client.  How much money did CAA actually make on Homicide?”

Jake wasn’t allowed to say. Transparency was not an option. Instead, he suggested another path:

“What about a one-time lump sum payment that isn’t officially tied to our package?”

Eventually, frustrated but willing to compromise to keep Jake as my agent, I agreed to allow CAA to write a check for the same “penalty” that I had exacted from my literary agent. Another 7.5 percent of my original commission came back and  yes, Jeff Jacobs has remained my agent to this moment. Oh, I also asked Jake to make his CAA colleague get on the phone. I had some things to say.

I said them, and incredibly, the fiduciary pratfall and ethical void known as Matt Snyder stayed on the other end of that call insisting — after admitting he had no record whatsoever of me being informed of the conflict-of-interest between myself and the buyer of my book, or any claimed recollection of having informed me of such in all of our conversations — that he had done nothing improper, that my literary agent should have explained it all to me.

“Matt — absent any evidence of informed consent by me — that you and CAA proceeded to negotiate with Barry Levinson, whom you also represented, is a prima facie conflict-of-interest and a breach of fiduciary duty. If you were a realtor secretly representing both sides of a house sale, your license would be torn up. If you were a lawyer, you’d be disbarred.”

There was only a small pause before he explained himself:

“But I’m not a lawyer. I’m an agent.”

Yes you are.  Yes you fucking are.

It’s interesting to note that David Simon was willing to continue working with his TV agent Jeff Jacobs, even after it became crystal clear that Jacobs’ first loyalty was to his agency–the same agency that had unrepentantly screwed Simon and sought to keep screwing him.

Authors have a reputation for naive softheartedness in negotiation that is sadly well-deserved.

You are the creator of the work. Without you and your fellow artists, none of these parasitic agents would have jobs. Even in legacy media, publishers, editors, and agents are contractors who work FOR YOU. You are the boss. Act accordingly.

And support indie science fiction by picking up the thrilling mech adventure Combat Frame XSeed.

Buy it now!