GRAY EMINENCES

The following headaches are listed on the calendar of a publishing executive. What is that person’s title?

· A magazine has managed to get hold of a set of proofs of a true crime book that the publisher is bringing out six months from now. Under the guise of a “news story” the magazine has published the juiciest passages of the book, seriously damaging its profit potential. The company is contemplating litigation.

· A writer hired by the publisher to ghost-write the memoir of a glamorous movie star is suing, claiming the publisher rejected the book in bad faith. It happens that just as it was going into production, the actor was arrested performing an unspeakable act at the Bronx Zoo. The publisher rejected the book on the grounds that it was simply a poor job and refuses to pay the balance of the advance to the ghost writer.

· A delegation of literary agents is scheduled for a meeting to discuss improvements in the publisher’s royalty reporting system. The publisher has to determine a negotiating position before going into that meeting.

Of course you have correctly guessed that the executive upon whom these problems have been dumped is the publisher’s legal counsel.

Owing to the enormous number of legal affairs confronting every publisher, attorneys must be available 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 basis to perform specific tasks such as drawing up incorporation papers, writing lawyer-letters or rendering an opinion concerning the company’s policy.

The largest publishing companies may engage an outside law firm for an annual retainer, but may also maintain a salaried in-house legal counsel or staff to advise them on the countless matters arising out of the operation of the company. Some issues they deal with may be as minute as a single but potentially actionable word in a manuscript, such as describing an alleged criminal as a criminal without the qualifying adjective; 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 bank loans to the acquisition of another publisher. As for publishing contracts, he or she will discuss and debate every provision with the company’s management and pore over the boilerplate word by word, for contracts are a reflection of company philosophy and policy. Fees and expenses of litigation are always a matter of separate arrangement, as they absorb extraordinary amounts of billable time.

It may be hyperbolic to refer to these attorneys as “gray 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 their hands. Few significant corporate decisions are made without their approval. Though they are seldom cited in bold print when exciting deals are announced, their eminence must never be underestimated, because the power they wield over the fate of every book is both total and final. However headstrong the chief operating officer of a publishing company may be, he or she will almost never override a house counsel’s advice.

Although routine deals for sums below a certain figure may never end up on their desks, some house attorneys insist on reviewing every legal item generated in their bailiwicks. Indeed, their office is sometimes a convenient dumping ground for many of those corporate problems that executives cannot pigeonhole. “You should see some of the stuff I have to handle,” one attorney told me. ”You name it, everyone says, ‘Let’s run it past Legal!’”

In addition to the high stacks of contract requisitions piled on their desks, there are affidavits, depositions, briefs, and other court papers to review. On the coffee table are corporate minutes and other company business awaiting comments. On the window sill are 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 with an auction closing tomorrow; 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 verbatim from someone else’s book.

Let’s focus on just one sample item.

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 coke-head, an arsonist, a stock manipulator, a stalker, an influence peddler, an ax murderer, and an embezzler with dandruff, bad breath 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 patriarch and have threatened to nuke our publisher if they print Word One of this scurrilous hatchet job. The book will, Rambo contends, irreparably damage the family’s business interests which are dependent on maintaining an image of the deceased as the closest thing to a saint 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. So Jonathan Righteous, the publisher’s chief counsel, has a ton of questions, modifications, and requests for documentation to take up with the writer, 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 unattributed 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 attorney Righteous. 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 to purge the manuscript of assailable allegations, it may give the company a very hard time, may even cancel its insurance policy. No publisher can afford to take that kind of hit. Nor is it of great comfort that the publisher’s contract with the author entitles it to recover from authors’ royalties some or all of its litigation costs and damages. Rarely is there sufficient royalty revenue to balance the cost of an adverse judgment.

Righteous 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 Osterdonk nailed his rival’s desk shut before a filibuster? Witnesses?

Page 26. Can you document that Uncle Florestan turned O on to 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.” 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. Did anyone actually observe O. scratching his genitals at the luncheon with Nancy Reagan?

Page 202. For my own enlightenment, can you explicitly describe the sexual contortion alluded to in the second paragraph?

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 pocketed bribes 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 Legal is a literary as well as a legal type, they may be reluctant to water a book down excessively because an overly “lawyered” book can be a saccharine bore. Legal’s recommendations may be challenged by publishing executives who feel he or she 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 may not be entitled to the acceptance installment of the advance, exactly as if they had turned in a book that was editorially unacceptable.

The author may then seek a publisher that doesn’t have quite so many compunctions, but 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 the 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 gray eminence on your side.

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This is a revised version of an article originally published in Locus Magazine.

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Richard Curtis’s latest book, Digital Inc., Inside The Transformation of Publishing from Print to E-Books, is now on sale.