June 1, 2016
Throwing the book at ’em: publishers in court
by Ryan Harrington
Graham Jules, a forty-eight-year-old British entrepreneur, prevailed this week in a two-year-plus intellectual property struggle with Marvel and DC comics. The two publishers, who sued Jules to prevent his self-publishing a book called Business Zero to Superhero on the grounds that they owned rights on the word “superhero,” have backed down shortly before their day in court, in a move that might be called severely un-superhero-like.
In a recent piece marking Jules’s victory, The Guardian’s John Dugdale asks just how usual it is for a publisher to win its day in court.
For starters, there’s the classic point Penguin scored for publishing when they were allowed to bring out D.H. Lawrence’s Lady Chatterly’s Lover over the objections of the British crown. We have a tough publisher loss in the 1972 case of Howard Hughes v. McGraw-Hill, wherein the notoriously reclusive aviator and businessman sued over an “autobiography” transcribed from interviews that turned out never to have taken place. Perhaps most baffling is the stalemate that ended 2014’s Scarlett Johansson v. J-C Lattès and Gregoire Delacourt, which the actress filed in a French court, alleging that an unnamed character in a recently-published novel was clearly based on her. The court found that the novel was not guilty of “fraudulently… exploiting her celebrity,” but still awarded Johansson €5,000 because her fictional doppleganger had engaged in two affairs that the real actress hadn’t.
Dugdale’s overview has the publisher losing in six of the ten cases it visits.
It also leave you wondering, sometimes, which side you’d be rooting for. Anyone will be happy to read of a known Holocaust denier losing his libel claim against Penguin and one of their authors, but the stakes are less clear when, for example, two different divisions of Random House are embroiled in accusations of plagiarism arising from Dan Brown’s The Da Vinci Code. Perhaps the article’s one crucial takeaway is this: if you’re a publisher signing a multi-million-dollar, multi-book deal, make sure that you specify that the author must deliver a manuscript in some state more advanced than just “complete.” Even a simple “satisfactory” will do to spare you the awkwardness of canceling that contract — and the misery of years in litigation.
Ryan Harrington is a senior editor at Melville House.