31 January 2008

Silent E

A recent quasifiasco concerning the choice of a pseudonym illuminates one of the reasons that I want the literary agent community to be licensed and regulated. As noted by both Sarah Weinman and Ron Hogan, one of the latest manufactured-for-publicity "mysteries" in publishing is the identity of Inger Wolfe, the pseudonym chosen by an undisclosed "Canadian literary author" for a forthcoming mystery novel. Meanwhile, as Weinman notes, there's already a Danish mystery writer named Inger Wolf (no terminal e) with her own website.

This leads to an obvious question: Exactly what idiot approved this choice of pseudonym, which almost certainly breaches European unfair competition and trademark law and probably breaches US unfair competition and trademark law? It obviously wasn't a competent attorney; any competent attorney would have routinely done a trademark clearance as part of the process of picking a pseudonym, and it would have turned this up.1 However, most literary agents never get to the point of being able to spell "trademark," even though they are de facto representing third parties and drafting contracts requiring legal judgment on the behalf of those third parties. That's the practice of law. And literary agents — as recent sad experience demonstrates — have a far, far more sophisticated understanding of the relationship among author identity, publishing branding, and trademark and unfair competition law than do editors, art directors, and "contract specialists" at publishers.

I don't think all agents need to be lawyers; for one thing, the skill set for being an agent is the opposite of what one learns in the last half of law school. I do think that all agents need a certain, mandated legal education, roughly equivalent to a full semester of law school, in some basic legal doctrine; not just contract interpretation and drafting, but copyright, trademark, the personality torts (defamation, privacy, rights of publicity), basic civil procedure and choice of law, dispute resolution, and a smattering of other law-school-level topics. The purpose of this kind of education mandate is twofold:

  • Provide a high-enough entry barrier to keep out some of the sleaze — probably a majority of "agents" out there (most of whom you've never heard of), or at least pretty close to a majority, are either outright con artists or well-meaning schlubs who will never place a book with a commercial publisher of any size
  • Enable literary agents to know when they need counsel, and encourage them to get counsel early when it's relatively cheap

I've waited until now to comment on this because I wanted a chance to read and digest an opinion I knew was forthcoming (PDF) from the California Supreme Court. California has state regulation of talent agents... but only within the film and TV industries. It does not regulate "personal managers"; neither does it regulate literary agents. Leaving aside the disdain this implies for written work, it also sets up a rather dangerous and arbitrary distinction between when someone is acting as a "talent agent" and when that same person, for the same client, is acting as a "personal manager."

  1. In this particular instance, a simple web search would have turned this up.

    One of the major services that does this thing will work for anyone who has $95 to spare, and provides a pretty-easy-to-interpret and pretty exhaustive report. It comes perilously close to malpractice to not use such a service... or, at least, it would if literary agents were regulated, and therefore subject to liability for "malpractice" in the first place. I don't get a commission or referral fee for recommending Thomson's services; they're not the only provider of these services, but in my experience they provide the best balance of timeliness, cost, comprehensiveness, and understandability.