The lawsuit by an author who says her publisher, Penguin, steered her work against her wishes into “black interest” marketing channels is now online courtesy OnPointNews (complaint/answer, both PDF). The comments section on our original post (Jan. 24) has been busy indeed, and we’re continuing the discussion here.
Posts Tagged ‘publishers’
Penguin “black interest” lawsuit, cont’d
Our post of Wednesday on an author’s complaint that Penguin Group steered her work into “African-American interest” marketing channels, although she would have preferred for it to be marketed as a general interest book, has spurred a somewhat heated discussion in the reader comments section. It also drew an informative comment in email from Charles Petit, author of the publishing-law blog Scrivener’s Error, which we’ve appended to the original post.
Author: Penguin tagged my book as “black interest”
Many large bookstores carry sections devoted to works of African-American interest, and a number of book clubs and other specialized selling channels do a thriving business by specializing in black themes and authors. In October, however, Florida-based author Nadine Aldred, who writes under the pen name “Millennia Black“, filed a pro se lawsuit in federal court in Manhattan against her publisher, Penguin Group, on the grounds that Penguin (she alleges) insisted on steering her work into black-interest channels although she would rather have been marketed as a general-interest author. On the Wrong Side of the Alligator has reprinted excerpts from the complaint (Jan. 6).
The estimation of whether a particular author’s work will sell better if marketed to a niche or to a more general audience is inescapably going to depend on case-by-case judgment (assuming that marketing dollars and available cues of cover design, etc. are limited and cannot be dispatched in both directions at once). It is not immediately apparent why Penguin would not have an interest in taking a path that maximized its author’s sales. Aldred’s suit asks $250 million. See also Jeffrey A. Trachtenberg, “Why book industry sees the world split still by race”, Wall Street Journal/Pittsburgh Post-Gazette, Dec. 6.
P.S. Disclosure, for whatever it’s worth: Penguin was my publisher on my first book (The Litigation Explosion).
More: Charles E. Petit of Scrivener’s Error writes to say:
The real problem in this instance is not with Penguin. The real problem is an antitrust nightmare: the book distribution system, which is probably the paradigmatic example of “one man’s antitrust is another man’s economy of scale”–at least until you look into the financing and terms of doing business, which makes me ask “What economies of scale?” The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped. In other words, “We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit.”
Juicy Legal Fallout from Cancellation of O.J. Simpson’s Book Deal
The recent decision by News Corp. publishing subsidiary HarperCollins to cancel the publication of O.J. Simpson’s no-tell tell-all If I Did It is generating ripple upon ripple of actual and threatened litigation. Last Friday, Dec. 15, News Corp. summarily fired Judith Regan, who made the Simpson deal and who would have published the book under her Regan Books imprint. Notwithstanding her personal responsibility for one of the great debacles of contemporary media, Regan maintains she is the wronged party in the firing and has hired high-profile Hollywood lawyer Bert Fields to take on her former employers.
The Wall Street Journal (Dec. 18 – article is available to non-subscribers) reported yesterday:
But Ms. Regan is fighting back, hiring well-known Hollywood litigator Bert Fields. ‘They’ve chosen war and they will get exactly that,’ said Mr. Fields in an interview. ‘She won’t take this lying down.’
Mr. Fields said HarperCollins had used guards to lock down Ms. Regan’s office and had also impounded her personal belongings. ‘We’ll take appropriate action for everything HarperCollins has done,’ added Mr. Fields. ‘They chose this path and I hope they remember it.’ A HarperCollins spokesman said that Ms. Regan collected her personal belongings before leaving her office in Los Angeles and that her office in New York wasn’t locked and that her belongings weren’t impounded.
* * *
[T]his past week, tensions flared, although details are still sketchy. One scenario has it that Ms. Regan made some intemperate remarks to a HarperCollins attorney on Friday afternoon, causing Ms. Friedman to fire her. The termination was executed with none of the usual corporate pleasantries about "pursuing other opportunities" and long years of service.
In an intriguing sidelight, the WSJ‘s Law Blog (Dec. 18) reports that attorney Fields is, or fancies himself, a Shakespeare scholar and has had two books published on Shakespearean subjects . . . through the Regan Books imprint. (Oh no, no potential conflicts of interest there; let’s just move along.)
Fields is perhaps best known as the bane of the Walt Disney Company: he represented Jeffrey Katzenberg in the now-settled litigation arising from Katzenberg’s departure from the company, he was consulted by the Weinstein brothers of Miramax when their relationship with Disney cooled, and he has featured prominently in the seemingly never-ending dispute over the rights to Winnie the Pooh. He has also been a subject of interest, but has not been the object of any criminal charges, in the investigations surrounding wiretapping and other alleged misdeeds by "private investigator to the stars" Anthony Pellicano.
News Corp., in preparing to respond to Regan’s and Fields’ accusations, has taken the unusual step of disclosing the content of otherwise confidential notes taken by one of its own attorneys. Those notes purport to reveal anti-Semitic remarks made by Regan and claimed by News Corp. to have been the "last straw" leading to Regan’s firing. (See New York Times, Dec. 19).
Meanwhile, ABC News (Dec. 18, via the publishing weblog GalleyCat) reports that Regan and others at Regan Books, HarperCollins and News Corp. will likely either be named as defendants or at the very least have their depositions taken on behalf of the heirs of Ronald Goldman, who continue to attempt to collect on their civil wrongful death judgment against Simpson. The Goldman family sees the entire transaction as a further attempt to hide Simpson’s assets:
The lawsuit would likely be based on the legal premise of ‘fraudulent transfer,’ which in this case would contend that News Corp. executives knowingly conspired to assist Simpson in subverting a civil judgment against him.
And so the saga continues, with only the lawyers — and Simpson — seeming to gain from it.
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UPDATE: The Smoking Gun (Dec. 19) has posted a copy of the Goldman lawsuit, to be filed in U.S. District Court in Los Angeles and naming as defendants Simpson and Lorraine Brooke Associates, a corporation created (per the Complaint) to “warehouse Simpson’s intellectual property rights” and to serve as a conduit through which proceeds of those rights might be funneled to evade the Goldman judgment.
More on “unfair failure to publicize” suit
The New York Times has more on that dispute in which an L.A. boutique is claiming that Us Weekly is wrongfully failing to give it publicity (see Sept. 12). (Mireya Navarro, “The End of a Beautiful Friendship?”, Sept. 21). More: Ellis Henican, “Only in America: Suing to Be a Celeb”, Newsday, Sept. 20.
Lawsuit claim: legal right to more publicity
Some time ago, celebrity boutique and paparazzi-magnet Kitson had a legal dispute with Us Weekly magazine over payment for a book party the store threw for an Us editor. It was settled for a small chunk of change and a standard non-disparagement clause over the lawsuit. Us Weekly had the last laugh, however; it stopped covering the store in its magazine, to the point of cropping out the Kitson logo when publishing photos of celebrities shopping there. Or it thought it had the last laugh, because Kitson is now suing Us Weekly claiming a legal right to the publicity the magazine is withholding and alleging $10,000/week in damages from the loss of publicity. The Jossip blog has the complaint and somewhat more detail than the mainstream press account. (Andrew Blankstein, “Celebrity Boutique Sues Us Weekly, Saying Lack of Coverage Is Hurting Business”, LA Times, Sep. 12) (via Romenesko).
“As so often, aggressive IP lawyers trumped smart business strategy”
Virginia Postrel says Marvel Comics did itself no favors recently by taking a tough negotiating stance over The Atlantic’s proposed cover use of one of its images. (Sept. 6). I had no idea anyone was asserting trademark rights over the word superhero. (Corrected Sept. 10 to fix error about how The Atlantic was going to use the image — see comments.)
“We’re going to sue everyone from A to Z”
It was easy to sympathize with Richard Jewell, victim a decade ago of FBI bungling which led to his being falsely suspected in the Atlanta Olympics bombing. It’s not so easy to sympathize with his legal posture since then, which would be easily mistaken for an effort to vacuum the pockets of every media organization within reach. (Mark Fitzgerald, “Sob On Someone Else’s Shoulder, Richard Jewell”, Editor and Publisher, Jul. 25).
Humane Society vs. free speech
The Humane Society of the U.S. says it plans to sue Amazon.com under a District of Columbia consumer protection statute because the online retailer has rejected its demands to stop selling two magazines aimed at cockfighting enthusiasts, The Gamecock and The Feathered Warrior. (They seem to have overlooked Grit and Steel.) The Society claims that a federal law prohibiting the use of the U.S. mails for the promotion of cockfighting events renders the magazines illegal, a position that the U.S. Postal Service itself has apparently not chosen to endorse. (KTHV, Jul. 18; Elizabeth M. Gillespie, “Humane Society urges Amazon.com to quit selling cockfighting mags”, AP/Seattle Post-Intelligencer, Jul. 18; Nobody’s Business, Jul. 24).
Update: Tony Twist $15M verdict upheld
We covered the case—where a hockey player complained that a comic-book character had the same name—on July 13, 2004. Todd MacFarlane still has the chance for discretionary review by the Missouri and U.S. Supreme Courts, though the former has already ruled against him once. Eugene Volokh will be sure to have insightful commentary on the First Amendment implications; here’s his earlier take, predicting a “good chance” of Supreme Court review and reversal. Beyond the First Amendment implications, the damages are ludicrous.