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“The Agent: Personalities, Politics and Publishing” by Arthur M. Klebanoff Texere LLC, New York, 227 pages, $27.95 “Is this man a thief, and just what is he making off with?” – The New York Times , July 19, 2001, on Arthur M. Klebanoff Yale undergrad, the Harvard Law Review, the Lindsay and Nixon administrations — literary agent and e-book publisher Arthur M. Klebanoff has spent many years in the thick of history and helped to shape the modern publishing industry. He was the literary agent for Daniel Patrick Moynihan, Richard Nixon, John Haldeman, Bill Bradley and Michael Bloomberg. Klebanoff’s efforts in assisting the Vatican Library and publication of a newspaper column authored by the pope had some calling him (in error) the pope’s literary agent. From cookbooks to bird books to a book featuring Hertz’s O.J. Simpson advertising campaign, Klebanoff has pushed the envelope on extending products and brands through book publishing, licensing and creative promotion. In this fast-paced literary tell-all, Klebanoff not only drops names, but, more importantly for those of us paying rent and making payroll as attorneys trafficking in intellectual property, gives us the numbers behind the deals. “The Agent” surveys the publishing and licensing landscapes facing author and agent and talks frankly about the amount of money involved in literary and licensing deals, including commissions charged and fee-splitting arrangements with other agents. For the lawyer aspiring to act as a literary agent and looking for a business perspective, “The Agent” will give you a sense of whether you have what it takes and how you might make such a practice work. Klebanoff started out in a corporate law practice that started putting together book-publishing deals. Bit by bit, the role of literary agent took over the law practice of Janklow, Traum and Klebanoff. Eventually, Klebanoff decided to break out from Mort Janklow’s shadow to work independently. He worked for a brief stint with Mark McCormack’s IMG, before having an opportunity to purchase a literary agency. Klebanoff did not, however, write “The Agent” to assist his fellow members of the bar in developing literary interests. He owns the Scott Meredith Literary Agency and RosettaBooks LLC. Both entities have generated considerable controversy in the publishing world. Scott Meredith — somewhat scandalously — charges would-be authors to review and critique manuscripts. RosettaBooks buys electronic rights from authors who have, according to such major publishing houses as Random House, already sold those rights. Random House has gone to court to prove its case in the Southern District of New York before Judge Sidney Stein. But Klebanoff is not just some frustrated litigant with an axe to grind. In July 2001, Judge Stein denied Random House’s request for a preliminary injunction against RosettaBooks, finding that Random House had not demonstrated a likelihood of success on the merits based on an application of New York law to the plain language of the contracts between publisher and author. In January 2002, the 2nd U.S. Circuit Court of Appeals affirmed, noting that there were some mixed questions of fact and law to be resolved during the litigation process. The motherlode generating claims of piracy is the “backlist.” In the publishing world, the “frontlist” consists of the works that a publisher is promoting in a current season. The publisher rarely makes money on the frontlist, but depends for steady income on titles that have been published in previous years — the “backlist.” From the start of Klebanoff’s career and consistently (if not obsessively) throughout, his opportunities have come from targeting the backlist and spotting opportunities for authors and publishers in works sitting under their very own noses. Klebanoff feels that most publishers are lazy with the backlist, passively printing based on demand, with few efforts to promote an author’s backlist works deeply or creatively. Klebanoff has succeeded in taking top authors away from other literary agents by his presentations on an author’s past work. To land Danielle Steel as a client, he read her past works before meeting with her. During their meeting he explained how he would compel a publisher to renegotiate backlist royalty rates and secure guarantees of backlist promotion as a condition for obtaining her next guaranteed bestseller. Klebanoff got the client and replicated this strategy, client after client. His purchase of the Scott Meredith Literary Agency was similarly motivated by a desire to access the backlist. The “agent of record” for a deal continues to receive royalties as long as the book sells. Prior to his death, Scott Meredith was a controversial literary agent whose methods provoked the wrath of his enemies and whose advertising played aggressively on the dreams of desperate would-be authors. Founded in 1946, the agency charged prospective authors fees to critique their work and potential representation. This frowned-upon practice had spawned many best-selling authors and created a valuable backlist. Upon Meredith’s death, Klebanoff cut a deal with Meredith’s widow and left IMG the following day. He revamped the advertising and, according to “The Agent,” toned down certain aggressive (and delightfully clever) methods for finding new authors. During his ownership of the literary agency, Klebanoff flirted with numerous Internet ventures. An expert in book publishing contracts, he had studied the rights agreements and noted that prior to the early 1990s, authors had generally not transferred electronic rights to publishers. This left a space open for a new publisher to contact an author, purchase the electronic rights and publish e-books right under the publisher’s nose. Klebanoff knew that the major publishers would not counter by offering authors money for rights that the publishers assumed they already owned. He also was confident that even if they did, the publishers would not be competent to properly promote and exploit this backlist-oriented approach. On Feb. 21, 2001, RosettaBooks launched its e-books business with “The Confessions of Nat Turner” and “Sophie’s Choice” by William Styron; “Slaughterhouse-Five,” “Breakfast of Champions,” “The Sirens of Titan,” “Cat’s Cradle” and “Player Piano” by Kurt Vonnegut; and “Promised Land” by Robert B. Parker. RosettaBooks acquired the electronic rights from these famous authors for far less than Rosetta would have had to pay for a frontlist title or for print rights. The next day, Random House sued RosettaBooks and Klebanoff personally for copyright infringement. Random House failed to sue the authors. Since “The Agent” presents such strong arguments in favor of e-books in general and Klebanoff’s view that e-book publishing will explode, I took the liberty of checking out the e-book experience myself. A visit to www.rosettabooks.com showed an excellent selection of fine literature and popular fiction and non-fiction available in the e-book format, with authors such as Winston Churchill, Philip K. Dick and Virginia Woolf. “The Agent” in print costs $27.95, while a permanent e-book license costs $3.75. The e-book, which requires a free Adobe e-book reader download, permits Boolean searches, archiving and indexing notes, changing font for readability, and leaves room on those crowded home bookshelves. Klebanoff’s betting the farm that reading e-books is a practice that will explode in the near future, if innovative small companies like Rosetta are allowed to get out and create value for authors under the noses of the sleeping publishing giants. Raymond J. Dowd, of Dowd & Marotta, is a Manhattan trial attorney who litigates intellectual property disputes. He also is chairman of the media and entertainment law committee of the New York County Lawyers’ Association.

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