I recently commented on Tess Gerritsen’s throwing in the towel with respect to pursuing her “rights” case against her publisher. At first pass this might not seem like such a big deal–until Ms. Gerritsen’s gravitas in the market is taken into consideration. And she’s also smart enough to have gotten through medical school, so one of the first considerations is that she should be bright enough to understand her book contracts. This sounds great until one asks if an attorney should also deliver babies or perform heart surgery?
With respect to recognizing the potential “traps” in a book contract, I defy anyone who is not a lawyer with a specialty in intellectual property and a subspecialty in literary works to have the ability to offer adequate protection for an author/client. And notice that I didn’t say “full protection,” since there is no such thing. As I referenced in my Newsletter, attorneys who have signed book deals have found their positions woefully underserved as well.
If a writer with the publishing-industry weight of Ms. Gerritsen cannot even get to first base in a courtroom, how can a writer with less import be expected to possibly fare any better? As I’ve sadly often reported in my Newsletters, the court’s position–time and again–is that publishing for the writer is a buyer’s beware environment in which the author is supposed to fully comprehend what he or she has entered into. This of course begs the question: If attorneys who represent authors don’t recognize the width and breadth of the agreements, how can the writer be expected to fare any better?
I’m not going to rehash the Apple suit, except that this case was adjudicated by Judge Denise Cote, as was Ms. Gerritsen’s suit as well as the recent AuthorSolutions, Inc., judgment, of which the latter fostered this article. For anyone who might be unaware, Judge Cote ruled against class-action status, stating, among other contentions, that ASI did not set out to financially benefit from its clients in an untoward way (my words, sorry) by artificially guaranteeing marketing that would sell a client’s book (again, my paraphrasing). This however had nothing to do with the denial of class-action status, as this was predicated in Judge Cote’s ruling on the “fact” that there wasn’t claim uniformity on the part of the litigants (once more, my rhetoric).
The argument to support the ruling was that there wasn’t consistency pertaining to the reasons for filing suit. I guess spending thousands of dollars ($25,000 in the instance of the primary litigant, who was elderly) after being convinced of the book’s market potential–when it had virtually none–isn’t considered an unfair trade practice, which was the other litigant’s main complaint as well. What makes this incredible is that thousands and thousands of ASI clients have claimed they were pressured in one way or another to buy services, ranging from editing to marketing. As to the marketing side of the equation, I’d like to ask the judge what she would feel like if someone offered her a marketing package? Should she expect a reasonable chance for a positive return for her expense? Okay, perhaps that’s grandiose. But what if thousands of people have the same result? Does the one in a thousand who can show a “plus” return justify the financial pain the other nine-hundred ninety-nine experienced?
The court is making it clear that ignorance is not remotely a valid writer’s excuse. I do, however, argue that attorneys filing for class-action status should be intimately aware of the constraints. This concerned me when Judge Cote refused the petition for class-action status, citing the disparate nature of the litigants’ claims (once again, my wording) and that the two litigants leading the suit were not from New York, where the suit was filed. This begs a really big question: Why on earth was the claim made in a New York courtroom when the litigants were living in the Midwest, where they also resided when their books were published and all the well-documented tomfoolery was initiated? The potential problem with filing in New York is especially obvious when it seems that every major case involving possible literary malfeasance ends up on Judge Cote’s docket. Let’s all jump in and fight this bull with a butter knife, shall we?
While I haven’t agreed with the judge’s rulings involving Apple or Ms. Gerritsen, Denise Cote is obviously a brilliant jurist who does a masterful job of protecting the letter of the law. However, I’m of the opinion that reality has to enter the equation at some point. Should Ms. Gerritsen have known what she was entering into? Probably. But should an elderly writer from the Midwest be allowed to lose five figures on a first book that legitimate industry experts would argue had a de minimus chance for appeal beyond friends and family? Should this fine old woman, who’s been a pillar in her community all her life, have known that the ASI imprint really wasn’t going to market her book? or market her material in the way she perceived based on the glowing telephone presentation provided by her “adviser”?
The cold, hard truth is that if this sale had been made by a stockbroker, this senior citizen would have recourse. Or anyone from a life insurance salesperson to someone selling a cemetery plot or siding for her home. But as a writer she enjoys no such protection. Yes, she made the titanic mistake of writing a book—and this provides her with nothing in the form of legal relief from a zealous telemarketer who knows how to play on someone’s subtle vainglory, as who doesn’t believe he or she hasn’t written the next great book? No, she made the mistake of expecting reason to come to her defense, when the only recourse writers seem to have is when blatant plagiarism occurs. For all else, Judge Cote has set the bar so high that it’s currently not even approachable. She’s shouting it loud and clear so her words resonate from coast to coast: Let all writers take heed–you have no rights!