Authorial Misdemeanors

By Richard Curtis

From time to time an author will do something that causes me to scratch my head. I've compiled a list of these foibles and offer it here with a light heart. If you have perpetrated any of these transgressions I'll let you off this time without a fine, but don't let me see you in this courtroom again.

I must say right off the bat that among the things authors do that irk me, delivering manuscripts late is not one of them. Lateness is the medium in which agents live. We breathe late manuscripts and eat late checks and drink late contracts. And lateness in a creative person is certainly more understandable and forgivable than it is in a business organization. I have never known an author to be deliberately late with a book, but I have known many a publisher to be deliberately late with a check.

What kills me, however, is authors who don't tell me they're going to be late. Publishers schedule books many months in advance, and in most cases are able to pull one out of the schedule if given sufficient notice. In most cases, too, a publisher will grant the author a reasonable extension of delivery date. If, however, out of embarrassment or some other reason (such as a moonlighting gig the agent doesn't know about), an author doesn't level with his agent, he will not only get himself into trouble, but his agent as well. An agent who knows the truth can go to bat for his client, make excuses, concoct a fib. But if an agent sincerely assures an editor that a book will be turned in in June because that's what his client told him, when the client knew all the time that there wasn't a chance in hell that he could make the deadline, the agent's credibility will be damaged.

I make very few inflexible rules for my clients, but this is one of them: no matter how embarrassing your reasons may be (one author's dog actually did eat his manuscript), I insist that you tell me the truth so that I can make proper excuses for you. (I, of course, have never lied on behalf of a client. What kind of agent would I be if I lied on behalf of a client?)

Lying to your agent is a mortal sin, but authors commit many venial ones as well, and oddly enough, it is the latter variety that drives me absolutely up the wall.

Take authors who misspell "Foreword," for instance. I strongly feel that anybody who turns in a manuscript containing a "Forward" deserves automatic shredding of his manuscript plus the first three fingers of his right hand. You would think I would not have to explain to professionals who make their livings with words that a foreword is a fore-word, a word that comes before the main text. But as the Forward-to-Foreword ratio on manuscripts submitted to my agency is about one out of three, I can see that the correct spelling cannot be stressed enough. It should be enough to remind you that "Foreword" is usually the very first word one's eyes fall upon when opening a manuscript. (I hesitate, however, to criticize writers for not knowing the difference between a foreword, a preface, and an introduction, since I don't understand it either.)

The Forward-Foreword offense is part of a larger conspiracy to send agents to early graves. I am referring to authors who don't review their manuscripts before submitting them. An occasional, random typo is one thing, but when I realize that the author never bothered to reread his manuscript, have it vetted by a good speller, or run it through the spell-checker on his computer, a murderous rage comes over me and I am compelled to steal into the night to overturn garbage cans and scratch automobile fenders with my ring. Don't authors understand (I growl at alley cats as I kick them) that today's literary marketplace is so intensely competitive that a poorly spelled manuscript can lose somebody a sale?

A subspecies of the above-mentioned type misspells critical words and names, and misspells them consistently, focusing a glaring light on his or her own carelessness. I remember a Biblical novel in which the word "Pharaoh'' was misspelled "Pharoah" throughout, and in a book that long, that's a lot of Pharoahs. I have often wondered why, if the word is pronounced fayro, lexicographers have chosen to place the a before the o. In fact, what is an a doing in the second syllable at all? Such speculations do not mitigate one's intense annoyance at having to correct such errors over and over again in saga-length manuscripts.

Speaking of repetitious errors, I'm reminded of those authors who print the title of their book as a header on every page of manuscript. I don't know where this quaint custom arose. I suppose it has its origins in the paranoiac fantasy that part of a manuscript will inadvertently be separated from the rest in a publisher's office.

Against this remote possibility must be weighed the not-so-remote one that the title you print on every page of your manuscript will be a lousy one. Like many publishing people I am a fanatical believer in the importance of titles: a good or bad one can significantly affect the fate of a book. All too often I'll get a good book with a bad title, and after kicking alternate titles around the author and I will agree on a new one. I'll then prepare a new title page only to discover that the discarded title appears on every page of the manuscript. Now what? I must now either go out with a badly titled book or have the entire manuscript reprinted just to knock the offending title off every page. Luckily, the advent of word processing makes it easier to run off modified manuscripts. Still, do us both a favor and leave the title off the header of every page.

Nowadays manuscripts are submitted as email attachments. But many agents still prefer to read submissions in printed form. The peeve potential here is very high. On occasion an author will send me a manuscript ring-bound like a scientist's notebook. I ask myself what terrible thing I did to this person that he should avenge himself on me so cruelly. Am I supposed to read his manuscript standing up at a lectern, or remove the pages from the binding rings knowing that I will have to reassemble it when I am finished?

I think it's time that writers understood something about literary agents: their standard reading posture is supine, head elevated sufficiently to glance at a baseball game or sitcom on television. Now that I've revealed this tightly guarded secret, perhaps you'll be more considerate and submit your manuscript unbound. And is it too much to ask while I'm at it that it be double spaced in 12-point font and printed on one side of the page only?

And when you do post it, may I ask you not to have it bound or specially boxed or wrapped? Just a loose manuscript in a typing paper box wrapped and taped securely enough to get safely through the postal system. There seems to be a law of nature that the quality of a manuscript declines in inverse proportion to the elaborateness of its package. When I receive a manuscript bound by brass screws with a plastic embossed cover, lovingly wrapped in chamois cloth, set in a velvet-lined cedar box, shrink-wrapped, packed in turn in a fireproof strongbox secured with iron bands, I am prepared to stake my career on the likelihood that this book is one colossal dud. And in all likelihood it will be sent via Fedex or courier with the expectation of an overnight response.

There is a particularly lukewarm place in my heart for foreign authors who are obliged to use typing paper of different dimensions - approximately ½ inch too long and ¼ inch too narrow - from the standard American 8½ by 11 inches. I realize how chauvinistic it must sound to deplore the paper that was probably good enough for Thomas Mann, Jean-Paul Sartre, and Graham Greene, but because agents usually place manuscripts in submission boxes to protect them and present them attractively, it drives us crazy to get a misshapen manuscript from the Continent requiring Procrustean measures to package the submission.

Authors who submit their only copy of a manuscript are, to say the least, an intense source of curiosity to me. They brazenly challenge the immutable law guaranteeing that that manuscript will get lost in the mails. The advent of computer document management and cheap photocopy services has stimulated a rise in lost manuscripts, for authors who used to type an original and carbon now type an original only and bring it to a photocopy shop, where another immutable law causes it to get mixed up with somebody's master's thesis. Again, the development of computers will eventually make the question of lost manuscripts academic, but computers can crash. So keeping a hard copy is definitely a good idea.

Then there are the authors who administer tests to their agents. Some try a cute trick of turning one page in their manuscript upside down. If the agent returns the manuscript with that one page still upside down, it proves he didn't read the manuscript page for page. There are authors who quiz their agents about specific scenes and characters. A typical dialogue might sound like this:
AUTHOR: Did you like my book?
AGENT: Oh, yes, loved it, loved it.
AUTHOR: Great. What did you think of my character Pflonk?
AGENT: Pflonk? Terrific character. Nicely developed.
AUTHOR: Hah! Gotcha! There was no such character in my book!

I assure you that when it comes to an important book your agent reads your manuscript carefully. With so much riding on it, he has to. But most agents I know don't have time to read their clients' work page for page, nor do they need to in order to get a sense of its quality, organization, and pace. In fact, they don't even need to in order to sell it. With certain kinds of material, such as books in a series, a light once-over is enough to satisfy your agent that all is in order and the work follows the original outline.

Plainly, the evil that authors do may be categorized as Class B Misdemeanors, punishable by groans, rolling eyes, sighs of frustration, and indulgent smiles. I would like to think that you are as tolerant of your agent's foibles. Agents do have them. (I know this only from talking to authors). There is one extremely successful agent who likes to boast he's never read anything he's sold. And there's another who, every time he makes a big deal for a client, gloats, "That will pay for a new set of radials for my sports car," or, "Now I can put that new wing on my house."
I consider myself truly fortunate in not being possessed of any personality traits that irritate others. Well, maybe one or two. All right, maybe a few more than that. Okay, okay, so I'm riddled with them. But at least I know how to spell "Foreword."

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.
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Moral Rights: Love Me, Love My Book

By Richard Curtis

Today was one of the worst days of your writing career.

It began when the postman brought you an advance copy of your historical saga, an original paperback, and you started thumbing through it. To your dismay you discovered that over ten thousand words of text had been cut from your manuscript, and a number of sexy scenes modified if not downright bowdlerized. Your contract did give your publisher the right to make editorial changes, but you never dreamed they would go so far. You called your editor and were told the cuts were necessitated by pricing considerations, and the desexing had been performed to make the book more acceptable in certain markets.

No sooner had you recovered from that shock than you received a second in the form of galleys of a novel messengered to you by a packager you work for. The packager had engaged you as a writer-for-hire to write one of a series of novels it had created. Although the series is copyrighted in the packager's name, you'd insisted that your byline appear on your book. At the time you negotiated the contract, you thought that was a smart move. But when you started to review the galleys, you immediately realized that every sentence of your original text had been rewritten by the packager. Outraged, you phoned your packager, who informed you that as his company owns the copyright to your book, he could do anything he wanted to it.

As if these two horror stories weren't bad enough, you suffered the final insult when you attended a screening of the film made from a spy thriller you'd written several years earlier. You were, of course, not so naive as to believe the adaptation would be absolutely faithful to your story, but you were scarcely prepared for the monstrous perversion portrayed on the big screen that evening. Except for the basic premise, the producer had thrown out every idea, every tasteful scene, every line of dialogue in your book. Surrounded by friends and family, you slunk out of the screening room humiliated to the very core of your being. In a black rage, you phoned your lawyer. "Do you handle criminal cases?" you asked him.

"Some. Why?"

"Because I'm about to commit murder." You proceeded to describe in exquisitely graphic detail the butchery that had been perpetrated on your work.

"Okay," he finally said when you let him get a word in edgewise, "here's what I suggest you do. Go straight home, do not attempt to murder anybody. Take out the contracts on your books and examine them carefully. Then call me again and I'll tell you what I'm looking for. You may have a case on a variety of grounds, but I'd be especially interested in any references to something called 'Droit Moral'."

"Dwah wha'?"

"Droit moral. 'Moral right.' Bring your contracts to my office tomorrow. And don't forget your checkbook."

Tempting though it was to go on a killing spree, you took your attorney's advice and returned home, and after belting down a brandy straight you hauled out your contracts and pored over them, looking in particular for the phrase you had heard for the first time, droit moral. No luck in the contract for that historical, nor any in the one with your packager. But in the movie contract you struck pay dirt. Or so you thought at first. But as your finger traced the language your heart sank. You picked up the phone.

"No references to droit moral in my book contracts," you sighed to your attorney.

"I didn't expect any. And in the movie contract, you waived your moral right, yes?"

"Yes. So I guess that's the end of that."

"Not long ago I would have said yes," your attorney replies. "But there are signs that offer some encouragement. Whether or not the phrase appears in your contract, indeed even if you've waived your so-called moral rights, it may be that they are still recognized and enforced by the courts. I'll do a little research and have some thoughts for you when we meet tomorrow."

Your attorney is right, at least about the signs of change in the law, for an important event occurred on March 1, 1989, and it may presage some profound changes in the relationship between the buyers and sellers of literary and artistic works. On that date, the United States became a signatory of the Berne Convention, an international copyright treaty created to protect copyrighted works in the numerous countries that have signed it.

Included in the treaty is a provision giving artists the right to protect the integrity of their work even after it has been sold. That right is considered "perpetual, inalienable, and cannot be waived."

If your attorney didn't have time to research the Berne Convention and droit moral in great depth before you paid him a visit, he might have gotten an excellent summary out of The Rights of Authors, Artists and Other Creative People: The Basic ACLU Guide to Author and Artist Rights, an American Civil Liberties Union handbook written by Kenneth P. Norwick and Jerry Simon Chasen, and published in paperback by Southern Illinois University Press. He might even, as I did, phone Ken Norwick for a briefing. Mr. Norwick is legal counsel to the Association of Authors' Representatives.

Mr. Norwick and his book point out that moral rights are distinguished from the property rights - that is, the rights that you have under the copyright law - that you convey when you license your written work to publishers and producers. Droit moral is described as "non-property attributes of an intellectual and moral character which exist between a literary or artistic work and its author's personality; it is intended to protect his personality as well as his work."
In other words, the distortion or mutilation of a work of art or literature could be considered a slur on the character of that work's creator. If you are wondering whether Shootout at the Bensonhurst Riding Stables or Book #16 in the Galactic Humungoid science fiction series may accurately be defined as literature, you will be comforted to know that the law offers lots of leeway on that score.
Droit moral embraces three major components: the right of integrity of the work, the right of paternity, and the right of divulgation.

The right of integrity posits that a work is a direct expression of the creator's personality, and any harm done to that work reflects on the creator's identity itself. Unauthorized condensation of a literary work, expurgation of supposedly offensive passages, or rewriting of the text without permission are acts that might make it appear the author deliberatly designed the work that way, and subject him to unfounded criticism by his peers or condemnation by posterity. Even if critics feel the changes improve the work, those alterations misrepresent the author's original vision and are therefore a blot on his honor.

The right of paternity irrevocably associates the author's or artist's name with his work (or hers, though it's still called the right of paternity). Your byline cannot be taken off (or put on) without your express permission.

Finally, the right of divulgation gives artists and writers the right to decide at what point their work is finished and ready for exhibition or publication.

While principles of droit moral are widely accepted beyond our shores, they have generally been rejected, or at least not recognized, by the U.S. courts. Thus, because these rights are not usually accepted by the legal system, if you want the protection that they offer you must negotiate for them in your contracts. If, for instance, you wanted to reserve the option to withdraw your byline from a book, you would have to state that explicitly in your book contract.

There have been some promising legal developments in this area of the law in the U.S. in recent years. In 1983, New York State passed an Artists' Authorship Rights Act that, among other things, prohibited exhibition or publication of a work of fine art "in an altered, defaced, mutilated form" without the artist's consent. The law also gave artists the right to claim or disclaim authorship of their works of fine art. The artist who believes his rights under this law have been violated can sue for damages. Similar moral rights legislation has been enacted in California, too.
The New York State act is limited to "works of fine art," and there's the rub. As Ellen M. Kozak, a lawyer and author of Every Writer's Practical Guide to Copyright Law, quipped in a piece on the Berne Convention in the Science Fiction Writers of America Bulletin, "Writers need not apply." But that may no longer be the case if the droit moral provisions of Berne are liberally interpreted in future court challenges.

You can imagine that not everybody greeted the ratification of Berne by the United States with banquets and fireworks. In fact, many publishers and movie and television producers lobbied passionately against it, even though some aspects of it protected their own rights. This was because they feared that the recognition of moral rights in the Berne Convention would threaten the traditional ways in which they have been producing and publishing their works. In response to those fears, Congress declared that Berne neither expands nor limits authors' or artists' rights to object to unauthorized modification of their work. The current thinking, then, is that you must seek remedies in other legal areas.

This bleak view, however, may not necessarily prevail in the days and years ahead. In the first place, many courts have recognized rights remarkably similar to "moral rights" under the guise of traditional trademark and copyright (and even in some cases libel) law. In what may be the most important example, a court found that a television network's substantial, unauthorized editing for television of a Monty Python movie violated the group's rights under American trademark law. Second, many people believe that America's entry into the Berne Convention should provide the impetus for greater recognition of moral rights in this country, and it has already encouraged a movement to lobby Congress to enact specific moral rights protection for authors and artists.

Somewhere out there are authors who will one day suffer the indignities hypothesized at the beginning of this article, and they will seek the protection of the courts using the droit moral principles recognized in the Berne Convention. I'll be sitting in the gallery when it happens.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.
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Urgent for Writers: Backspace Admins Publicly Admit Pitching at Backspace is a Waste of Time!

By Michael Neff

Yes, we're not kidding!

Karen Dionne and Chris Graham, Backspace Conference Administrators, have publicly stated at Publisher's Marketplace, on their blog, that pitching agents at their conference is a waste of time.

From the blog post, February 3, 09, entitled, "No pitch sessions at the Backspace conference - here's why":

From talking to authors and agents, and from observing how pitch sessions are handled at other writers conferences, Backspace believes that formal pitch sessions are not a productive way for authors and agents to connect. Then the frank statement from Scott Hoffman of Folio Literary about pitching at large writer conferences (that everyone in the business already knows except for aspiring authors):
I don’t like formal author-agent pitch sessions for a couple of reasons. First, most conferences schedule too many of them. If you’re one of the agent’s first pitches you might be in good shape. But if you’re the agent’s 30th pitch in two days, honestly, you would have been better off sending a query letter. As to pitching editors directly, unless you’re writing romance or science fiction, they’re probably just going to tell you to get an agent anyway.

Here’s an inside tip on how agents deal with conferences. Most agents are too polite to say “no” to your face. You can pitch them a book that they KNOW—100% KNOW -- they would never in a million years sign up. But rather than deal with the pressure of rejecting you to your face, they’ll say something like “Well, I don’t know. For something like this it’s all in the writing.” They’ll ask you to mail them the first three chapters and then they’ll glance at them for about 5 seconds and then pass, politely, with their standard rejection letter.

As I wipe the undeserved smile from my face, I'm glad this kind of truth is finally out in the open. I've maintained that pitching at the vast majority of large conferences is a waste of time. I only disagree with Scott in relation to pitching editors. The Algonkian NYC Pitch and Shop has proven many times that pitching to editors not only yields productive results, but is a means of learning something about the book biz, and the novel as well.

Regardless, I've been to many large writer conference events, talked to lots of agents, and heard the horror stories from writers. But the problem lies not with the simple act of face to face time, but with the sheer volume of the voracious writers piling into lines, the general attitude on the part of the agents when interacting with these writers, and the fact that the writers are not trained how to pitch (not to mention the conferences do not screen).

There ARE good writers in the group, but they get ignored, insulted, dismissed, just like everyone else. Agents are far less willing to suspend disbelief than they are under other circumstances. Most of the agents try to be as patient as possible as they inwardly groan, and others are outright mean.

In other words, almost all the time, everyone loses.

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Let's Run it Past Legal

By Richard Curtis

Having maligned the legal profession last week, I hope to return to grace with some high praise for one branch of the species.

It may be hyperbolic to refer to the legal counsels of publishing companies as "grey eminences," a term one usually assigns to the shadowy power brokers who manipulate the controls of vast corporate or political networks. But it would be no exaggeration to state that tremendous influence resides in the hands of the attorneys who counsel publishing executives on the legal aspects of their companies' operations. Few significant corporate decisions are made without clearance by a publisher's lawyers, and no book is published that has not somehow been affected by procedures originating in the firm's legal department. To the degree that the men and women of those departments are seldom colorful, their eminence may indeed be depicted as grey. But it must never be underestimated, because the power they wield over the fate of your book is both total and final. However headstrong the chief operating officer of a publishing company may be, he or she will override a house counsel's advice at the utmost peril.

Owing to the enormous number of legal affairs confronting every publisher, attorneys must be engaged to advise the firms' executives. Small houses with little money to spare for lawyers may hire a small firm or sole practitioner on an hourly or flat-fee basis to perform specific tasks such as drawing up incorporation papers, writing a lawyer-letter, or rendering an opinion about a specific situation. Larger publishers may engage an outside law firm for an annual retainer, which is adjusted if the time spent by the lawyers exceeds a prearranged ceiling. Fees and expenses of litigation are always a matter of separate arrangement, as they absorb extraordinary amounts of billable time.

The largest publishing companies maintain a salaried in-house legal counsel or staff to advise them on the countless matters arising out of the daily operation of the company. Or they may share the legal staff of the conglomerate of which the publisher is one component. In any event, some of the matters dealt with by the in-house counsel may be as minute as a single, but potentially actionable, provocative word in a manuscript; other matters may be as immense and complex as a corporate merger or a major litigation. The publisher's legal department is also in charge of contracts: not just publishing contracts, but those pertaining to everything from the office lease to a bank loan to a distribution deal to the acquisition of another publisher. If there is a notable increase in the time it takes for your book contract to be processed, as authors commonly assert these days, it may be attributable to the workload of the lawyer at the top.

Although routine contracts or deals for sums below a certain figure may never end up on their desks, most of them run very tight ships and insist on reviewing everything contractual that is generated in their bailiwicks. And there is scarcely a corner of the publishing company that does not in some fashion fall in a general counsel's bailiwick. Indeed, his or her office is sometimes a convenient dumping ground for many of those corporate problems that executives cannot pigeonhole and thus cannot deal with. "You should see some of the stuff I have to handle," one attorney told me. But he handles it decisively. "A general counsel is often a general troubleshooter for the corporation, and we solve lots of problems that are very far afield from our job description. You name it, they'll run it past Legal."

Here are some items that might appear on a typical day's agenda of the house counsel for a large publisher.

* The directors are concerned that the company is vulnerable to a hostile takeover. There is a great deal of stock on the market and its price is temptingly low. A raider might be interested in adding a publishing jewel to his conglomerate crown. A decision must be reached about buying back the stock and funding the maneuver.

* A news magazine has managed to get hold of a set of proofs of a major autobiography that the publisher is bringing out six months from now. Under the guise of a "news story" the magazine has summarized the juiciest passages of the book. The potential for selling first serial rights has been damaged if not ruined. The general counsel is contemplating litigation and is reviewing the legal precedents.

* This publisher is also at the other end of a possible lawsuit. An author has threatened litigation because, he claims, the publisher rejected his book in bad faith. He'd been hired by the publisher to write a biography of a glamorous starlet. But just as he turned in the manuscript it was learned that she'd been arrested for cocaine possession. The publisher rejected the book on the grounds that it was simply a poor job and wants back the large advance paid on signing the contract. The author not only doesn't want to repay the initial advance, but wants to compel the publisher to pay the money due on acceptance, too.

* A delegation of literary agents is scheduled for a meeting to discuss improvements in the publisher's royalty reporting system. The firm's management is loath to spend the large sum of money it will cost to revamp the computerized royalty statements for thousands of books. At the same time, management is anxious not to give offense to the agents and to the large number of authors they collectively represent. The house counsel must determine a negotiating position before going into that meeting.

There are several high stacks of paper on his desk and coffee table requiring attention. One pile contains routine contracts and contract requisitions calling for his signature or initials. Another contains affidavits, depositions, briefs, and other court papers for him to review. Still another has corporate minutes and other company business for his comments, approval, or other action. And in yet another are some items demanding urgent attention: a subpoena to which a response must be made by Friday; a summary of the terms sought by an agent for a major book on which there is an auction closing at five this afternoon; and a memo from an editor containing the distressing news that a reader has pointed out a dozen passages in a book the company recently published that seem to have been lifted almost verbatim from a book published ten years ago.

* A staff attorney has completed a line-by-line reading of a recently delivered manuscript, a biography of the late great Senator Clemenceau Osterdonk. Osterdonk was allegedly a pederast, a sadomasochist, a drunk, a cokehead, an arsonist, an influence peddler, an ax murderer, and an embezzler with dandruff, halitosis, and athlete's foot - your typical politician, in other words. Although the laws of the land plainly state that one cannot libel a dead person, the senator's estate and its Rambo-type lawyer are ferociously protective of the hallowed reputation of their late lamented, and have threatened to nuke our publisher if it prints Word One of this scurrilous hatchet job. The book will, the lawyer contends, irreparably damage the family's business interests which are dependent on maintaining an image of the deceased as the closest thing to an angel that is to be found in this imperfect world.

The book was impeccably researched by a journalist of unassailable pedigree, then reviewed by his own attorney, who happens to be the world's authority on libel. Our publisher is not afraid to publish this insightful and entertaining book, but neither does it want to provoke a lawsuit it cannot successfully defend. So the publisher's counsel has a ton of questions, modifications, and requests for documentation to take up with the author, and on the corner of his desk rests this thousand page manuscript to which yellow Post-its are affixed. On each of these mini-memos a question has been raised, and there are so many sticking out of the manuscript it looks like a forsythia in bloom. The author must either alter the text to satisfy the attorney's requests, answer his questions in a point-by-point letter of response, or furnish sufficient documentation to demonstrate beyond reasonable doubt that the items in question rest upon a concrete foundation of fact. Even after the author has complied with all of the lawyer's requests, our house counsel will comb the manuscript again and pick a few dozen more nits before declaring it judgment-proof and fit for public consumption.

It's worthwhile for us to tarry over this function of our in-house lawyer. Every "flag" fluttering along the margins of that manuscript represents a fear fluttering in the heart of any responsible attorney. If the threatened lawsuit does materialize, it might take only one poor choice of phrase, one unsupported allegation, one overenthusiastic innuendo, one unattributable quotation to pave the way for a judgment against the publisher. Old Rambo will be poised to pounce with claws and fangs bared, you may be certain. And not just Rambo, but the attorneys for anybody else mentioned in the book who may feel a victim of defamation, libel, or invasion of privacy.

The fact that the publisher holds a substantial insurance policy indemnifying it against adverse judgments in those areas is of no comfort to our attorney. In the first place, the policy calls for a sizable deductible, somewhere between $100,000 and $500,000, an unrecoverable expense that will make a painful dent in the publisher's profits. For another thing, if the insurance company believes that the publisher was negligent in its responsibility for purging the manuscript of assailable allegations, it may give the company a very hard time and may even cancel its insurance. "No publisher can afford to take that kind of hit," I was told by another attorney. Nor is it of great comfort that the publisher's contract with the author entitles it to recover some or all of its litigation costs and damages from authors' royalties. Rarely is there sufficient royalty revenue to balance the cost of an adverse judgment.

Our house counsel will therefore be forgiven if the queries he has raised in his review of the Osterdonk biography seem picayune. Let's look over his shoulder at a few of them:

Page 15. How do we know O. abused his half-sister when she was four months old? And what, precisely, do you mean by "abused"?
Page 26. Can you document that Uncle Floristan turned O. on to the kicks of Blue Nun administered intravenously?
Page 36. Can you support the innuendo that O.'s German shepherd was "a lot more than his best friend"?
Page 75. Were there any witnesses to O.'s "uncontrollable urge" to flagellate the family chauffeur?
Page 106. Re your statement that O. "bribed his way in one door of the Senate and bribed his way out the other door." Was anyone actually standing at the doors taking bribes? Names?
Page 140. Any documentation to verify that O. and Hermann Goering were "considerably more than nodding acquaintances"?
Page 141. Same question for Joseph Stalin.
Page 142. Same question for Al Capone.
Page 155. For my own enlightenment, can you explicitly describe the sexual contortion alluded to in the second paragraph?
Page 202. Did anyone actually observe O. picking his nose at the luncheon with President Eisenhower?
Page 261. Was O. actually divorced when he started his affair with Mister Ed?

Many such queries are exasperating for an author, particularly in cases where "everybody knows" that the subject of his biography slept with this or that person for years or beat his wife on a regular basis. If all you have to go by is a photo in a movie magazine of the subject escorting his alleged mistress to the Academy Awards ceremonies, however, or if not a single soul can be located who actually witnessed the subject striking his wife (or is willing to testify to that effect), you may be required by a prudent lawyer to fudge your language or throw the dubious passages out entirely.

Your publisher's general counsel does have a degree of discretion about some of the statements made in your book. If, for instance, reference to an affair has been made in half a dozen earlier biographies and the persons alluded to have never contested the references, the attorney may see fit to let your allegation pass, even though it does not rest on hard primary documentation. If he is a literary as well as a legal type, he may be reluctant to water a book down excessively because an overly "lawyered" book festooned with "allegeds" can be a ponderous bore. His recommendations may be challenged by publishing executives who feel he is being excessively cautious.

You the author have few options if your publisher insists on legal changes. Most publishing contracts permit a publisher to declare a manuscript unacceptable if the author fails to comply with requests to modify a manuscript to satisfy legal objections. In such cases the author must refund the advance paid on signing the contract, exactly as if he had turned in a book that was editorially unacceptable. The author may then seek a publisher that doesn't have quite so many compunctions.

I would think twice about doing that, though. For one thing, the same objections raised by the original publisher will undoubtedly be raised by others. And, more importantly, your publisher's attorney seeks to protect you as well as his company. You may find the legal vetting of your book upsetting at first, but after you cool down you will probably be grateful to have this eagle-eyed grey eminence in your corner.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.
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