David A. Kaplan has a 110,000-word manuscript rife with wild tales of millionaires scheming, whining and stabbing each other in the back, all in the name of America’s greediest pastime. The behind-the-scenes stories come from baseball’s last commissioner, Francis T. (Fay) Vincent Jr., and therein lies the problem: Mr. Kaplan, a senior writer at Newsweek , would love to show the nearly completed book to agents and publishers, but he can’t.
Mr. Vincent and his lawyers won’t let him.
The former commissioner, who was forced to resign in 1992 and never replaced, and Mr. Kaplan were supposed to be happy collaborators on a tell-all memoir of Mr. Vincent’s stormy tenure as baseball’s top man. Among the juicier bits were Mr. Vincent’s blunt assessments of such figures as George Steinbrenner (“rotten to the core” and “baseball’s worst recidivist”), USA Today publisher Al Neuharth (“one of George’s stooges in the press”), Pete Rose (“a deluded fool”) and Daily News columnist Mike Lupica (“always glib, rarely thoughtful”).
Instead of sharing these and other insights with the reading public, Mr. Vincent and Mr. Kaplan find each other on opposite sides of a bitter lawsuit. The collaborators turned antagonists have been put on notice that the trial could start at any moment in White Plains. At stake is ownership of the material the two men worked on before Mr. Vincent decided to pull out of the project, even though Mr. Vincent had signed a contract with Little, Brown and Company, and was given his share of a $300,000 advance. Mr. Kaplan, who asserted that he has invested 2,000 hours into the project, wants to use the material for what might become an unauthorized biography of the ex-commissioner. When Mr. Vincent threatened to bury Mr. Kaplan in litigation, Mr. Kaplan fired a pre-emptive strike. He sued Mr. Vincent in an attempt to establish clear ownership of copyright. During the time the collaborators worked on the project, their lawyers tried to put together a collaboration agreement, but the two men never signed one.
“I worked on this book because I thought it would be a productive, creative, fun enterprise,” Mr. Kaplan said. “Fay and I were friends. I thought working together could be a good experience. It didn’t turn out that way.”
The dispute also offers yet another insight into the publishing world’s obsession with celebrity books and its recent penchant for litigation. Celebrity books require collaboration. But when a collaboration breaks down, who “owns” material covered by a joint copyright? According to the Copyright Act of 1988, a transfer of copyright ownership is not valid unless an agreement is signed between the collaborators. Celebrities beware: If you don’t have a written agreement with your ghostwriter, you’re screwed. “It’s a little ironic for [Mr. Vincent] to be saying that he didn’t understand the legal consequences of the publishing contract that he signed that declared me an author, that declared me explicitly co-owner of the copyright,” said Mr. Kaplan. “It must be hard for a man who went to Yale Law School.”
Experts say Mr. Kaplan’s lawsuit is highly unusual. According to Martin Garbus, an attorney whose expertise includes copyright law, “It’s the rare case that gets to litigation. Problems work themselves out … The presumption in the copyright area runs in favor of Kaplan.”
“David wants to publish what he wrote,” said Audrey Feinberg, Mr. Kaplan’s wife and attorney. “It’s his work. It’s a horrible situation to be in to write something that doesn’t get published.”
A Well-Placed Leak
At first glance, the dispute seemingly began when The New York Times obtained a copy of a 40-page proposal for the Vincent-Kaplan book, which was called And the Horse They Rode In On. The Times published a news story in early 1994 based on the proposal, with its deliciously nasty references to such characters as acting commissioner Bud Selig (“a small-town schlepper”) and Chicago White Sox owner Jerry Reinsdorf (“the emblem of baseball’s decline”). Mr. Vincent was enraged, saying that “this tells me the publishing industry is filled with bad people,” and said that he would not go forward with the project. Apparently he had second thoughts, because he and Mr. Kaplan signed their contract with Little, Brown on April 8, 1994, a month after the Times story. The contract stated that both men held the copyright.
The collaborators then set to work with the frequent encouragement of Roger Donald, a senior editor and vice president at Little, Brown. Mr. Donald was so happy with the progress the two men were making that he pushed up the book’s publication date to take advantage of the mess created in Mr. Vincent’s absence-a labor dispute in 1994 forced cancellation of the World Series. Little, Brown promised a first printing of 100,000 copies. The book, retitled Baseball Breaks Your Heart , was featured in Little, Brown’s spring 1995 catalogue with a two-page spread that promised a “frank and sometimes scathing portrait of the people who gave us the 1994 strike.”
On Nov. 23, 1994, however, Mr. Vincent formally withdrew from the project. It was not, after all, the leak to The Times that bothered him, but perhaps something more tangible. Already a member of the board of Little, Brown’s parent corporation, Time Warner Inc., Mr. Vincent was angling to head the board’s compensation committee. But Gerald Levin, Time Warner’s chief executive, told Mr. Vincent in October that his contract with Little, Brown precluded the move because it would mean that Mr. Vincent was not an “independent” director, a prerequisite for chairing the compensation committee. A month later, Mr. Vincent declared himself a free agent.
Mr. Kaplan was devastated. “The publishing contract was signed by both of us, both of us represented by counsel,” he said. “The collaboration agreement was being negotiated. I never promised him confidentiality. We never had a discussion about it. Perhaps Mr. Vincent in his own mind assumed things would be confidential, but that doesn’t constitute a promise by me.”
Mr. Vincent did not wish to discuss the specifics of the litigation with The Observer . He made it clear, however, that he wanted Mr. Kaplan to stop any efforts to publish material based on the work they did together. If Mr. Kaplan loses the case, Mr. Vincent said, he would neither write his own book about that period in his life nor find a ghostwriter or collaborator to work on such a project with him.
The judge who will hear the case, Barrington Parker Jr., already has thrown out Mr. Kaplan’s claims for fraud and contractual damages on technical grounds, as well as a cross-claim by Mr. Vincent.
A Show of Restraint
What remains in dispute is a determination of whether or not Mr. Kaplan is a co-owner of the copyright. And the dispute figures to linger, because both sides have declared that they will appeal if they lose on the copyright issue.
Mr. Vincent’s attorney, William F. Cavanaugh Jr., a partner at Patterson, Belknap, Webb & Tyler, appears unconcerned. “It’s pretty clear Mr. Vincent had control of the entire process,” he said. “Even if Mr. Kaplan wins his claim … I still think we could try to restrain him from publishing.”
If Mr. Kaplan does, in fact, win the case, he said he will go forward with the project in some form. But John Helyar’s 1994 book, Lords of the Realm: The Real History of Baseball , spent 120 pages recounting baseball’s trials and tribulations during Mr. Vincent’s tenure. Are there any stories left to be told? Mr. Kaplan certainly thinks so.
“John Helyar wrote a very good book,” Mr. Kaplan said. “I’m very confident that anything I wrote would be fresh. I think there’s great interest in that period in baseball and great interest in Fay Vincent’s role in it. You can look just at Pete Rose’s request for reinstatement and the reaction to it.” Mr. Vincent was second in command when his friend and predecessor as commissioner, Bart Giamatti, banned Mr. Rose from baseball because of gambling allegations.
“I wish this litigation hadn’t been necessary,” Mr. Kaplan said. “I wish Fay all the best.”