Legal Stuff

Brought to book: when publishers go to court

22 June 2016

From The Guardian:

A writer scored a significant victory over publishers this week, when comic book giants Marvel and DC – who had tried to block Graham Jules from using “superhero” in the title of his self-help manual Business Zero to Superhero – backed down after more than two years, just before a hearing in London. Their double shame (first coming across as bullies, then failing) raises the question: how well do publishers fare when they sue or are sued – are they legal superheroes or zeroes?

Regina v Penguin, AKA the Chatterley trial (1960)
The crown sought the banning of DH Lawrence’s Lady Chatterley’s Lover under the Obscene Publications Act, and equally ill-advisedly the prosecution was led by fuddy-duddy Mervyn Griffith-Jones, who notoriously urged jurors to reject the book as one they would not wish their “wife or servants to read”. They backed Penguin’s right to publish instead, in a case seen as heralding 60s permissiveness. (or, as portrayed in Larkin’s “Annus Mirabilis”, the arrival of “sexual intercourse”).Publisher win

. . . .

Random House v Joan Collins (1996)

Unimpressed by the first novel produced by Collins (then at the height of her post-Dynasty fame) as part of a $4m two-book deal, Random House called it “unreadable” and sued for the return of the $1.2m advance. Crucially, her contract had only stipulated a “complete” text, with the usual requirement for a “satisfactory” one indulgently removed; she duly emerged the winner, with Random House (which never published the novel) exposed as embarrassingly eager to profit from shoddy celebrity blockbusters as well as failing to retrieve its money. Publisher loss

. . . .

Baigent and Leigh v Random House (2006)
Dan Brown gave evidence in London’s high court when his mega-selling The Da Vinci Code was accused by the authors of conspiracy history book The Holy Blood and the Holy Grail (published, as it happened, by another division of Random House) of having “appropriated the architecture” of their work and so infringing their copyright. The judge dismissed their claim, and they were ordered to pay costs estimated at nearly £1.3m. Publisher win

. . . .

Jennifer Pedroza v The Writer’s Coffee Shop (2016)
Pedroza, an American elementary teacher, had worked for the e-publishing outfit that first published EL James’s Fifty Shades of Grey, and argued she had been defrauded by her then business partner of her share of its total estimated royalties of $40m. An almost two-year case ended with a judge in Texas ordering the publisher (based in Sydney, Australia) to pay her $11.5m. Publisher loss

Link to the rest at The Guardian and thanks to Mark for the tip.

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Apple E-book Refunds to Begin June 21

21 June 2016

From Publishers Weekly:

The book business is about to get a summer boost. Attorneys today confirmed that $400 million in refunds due readers following the end of the Apple e-book price-fixing case will begin flowing into customer accounts on June 21—with refunds for New York Times bestsellers approaching $7 per title purchased.

Similar to the prior settlements with publishers, which were paid out in 2014, the bulk of the Apple credits will be automatically delivered directly into the accounts of consumers at major book retailers, including Amazon, Barnes & Noble, Kobo, and Apple. Consumers will receive a $6.93 credit for every purchased e-book that was a New York Times bestseller, and a $1.57 credit for other e-books. The credits can be used for “any product or service” offered by the retailer, unlike the publisher settlements, which restricted refund credits to book purchases (print or digital) only. The settlement covers books that were purchased between April 1, 2010 and May 21, 2012.

Link to the rest at Publishers Weekly

PG received his refund this morning.

Thugs, Lawyers, and Writers

18 June 2016

From Kristine Kathryn Rusch:

Here’s the best and worst thing about writers:

We have fantastic imaginations. Those imaginations serve us well when we write books and stories. Those imaginations often fail us when we enter the business world.

What do I mean?

It’s rare to find a writer with a Pollyanna view of the world. Most writers are better at gloom and doom than they are at unremitting optimism.

Writers also have an inflated sense of self—we couldn’t do our jobs otherwise—and a weirdly introverted need to be the center of attention. If we screw up, we feel like the entire world knows—and the entire world will react.

Badly.

For reasons I don’t understand, writers also want rules. They want to know how to write, what to write, and what to do when they’re finished writing. They cobble bits and pieces of information from blog posts to Mrs. Hanson’s Fourth Grade English class, and come up with some convoluted set of rules that they believe every writer could and would follow.

And, more so than in almost any other profession I’ve encountered, most writers are ethical to the point of self-harm. For example, in the United States, we have an annual homework assignment—our federal and state tax returns. Convoluted laws and all kinds of regulation allow for deductibles and legal ways to move income from the taxable side of the equation to the not-taxable side of the equation.

Writers often won’t use those deductibles and regulations that favor them, preferring to pay the full tax burden. Why? They believe that everyone should pay their fair share.

. . . .

But the writerly weirdness causes conflict with our careers and our businesses, in part because we are (as a group) imaginative, rule-bound, pessimistic, ethical, and the center of our own small universes.

We bring all of those things into the realm of contracts.

Be honest with yourself: What do you imagine will happen to you if you don’t follow your book contract to the letter?

Many of you imagine the Worst Case Scenario. What is that? You don’t know, because it’s never happened to you or your friends or your friends’ friends. Writers tend not to discuss what happens when they don’t follow their contracts to the letter.

But most writers imagine they know. They imagine those thugs from the old Warner Brothers cartoons showing up at their doorstep, doing bad Jimmy Cagney impressions, and threatening them with everything from bodily harm to loss of their home to—I don’t know.

. . . .

I’ve spent too much time with lawyers, businesspeople, and sales executives. To them, the entire world is negotiable.

In the past month, I found myself explaining writers to lawyers. Lawyers know that contracts are not written in stone. They’re rarely written in blood. All contracts can be changed, modified, muted, and defanged with enough effort. Sometimes that effort requires a judge and a courtroom.

Often that effort is as simple as a letter of notification, saying quite clearly that one party to the contract no longer wants to follow one particular clause in the contract. If the other party may simply accept that notification, or the other party might protest. Either way, a dialogue has been opened and the contract might end up being renegotiated.

However, lawyers—all lawyers I’ve met anyway—say something when discussing contracts that confounds most writers. Lawyers use the word “ignore” a lot.

Here’s how the conversation goes:

Kris: [flailing about, describing in great and horrid detail how upset she is about a contract clause that is ridiculous, probably unenforceable, and most likely will not stand up in court.]

Lawyer Friend: I don’t think that clause is legal.

Kris: But writers will follow it anyway.

Lawyer Friend: Tell them to ignore the clause and see what happens.

Kris: Writers would never do that.

Lawyer Friend: Why not? People ignore unenforceable clauses in contracts all the time.

Kris: Writers just won’t. They follow rules.

Lawyer Friend: What’s the worst that could happen?

Kris: I don’t know. You tell me.

Lawyer Friend: [shrugs] They’ll end up in court. Might be good for everyone involved, so that there’s clarity on that clause.

Lawyers aren’t afraid of thugs and goons and cartoon characters that go bump in the night. They’re not afraid of someone who plays the Big Dog and says, You’ll never work in this town again. Lawyers generally say, Well, let’s see.

Lawyers know there’s usually a solution—and it’s often as simple as standing up and saying to the person on the other side of the contract, I’m not playing your silly game. No. I’m not doing it. Now, what are you going to do?

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like an author’s post, you can show your appreciation by checking out their books.

PG says that litigation also costs publishers money, whether they file suit or the author does.

From his own experience, he suggests that if a publisher is owned by a large European conglomerate, the big bosses in Germany, France, etc., believe the American legal system is insane and way, way too costly.

For the American subsidiary to pay money to US lawyers instead of sending it back to headquarters seems like a waste of good dollars and the US CEO who does so better generate a good return on those legal fees or he/she will be an ex-CEO.

This doesn’t mean that litigation is something to be taken lightly or that publishers will always cave, but it’s a factor to keep in mind.

Publisher Threatens Writers Association With Defamation Suit After Being Kicked Out For Not Paying Royalties

1 June 2016

From TechDirt:

Back in 2014, erotica publisher Ellora’s Cave sued the person behind the influential and respected website Dear Author for defamation in response to a post questioning the imprint’s financial stability and detailing multiple authors’ claims that the publisher wasn’t paying out royalties in a timely manner.

Dear Author based its post on statements from Ellora’s Cave writers, as well as public records, which included a handful of tax liens against EC founder Tina Engler (a.k.a. Jaid Black). The post was a balanced and sobering examination of the publisher’s financial problems and included plenty of citations for every assertion it made. Rather than address the issues raised by the post, EC/Jaid Black decided to sue.

. . . .

The RWA has basically cut Ellora’s Cave off for violating its Code of Ethics — which includes things like not paying royalties on time. It has banned EC from RWA conferences and forbidden it from using the group to recruit new writers.

The last lawsuit apparently didn’t reverse EC’s downward trend. Apparently, the publisher has enough money to fund litigation, even if it’s still having trouble paying its authors. Nate Hoffelder of the Digital Reader has rounded up comments from EC authors indicating the publisher is anywhere from 8-11 months behind on royalty payments.

Link to the rest at TechDirt

Harvard Loses Copyright Infringment Case Against Steve Elmo

25 May 2016

From Free Nampeyo:

The first entry in the Free Nampeyo blog discussed Harvard’s copyright infringement claims against Steve Elmore’s book In Search of Nampeyo: The Early Years 1875 – 1892.

. . . .

The subject of Harvard’s complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard’s Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore’s book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack’s ruling “Grants Defendant’s Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff’s Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). ”

. . . .

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe.

. . . .

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard’s cross-motion for partial summary judgement.  Judge Brack’s Opinion is that this is not a copyrightable photograph.

a1

Quoting from the Compendium of U. S. Copyright Practices, third edition “as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration”.  A photograph should not be registered “if it is clear the the photographer merely used the camera to copy the source work without adding any creative expression to the photo”.   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a “conservation image” taken as part of a “condition assessment” while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC). Below is a comparison of two of the black and white photographs and the illustrations created from them.

a1

First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show “a minimal degree of creativity–if only a humble spark”.  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs “to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece.”  However, just because a photograph is copyrightable does not mean that “every element of the work is protected….the less original the plaintiff’s work, the more the defendant must copy to infringe on the plaintiff’s copyright.”

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard’s photographs: “Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo.” (emphasis added).

Judge Brack notes that the protection of the HHC photographs is “incredibly limited” and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore’s illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: “Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore’s images, reasonable minds could not find substantial similarity between the two.”

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore’s use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

Link to the rest at Free Nampeyo

PG says most judges see very few copyright infringement cases and sometimes the way such cases are handled feels a little loose. In this matter, however, in PG’s effervescently humble opinion, the judge seems to be doing a good job.

PG hopes that Harvard becomes increasingly humiliated if it continues this bizarre litigation. It was a terrible idea to bring the suit in the first place and, having so thoroughly lost the first round, the Peabody Museum should quit misspending its endowment by trying to interfere with Mr. Elmo’s labor of love in spreading knowledge of a little-known Hopi artist to a wider audience.

Congress May Be About to Shake Up Trade Secret Law: Is That a Good Thing?

28 April 2016

From The Wall Street Journal:

Federal civil law governing intellectual property has long been a three-legged stool: copyrights, patents and trademarks. Unless it’s tabled, legislation advancing in Congress would add a fourth one: trade secrets.

Trade secrets are like patents, but without the strict criteria for novelty and usefulness and without an expiration date. They’re basically confidential, valuable information that gives a company a competitive edge. Famous examples are the precise formula for Coca-Cola and the algorithms that Google uses to sort and filter the Internet.

But a main difference between trade secrets and other areas of IP is how legal fights over them are decided. Trade secret disputes between companies, unlike the three other legs, are brought in state courts.

. . . .

The bill has been described as the “most significant expansion of federal law in intellectual property since the Lanham Act in 1946.”

The DTSA would allow companies to sue for trade-secret theft and pursue damages in federal courts. “The DTSA would require evidence of actual or threatened misappropriation before a court may issue an injunction to prevent it,”

. . . .

Here’s Covington & Burling LLP attorney Richard A. Hertling, testifying before Congress on behalf of another business advocacy coalition in 2014:

Civil trade secret laws originated at the state level, in an era when trade secret theft was largely a local matter. State trade secret laws work well when, for instance, an employee of a local business steals a customer list and takes it to the business down the street. For companies that operate across state and national borders and have their trade secrets threatened by competitors around the globe, the array of state laws is inefficient and inadequate…

The DTSA has a lot of political support but also some critics. Some IP experts say that there’s already a lot of uniformity in state law. The addition of a whole new law, one that would be combined but not replace state law, would stretch adjudication costs and time by giving plaintiffs another forum to take their complaints.

Link to the rest at The Wall Street Journal (Link may expire)

This legislation passed the House of Representatives almost unanimously yesterday and the President is expected to sign it.

Here’s the definition of a trade secret from the new legislation:

The DTSA broadly defines the term “trade secret” to mean “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the another person who can obtain economic value from the disclosure or use of the information.”  Although this definition is broad and certainly includes abstract ideas and laws of nature, it might not encompass information that is only stored in the human mind.

Link to more detail at Patently-O

Got that? Information “stored” in your mind might or might not be owned by someone else.

Tech companies have been using trade secrets for some time to discourage competing companies from hiring valuable employees.

While a business may be exposed to liability for misappropriation by the actions of its overzealous employees, the risk arises more frequently in the hiring process.  New employees with knowledge of a former employer’s trade secrets, for example, may expose the new employer to liability by using or disclosing secrets in the course of their employment.  It is not necessary that the new employee actually use or disclose a former employer’s trade secrets to expose a subsequent employer to liability.  An employer can be enjoined from hiring a new employee where it is “inevitable” that the employee will use or disclose a former employer’s trade secrets in the course of subsequent employment.

Link to more detail at Fairfield & Woods

While PG has perused the occasional confidentiality clause in publishing contracts, he has never seen explicit obligations placed on an author to keep trade secrets of a publisher safe.

Unfortunately, PG predicts this new legislation will catch the attention of counsel for publishers. More verbiage will be added to the contracts publishers want authors to sign. Perhaps by claiming royalty statements or emails from editors contain trade secrets, some publishers will seek another hammer to keep their authors barefoot and pregnant.

It is in the nature of major new laws that several years are required for trial and appellate courts to apply the broad legislative language to the particular facts of individual cases. Court opinions under state law protecting trade secrets may provide some guidance, but in the face of brand new statutory language, it will be easier to argue that definitions and principles developed under state law won’t apply.

This period of some uncertainty about what is and is not protected and/or permitted will give the holders of trade secrets (who usually have more resources than individuals who are employees or contractors) an additional hammer to wave in the direction of those individuals. Inevitably, more than a few companies will overreach. Trade secrets litigation is already expensive and will become more so in the near future.

And, yes, trade secrets laws do limit the First Amendment rights of individuals to freedom of expression, but this exception is well-established under cases arising from state trade secret laws.

SFWA Contracts Committee Alert

22 April 2016

From The Science Fiction and Fantasy Writers Association:

The SFWA Contracts Committee believes there are serious problems for writers with the non-compete and option clauses in many science fiction and fantasy publishers’ contracts. The non-compete language in these contracts often overreaches and limits authors’ career options in unacceptable ways. Writers may choose to bring out a range of books from different publishers — science fiction from one publisher and fantasy from another publisher, for example — and may have to do so in order to earn anything like a living wage.  The problem becomes even worse for hybrid authors who self-publish works in parallel with their traditional publications. Several contracts that we have seen include overlapping restrictions that could keep the author from publishing another book for more than a year.

Authors also retain audio, foreign language, and other rights with the intention of licensing them elsewhere. Language we have seen in these clauses attempts to make authors responsible for how these other rights are used, something that clearly places an unreasonable burden on them.

Authors should think carefully about signing any contract with these restrictive clauses and should negotiate any limitations in the clauses that would interfere with their writing agendas.  There are, in fact, times when it would be best to walk away from contracts with these bad clauses.

. . . .

Any limitation on the author’s ability to write new works at any time is unacceptable and should be deleted.

“Competing work” should be defined in the contract as clearly and narrowly as possible, and preferably limited to a work in the same series (whether one is planned or not). The burden should be on the publisher to prove that another work published elsewhere by the author would reduce their sales.

Any non-compete limitation that is tied to publication of the work covered by the contract should end on a specific date.

Any reference to the author diminishing the value of rights granted to the publisher by selling rights that the author retains should be eliminated as it is vague, unenforceable, and unacceptable.

Option clauses should be crossed out or defined as narrowly as possible. If the option clause can not be struck out entirely, the committee recommends that the author amend the clause so that they only need to submit a proposal or synopsis of a work and not the completed work to satisfy the publisher’s option. In addition, we recommend that the deadline for acceptance or rejection of the work should be no longer than 30 days, starting when the proposal is submitted. Rejection or failure to respond within the time specified should end the option obligation.

Link to the rest at SWFA and thanks to Deb for the tip.

PG says this is a good beginning to removing terrible clauses from publishing contracts. There are, however, many more “standard” provisions that also need to disappear or be substantially limited.

Proposed Settlement in Harlequin Class Action Suit

20 April 2016

A proposed settlement of the class-action suit by Harlequin authors against Harlequin for underpayment of royalties has been released.



HQ-Settlement (Text)

For more information, go to Harlequin Settlement and thanks to JoAnn for the tip.

Contract Basics (Contracts/Dealbreakers)

8 April 2016

From Kristine Kathryn Rusch:

I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

. . . .

Over the years, I have become fascinated with writers’ attitudes towards contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: she was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

. . . .

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future posts, is a truly terrible idea.

. . . .

Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

. . . .

Contracts are extremely important. They define the relationship between the parties. Written contracts are the best, because each party can examine the terms, think them over, and decide whether or not those terms are acceptable.

You and I might discuss a proposed business plan over the phone. I might think we decided to have you do all the publishing work, from designing the covers of a book to writing cover copy, and you might think we decided that you would write the book and I would publish it. A simple misunderstanding that could happen in conversation would be solved if we had a written agreement.

With a written document, you can examine the terms and see if they’re feasible. But you must examine those terms before you accept the offer. Once you’ve accepted, the contract becomes binding.

It’s easier to take legal action over a broken contract if that contract is in writing. Taking legal action does not mean you have to go to court. You can have an attorney contact the other party, and let them know they are in breach of the contract. That’s very easy to do when the terms are spelled out.

I can’t tell you how many times I’ve taken part of a publishing contract and used that section to show the publisher that they were in breach of the contract.

Once someone is in breach, by the way, they usually have the right to cure. Meaning, if they do something wrong, they have the right to fix that problem within a reasonable amount of time.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like an author’s post, you can show your appreciation by checking out their books.

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

2 April 2016

From The National Law Review:

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content.  A recent case touches on some of the important legal issues associated with such change.  Among other things, the case illustrates the importance of service providers maintaining clear and appropriate terms and conditions that relate directly to the role they serve in the expression of content over online media.

The case involves a number of online self-publishing services. For those authors who have struggled to find a publisher or who would otherwise prefer to keep control of their IP rights in their books, there are many such businesses.  Such services allow authors to upload works and pay to transform those manuscripts into paperbacks via a print on demand model or make them available in ebook form for sale on the sites of major e-booksellers. Unlike a traditional publisher, however, self-publishing services do not fact check or edit materials (though, users may take advantage of unaffiliated paid services that do just that) and do not use a vetting process that might catch potentially defamatory or infringing content prior to publishing.  Indeed, beyond automated reviews for things like pornography or plagiarism, these platforms do not review submissions for content and rely on user agreements that contain certain contractual representations about the propriety of the uploaded content.

But what happens when a self-published book offered for sale contains content that may violate a third-party’s right of publicity or privacy rights? Should the self-publishing platforms be treated like traditional “publishers” or more like distributors or booksellers?

. . . .

The dispute began with the unauthorized publication of the plaintiffs’ engagement photograph on the cover of an erotic book authored by Greg McKenna (under a pseudonym).  The book was uploaded using several online self-publishing platforms and offered for sale on the major ebook sites (as well as being offered in paperback form via print-on-demand).  The alleged privacy violations were aggravated when the book was displayed in nationwide media, including in jokes on some late night TV talk shows.  Less than a month after publication, the author received a letter from plaintiffs’ counsel and contacted the ebook vendors to remove the offending book cover and replace it with a stock image.

The plaintiffs subsequently brought suit against the author McKenna and the self-publishing vendors used by the author (i.e., Amazon’s Kindle Digital Publishing, Barnes & Noble Nook Press and Smashwords), asserting right of publicity and invasion of privacy claims.  Liability against McKenna was sought based upon the allegation that he authored the work in question, and claims against the self-publishing vendors on the theory that they “published” the work.

. . . .

“For now, this Court will apply the old standards to the new technology, treating the [self-publishing vendors’] process as if it were next logical step after the photocopier. Just as Xerox would not be considered a publisher and held responsible for an invasion of privacy tort carried out with a photocopier, [the Defendants] will not be liable as publishers for the tort allegedly committed using their technology.”

Link to the rest at The National Law Review and thanks to Nirmala for the tip.

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