The Case of William Safire

Acceptability is in the Eye of the Beholder

During the summer of his first year at Harvard Law School, Arthur Klebanoff worked at a large venerable law firm in New York City. He had already proven himself a maverick at the Harvard Law Review by resigning 12 months into his two-year term. (The articles were deadly long and lacked impact, compared to, say, the Louis Brandeis five-pager on privacy years before.). He knew that an institutional career was not for him. Upon graduation in 1973, he joined the more entrepreneurial law firm of Mort Janklow and Jerry Traum as the fourth lawyer. He had no idea that he was stepping into a career in publishing.
Within days of his start, Janklow’s close friend and fellow Syracuse University alum, William Safire, asked Janklow to sell his memoir of experiences as President Richard Nixon’s senior speechwriter. Safire was known for such lines as “pusillanimous pussyfooters” and “nattering nabobs of negativism.” Safire had just left the West Wing after Nixon’s landslide reelection in 1972 and started as columnist for the New York Times.
Presidential memoirs and insider accounts of the White House were a serious market. Author representatives typically submitted their clients’ book proposals to publishers with confidentiality assumed. Instead, Janklow invited publishers to our offices for confidential readings. The tactic heightened the perceived value of the project, Safire’s first book. William Morrow offered a $250,000 advance (about $1,250,000 in today’s dollars), a high bid for the time and certainly for a first book. Morrow justified the price because of its very successful publication of Harry S. Truman, Margaret Truman’s first book.

The Acceptability Clause

Morrow loved Safire’s manuscript in development. Then Watergate intervened, culminating in Nixon’s resignation in August 1974. Suddenly, a positive book about the former most powerful man on the planet no longer seemed attractive at $250,000, and so Morrow rejected the final manuscript. All publishing contracts contain a clause to the effect that a publisher must deem a manuscript “acceptable in form and content” prior to publication. Such a rejection usually requires the author to repay fully any advance received. For decades, publishers interpreted the clause to mean that they can reject projects for any reason at all. Other contract clauses addressed late delivery, excessive length, lack of proper permissions, plagiarism, libel or invasion of privacy. Bill Safire’s manuscript presented none of these issues.
Authors rarely fought publisher rejections; lawsuits only publicized the publisher’s point of view that the author’s work was “unacceptable” and that the author was litigious. A public fight was not good for the work’s resale value or for the author’s reputation. This was less a problem for someone with a regular soap box on the pages of the New York Times.
Safire pursued an arbitration against Morrow—the contract mandated arbitration over litigation—with two primary arguments: that the manuscript was excellent by any objective standard (Theodore S. White, veteran author of the Making of the Presidents books and Safire’s friend, offered to testify), and that Morrow’s rejection was financially rather than editorially motivated.
The arbitrators reviewed the case and announced that they needed neither to read the manuscript nor to hear from expert witness White. They concluded that Morrow could reject the manuscript for any reason at all, but that Safire had done so much work as to deserve the money paid to date (about 1/3 of $250,000) and reclaim all rights to the book without further obligation to Morrow.
By ruling that the publisher could not recover the advance, the arbitrators had shifted a degree of power to the author. The resulting publicity portrayed us as the toughest representation in publishing. Subsequently, other literary agents began to negotiate variations and modifications of the acceptability clauses, setting objective editorial standards of acceptability (eg the manuscript is acceptable if it is similar in quality to the author’s proposed sample or to the author’s previously published work), limiting acceptability to editorial rather than marketing issues, and pre-setting economic solutions so that rejected author could retain some percentage of the advance or could repay it upon reselling the work to another publisher (called a “first proceeds” clause).

To Take the Advance or Not

Janklow ultimately resold the same Safire manuscript to Doubleday for a less risky $25,000. Doubleday published the work under the title Before the Fall to fine reviews. It earned back its advance but much less than $250,000. Morrow may have made the right commercial decision at the time, but certainly not the best practical one. Safire proceeded to write for decades in deals involving millions of dollars, publishing a series of successful novels, nonfiction titles, and books on language—all with Doubleday. Morrow’s business case in hindsight looked terrible as did its sensitivity to author relations.
Safire started referring his beltway friends to us as clients. Nixon’s senior aide John Ehrlichman contacted them when he was released from prison, and William Colby, when he left the CIA. Brothers Bernard and Marvin Kalb came to them with the first biography of former Secretary of State, Henry Kissinger. Both Kalbs worked as on-air correspondents for CBS and traveled frequently with Kissinger during the Nixon administration. They had secured a $25,000 advance from W.W. Norton.

‘Sometimes You Must Stand Up to the Publisher’

As their manuscript neared completion, the Kalbs started getting unenthusiastic signals from their publisher’s editorial staff. Norton found the text too critical of its subject. Unless the authors rewrote key passages, the publisher thought the book would anger Kissinger, and Norton would lose its chance of winning his memoirs, the uncommitted prize of trade publishing at the time.
Klebanoff recommended to the Kalbs that, rather than fighting Norton or publishing without fanfare, they repay their advance and authorize us to resell the book to a more enthusiastic house—namely, Little Brown for a very enthusiastic $250,000 advance. Little Brown accepted and published the manuscript as presented and earned back the advance from foreign rights sales alone. A review on the front page of the New York Times criticized the book as a flattering biography of Henry Kissinger. Little Brown signed Kissinger’s memoirs.

In 1994, H. R. Haldeman, Richard Nixon’s chief of staff who did jail time due to Watergate, died shortly after submitting The Haldeman Diaries. His publisher, G.P. Putnam’s, feared that no possible author tour would depreciate the value of the book and started backing away from the project. Klebanoff argued that Haldeman had planned to promote the Diaries as proof of his and Nixon’s honorable intentions. Why not use the Diaries to encourage a debate about Nixon and Haldeman’s performance in office? Haldeman’s death actually heightened the public’s interest in his story, the debate over the Diaries largely attacked Nixon and Haldeman and The Haldeman Diaries was a posthumous major bestseller.
Clearly, not even a dead author is grounds for rejecting a manuscript. The acceptability clause in a publishing contract requires very careful attention and is negotiable often to the crucial benefit of the author (or his heirs).
Key questions to ask:

  • What happens to the advance money if the publisher rejects the manuscript?
  • Can the author resell the book to another publisher without obligation to the initial publisher?
  • What is an objective standard of acceptability? Can we agree upon a standard?
  • Which market conditions beyond the author’s control—such as a competitive title or Watergate-like revelations—can we rule out, such that the author retains all money and rights, should the house choose not to publish?

Finally, and most importantly, sometimes you must stand up to the publisher no matter how large and better funded it happens to be.

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