Editors on Editing: What Writers Need to Know About What Editors Do (21 page)

Could I have done something more to make him understand? I don’t know, but it certainly has made me more cautious when I’m talking directly to authors about money and contractual matters. A lot of editors prefer dealing with authors who don’t have agents because they can usually buy more rights (world instead of U.S., sometimes movie rights, etc.) for the same advance, but I’m not one of them. No matter how bad an agent is (and there are plenty who are pretty incompetent), it’s better to negotiate with
them than to talk directly with an author about that most touchy of subjects—money. And, in a broader sense, the experience also brought home—in a particularly painful way—how crucial negotiation is and how important it is to achieve a clear and mutual agreement—one that both parties fully understand and will abide by.

This incident happened rather recently. However, I have been, in some capacity, working as a negotiator since the beginning of my career in publishing. After the literary agency I moved into sub rights, where I remained for ten years. Then I became a publisher/editor and started buying reprint rights and volume rights for hardcover publication. My history has given me a unique opportunity to see negotiations from a number of different perspectives.

There are lots of rules I’ll elaborate on as I continue, but there are two that are so basic and so important that I think they need to be said right away: (1) in a negotiation, either party has the right to ask for anything—just be aware that the other party has just as much of a right to say no; and (2) don’t presume anything—if it hasn’t been discussed and it’s not written down, it’s open to totally different interpretations by either side.

What is negotiation? It is the discussion that takes place between two parties—editor and agent, editor and author, editor and subsidiary rights director, or subsidiary rights director and any potential licensee—that will result in the drawing up of a contract for the purchase of some type of book rights. Usually, by the time the contract has been signed by both sides, there have been hours of discussion and often heated debates about the language in a particular clause that seems to have no relevance whatsoever for the moment, but that could be crucial four years down the line. I’ve been party to many such arguments and have enough experience to know why we are bothering; but I’ve seen enough instances where the future proved there was good cause to have spent that time working out the terms to our best advantage or, for the agent, to the author’s advantage. The unlikely and unforeseen do happen. If an agent decides that it’s not worth arguing about the translation split on his client’s book, he may live to regret it if, four years later, the client’s second book becomes a cult classic in Europe and all the foreign publishers are clamoring to buy the first one.

An effective negotiation requires that both parties understand each other’s objectives. The author/agent is usually looking for two major components: the best money combined with the best publishing commitment. The editor’s job is harder: she needs to achieve several goals: (1) making a deal that, when it’s finished, everyone is pleased with (very difficult to achieve); (2) making the most economical deal for her employer—the publisher; and (3) making a deal that will work financially and structurally for
the publishing company and in regard to her ongoing relationship with both the author and the agent.

Negotiating is a very personal thing. Everyone has his or her own style, and one hopes that it’s an effective one. I’m a pretty straightforward person, so my negotiating style tends to be that way as well. However, there are a few tricks of the trade that everyone can benefit from, regardless of how they go about their negotiations. One thing I’ve learned is always to leave ’em smiling. By that I mean that the other party should not feel humiliated, taken advantage of, or in any other way debased. This may sound a bit melodramatic, but there’s been many an evening after I’ve hung up the phone, having made a “great deal” (when I sold sub rights, that meant a lot of money; now it means buying a great book), when I have been so exhausted and unsettled by the person with whom I’ve been negotiating that I felt no pleasure in its conclusion.

How to avoid that? Well, you can’t control the behavior of the person with whom you’re negotiating, but you can make sure that he feels good about you by making sure you give something up to him in the course of the negotiation. For instance, when we’re buying rights for our paperback list, the lower the royalty we pay out, the more potential profit there is for us. So, we always offer as low a royalty as we can. However, we’re fully aware that 90 percent of the agents and hardcover publishers with whom we deal aren’t going to take the royalty structure we’d like to pay, so we build in room for movement on our side. The agent says, “We can’t accept that royalty.” And we, after waiting for an hour or so to make it clear that we haven’t given in without a fight, concede the point and give in. This isn’t lying or even manipulation. If you’re able to settle on the lower royalty, then you’ve done something good for the company. But you always know that you can concede a point to your adversary without damaging the deal from a business perspective.

There are any number of similar instances that can serve as facilitators in a negotiation. A thorough understanding of the parameters and any resulting flexibility or inflexibility they produce comes in handy for those points on which you cannot give in. There are any number of arcane clauses in any publisher’s boilerplate on which the legal department will prove immovable. I’m an employee, so my job is to stand firm. Sometimes I don’t agree with the terms of the clause, and frequently I don’t even understand them—warranties and indemnities are completely beyond my ken—but that doesn’t matter. It’s my job to stand by the company position, and stand by my employer I do, but I always try to see both sides in any negotiation. It’s possible that some people (particularly my boss) might find me a little too sympathetic to my opponent’s side; however, I believe the only way to be
an effective negotiator is to fully understand the other person’s position so that you can express sympathy and still say no.

That’s how you play softball. It’s easy because the object is to make your negotiating opposite feel good. But there’s another side to the art of negotiating. It’s a lot tougher and a lot scarier. It’s the publishing equivalent of hardball. Sometimes I’m good at it; more often I’m not. I don’t play chicken well and need to know that if I take a rigid position, I’ve got the support of my boss as well as the personal certainty that I can live with the consequences if I don’t prevail. The people who play this game best have a lot of guts. I’ve gone up against some real tough players, and although I don’t like their negotiating style, I have to admire their tenacity.

Several years ago, in the sub rights phase of my career, I was handling the paperback reprint auction for a “hot” book on which I had already accepted a floor. We were a little nervous about the auction because the floor was just high enough to be a deterrent to other bidders. So it was with much relief that I answered the phone that morning to discover that I did indeed have another bidder. Unfortunately, the first words out of her mouth cut my relief short. “Okay, here’s our offer, these terms are nonnegotiable, and if you don’t like them, then we’re withdrawing the offer.” Well, I didn’t like the terms. The payout was terrible and the royalties were so low that they should have been embarrassed to offer them. (A perfect example of someone who played hardball better than I. I could never have brought myself to offer royalties that low. She had no such reluctance.) Well, although she had enough
chutzpah
to make an offer with terrible terms, she really wasn’t such a good hardball player after all. She violated two big negotiating rules. First, don’t ever make a declarative statement that you don’t intend to stand by. This proved to be the case when, after thirty minutes of letting her wait to hear whether I was going to accept her offer (having already indicated my reluctance to do so), I called her back and told her to take her money elsewhere. Unless she improved its terms, I told her I wouldn’t accept her offer. She then broke a long-standing rule of mine, namely, always, no matter what, let some time go by before you respond to anything your opponent says. She immediately backed down and improved the royalties. That ended any advantage she could have had over me for the remainder of the auction. I had gotten her and gotten her good. I knew that we would never accept those first royalties and was prepared to walk away from their money. I also suspected that they were bluffing. The combination of standing fast and good old-fashioned intuition was a winning one for me.

You don’t often get to employ that kind of negotiating strategy. More frequent are those situations fraught with uncertainty and terror, in which
you feel that the wrong move on your part will result in losing the book (if you’re the buyer) or losing the sale (if you’re the seller). Acting on your trustworthy instinct, long experience, and, most important, knowledge of your opponent can make the difference between a successful negotiation and a disaster.

Negotiating does not always have to be a do-or-die struggle. The most fun I’ve had negotiating was when I sold book club rights. There being only two major clubs, you get to know the people you work with very well. One time I had submitted a brand-name author’s new book to the clubs. None of us thought the book was as good as his earlier ones, but his success with the clubs was phenomenal. I got a call from an editor who was working at one of the clubs, who told me that they didn’t think much of the book and weren’t sure they were going to make an offer. Knowing how difficult it would be for the club to face its membership without the newest by this important author, this is how I began (and ended) my negotiation: “Oh, come off it. You know you need this guy and his book. Just make me an offer and let’s get it over with!” Not exactly your standard (or subtly complex) negotiating technique, but it was the right one for the situation and the person I was dealing with. Keep in mind, this was someone I’d known for years, whom I liked and who liked me. Never underestimate what you can accomplish with someone with whom you have a good relationship. Publishing is particularly prone to the exploitation of friendships in negotiating, but from what I’ve observed, all businesses are similar in kind if not in degree.

In my dual role now as publisher and editor, I’ve found it harder to be as effective a negotiator as I think I was when I sold rights. I’m much better at coaching my staff in their negotiations than I am at conducting my own. Quite recently, a very successful and powerful agent sent us a manuscript by a relatively unknown author. She’d also sent the author’s first book, which had been very well received by critics and readers alike, and suggested that we buy rights to them both. Her submission came with many exhortations to act quickly and offer a sizable advance. Each time we hung back, she would remind us of all the other publishers who were dying to get their hands on this author. We decided to take that risk, suspecting that perhaps the agent’s door wasn’t being knocked on quite as hard and as often as she was suggesting. We stuck by our small, but not insulting, offer, and to no one’s surprise she accepted. As I said earlier, agents should ask for the world, but they can’t always expect to get it. It’s up to us to decide what we can afford to or want to give up, and to gauge the real market value of the property being offered.

My experience has been that selling paperback rights is a lot harder than buying paperback rights or buying volume rights from an agent. When I
sold rights, I was forever having to reiterate my position, coaxing and prodding, trying for money, making sure the other side understood me so that when they said fifty thousand dollars was their best offer, they understood that I was taking them at their word. Nothing annoyed me more then having someone phone me a few days later—after hearing I’d accepted a better offer from someone else—and tell me he would have paid me more. I won’t play those games and frankly didn’t believe most of them when they said it.

There’s one last—but hardly least—important rule in negotiating, and while it may seem quite obvious, I have seen many an editor brought down by ignoring it: Write down what is being said. I write down every single facet of my offer (including the time of each discussion) and the recipient’s response, and as the negotiation proceeds, I continue to take copious notes. Several years ago that rule rescued my staff member and me from a truly hideous dispute with a paperback reprinter who was talking to us about a lot of money. My staff person had always struck me as being a bit on the compulsive side. Coming from me, this means he really was compulsive. He didn’t just takes notes, he literally wrote down every word said by both parties when he was in the midst of a negotiation.

During the course of his conversations with the paperback editor there was what I will call a “misunderstanding.” However, it was reported back to the paperback editor’s boss, and it was not long before this very scary woman was on the phone shouting at me. She reported her editor’s version of the negotiation and I explained to her my colleague’s version. She called him a liar. Well, I took out his notebook where he had written down every last word of the conversation and read it to her. After five minutes, she calmed down, and after ten minutes, conceded the point. An extreme example on both sides, but the point is, his copious notes had saved us from a very tricky and possibly unpleasant situation. I’m not, by the way, a proponent of tape-recording phone conversations or any other kind of high-tech method of record keeping. I’m still old-fashioned enough to want to believe in the inherent honesty of the people with whom I negotiate—sometimes they just get confused.

Along with my notes, I also have our contract request form in front of me at the time I’m concluding negotiations. I make sure that every question on the form has been answered. That leaves little doubt that every aspect of the contract has been fully covered.

Negotiating isn’t easy. And, like so many other aspects of the publishing experience, it’s highly personal. That’s important to take into account when you find yourself preparing for a negotiation. Negotiating is a serious business and can be an expensive one. Always keep in mind that the end
result of your discussion will be that someone will be receiving a sum of money that will be your responsibility. If you think of it as money coming out of your personal bank account, you will prove to be an effective and astute negotiator: one who will have done what is best for your employer, your author—and your career.