5.16.2006

Oh yes yes yes...

AuthorHouse Loses Libel Case


by Claire Kirch, PW Daily -- 5/16/2006
Article


A Kansas jury last week found print-on-demand subsidy publisher AuthorHouse guilty of publishing a work that libeled the author’s ex-wife, and ordered the company to pay $230,000 in actual damages to Rebecca Brandewyne, a bestselling author of mass-market historical romances. Brandewyne is best known for Outlaw Hearts and Upon a Moon-Dark Moor, both published by Love Spell, an imprint of Dorchester Publishing. Her next novel, Crystal Rose, is due from Mira Books.

According to court documents, AuthorHouse published Paperback Poison: the Romance Writer and the Hit Man by Gary D. Brock, with his current wife, Debbie Brock, in November, 2003. Some of the more incendiary claims in Paperback Poison include allegations that Brandewyne broke laws, committed adultery, plagiarized several of her books, and hired a hit man to kill her ex-husband, the book’s author.

Documents filed with the court by Brandewyne’s lawyers assert that the Brocks had informed AuthorHouse that the book had been turned down for publication by at least one other publisher due to concerns about its libelous content. “AuthorHouse knew or should have known,” the complaint reads, “that in publishing and distributing the book, [Brandewyne] would be injured.”

The Kansas jury ruled for Brandewyne even though AuthorHouse’s contracts state that the publisher assumes no legal responsibility or liability “for any loss, damage, injury, or claim to any kind or character to any person or property” in publishing the works of its clients. Jay Fowler, an attorney for Brandewyne, maintained that the “contract does not absolve AuthorHouse of their responsibility. AuthorHouse published the book, put it on the Internet, did everything a publisher does. They’re responsible for publishing this book without vetting it first.”

Fowler said that AuthorHouse claims 74 copies of Paperback Poison in total were printed, 21 were given to the author, three were sold, and the company destroyed the 50 copies they had remaining in stock after receiving complaints about the book from Brandewyne and others. “But that book’s still out there,” Fowler said. “Sometimes, [the online seller] says the book is published by Lightning Source, sometimes 1stBooks, sometimes AuthorHouse. But it all flows back to AuthorHouse.”

Bryan Smith, president and CEO of AuthorHouse, said he was disappointed that the jury ignored the First Amendment protections afforded AuthorHouse, and instead “were permitted to considner Kansas common law theories of outrage and invasion of privacy.” Smith noted that while the AuthorHouse system leaves authors in control of the content of their books, the company works to identify objectionable material. “In this case,” he said, “we acted promptly and conscientiously once we discovered the potential problems, and do not believe our actions justified the verdicts.”

AuthorHouse is considering appealing the case once the final judgments have been made. Under Kansas law, while the jury agreed that Brandewyne also should be awarded punitive damages, that amount will be determined by state court judge Jeff Goering at a hearing in Wichita scheduled for May 25.

39 comments:

Ric said...

That's a helluva big first print run. What's the royalty on 3 books sold?

Carter said...

The First Amendment does not offer protection from claims of libel. Neither does a contract that includes language that attempts to bypass this fact.

roach said...

I wonder if this will give added fire to the libel suit filed against Publish America.

bonniers said...

Couldn't happen to a nicer bunch of people.

ColoradoGuy said...

It will really be fun when one of these libel things pops up with Publish America, because, unlike Author House, PA claims to be a "traditional, royalty-paying publisher."

Pepper Smith said...

Oooops. Maybe they better start actually reading the manuscripts before the publish them?

Actually, the royalties on the books sold was probably not so much of interest to the author as getting what looks like a thinly veiled attack on his ex published.

Cherry Tea said...

I now wish I paid more attention to the news. I would have loved to have a seat in that courtroom!

Kelly said...

My day-job side, the one with the legal (read: anal-ytical) background, thinks there is a silver lining here for vanity-published authors: It's a form of recognition that their work has actually been published rather than just printed. If all that had happened was that they'd printed it, then wouldn't it have been a lot tougher to call it libel?

By the way, I'm glad to hear Authorhouse wasn't allowed to weasel out of this by claiming the author bears full responsibility. Give me a break.

kathie said...

Sheesh, could someone alive and well in this country really write that stuff and think no one will notice, care, sue? Lordy...

Kate S. said...

In Canadian defamation law, all that is necessary for defamatory remarks to count as "published" is that they be communicated to one other person apart from the plaintiff. If they're communicated verbally it's slander; if they're communicated in writing it's libel. If the same holds true in U.S. law, then Mr. Brock only needed one reader to fall afoul of the law.

Anonymous said...

Off topic Q: I am a first time author. Novel published by big NY house. My agent introduced me last month at a reading. A writer friend said that was tacky. Like asking the baker of the wedding cake to kiss the bride.

I totally disagree. This agent found me a reading at a great publisher, sold the book, helped me navigate several rewrites. I was DELIGHTED that she introduced me. What say you, Miss Snark?

boopsievixon said...

hot dog! It's about friggin' time AuthorHouse is exposed. Good for Brandewyne, hope the appeal is denied, and that she does receive additional punitive damages.

Kendall said...

My understanding (IANAL) is that it's the same in the U.S. as in Canada. So I don't believe it will be a silver lining for AH. Libel doesn't mean or imply that something was "published" (or at least, not the way we here in the Comments section think of "publishing")...it just means something was written (versus spoken, for slander).

Mark said...

Printing is still legally published as these folks just found out the hard way.

Maya said...

This is actually the final chapter in a long-running soap opera.

On May 18 last year, Gary Brock--Brandewyne's ex-husband--was found guilty of planting a fake bomb on his porch and then claiming she had done it.

I blogged about the case today.

Beth said...

Bryan Smith, president and CEO of AuthorHouse, said he was disappointed that the jury ignored the First Amendment protections afforded AuthorHouse

Last I checked, our First Amendment protections do not extend to libel.

Anonymous said...

"Oh yes yes yes..."


(I love when Miss Snark makes those Meg Ryan sounds.)

C.E. Petit said...

Just a few random notes (and I'll be blawgging this myself at Scrivener's Error sometime today, after I finish up with several other crises…), if only because the Snarky One has bigger readership than do I:

(1) Easy one first—Mr Smith is full of something, and not intellectual rigor, in claiming that his firm deserves extra First Amendment protections. Those protections are already built into US libel law.
* The burden of proving falsity is on the plaintiff (the converse was, and remains true in England)
* Truth is a complete defense (but, in 18th-century England, could actually increase damages)
* The public-figure doctrine—and this matter certainly implicated it—is explicitly required by the First Amendment
* Publishers aren't responsible for material over which they have no editorial control (NY Times v. Sullivan)
Mr Smith wants an absolute shield for publishers. That's not a First Amendment issue—that's his version of "tort reform."

(2) The actual result is a foregone conclusion that could have been predicted by any first-year law student. Defamation is a joint-and-several tort, in which fault does not get specifically allocated among the tortfeasors. My favorite example of allocation is the collision that finds the defendant city 40% responsible for failing to clear brush that partly obscured the intersection, and the driver who hit the victim 60% responsible for driving too fast for the conditions but within the speed limit. In that instance, the city is responsible for 40% of the damages; the driver is responsible for 60% of the damages; and if either can't pay, the victim is stuck.

That is not this case. The jury did not allocate fault, so the victim can get her entire recovery wherever she can find it. The victim is not a party to the contract between the publisher and author, and is not herself bound by anything in that contract. If the victim asserts her judgment against the publisher, the publisher's only defense is to pay up and then seek indemnification from the author.

(3) Roach referred to the "libel suit" against PublishAmerica. That's a slightly more complicated matter (N.B. I am not counsel in that matter, but I have been retained as an expert witness for the plaintiffs), since there's a lot more than just "libel" involved in the lawsuit. Let's just say that the Kansas decision certainly won't help PA in the Maryland courts, although it's not a precedent (indeed, it is at most persuasive authority, slightly better than a law review article).

Bernita said...

Beautiful.
Thank you, C.E. Petit.

J. Carson Black said...

I hope it puts them out of business.

Edgy Mama said...

Yes! I have a book with Authorhouse, that, happily, is about to go out of print.

I'm glad that Authorhouse, and, by association, other self-publishers, will have to take responsibility for what they publish.

Miss Snark said...

AuthorHouse is NOT a self publisher. AuthorHouse is a forprofit business that publishes the work of people who pay them. They are a vanity press. There is a HUGE difference.

Mark said...

That's a common misconception. A self-publisher is author footing the bills ala carte and reaping all of the profits should there be any. It isn't the realm of amateurs like vanity presses are.

Mark said...

Mr. Petit explains it well here:

Vanity Press

Anonymous said...

Wonderful news! I read about this on the Writers Beware blog. Excellent!!! However, there's only one thing that really bothers me about this article. Whoever wrote it used the words print-on-demand as a publishing category. WRONG!!! Print-on-demand, or POD, is a publishing "process." Huge difference. It just bugs me because people may get the wrong idea of what POD is. If we go around calling all publishers that use the print-on-demand process to produce books POD publishers, we'll have to start calling all publishers that use offset printing to produce books Offset Publishers, and the mass market publishers will be Web Publishers (that's the type of printing press used to print large quantities of books). "Hey, I got this awesome book deal with a Web Publisher!" Say what?

NOT ms said...

Anon with the off-topic question:
Your 'writer friend' is a jealous jerk-off.

NĂ© said...

libel: print v. publish
It's been a while since U.S. Journalism Law/Ethics, but from what I recall, it doesn't matter if it's printed or published. The critical factor is if the printed matter is an un-truth, and accessible to a degree that it could affect the victim's reputation/career/livelihood in an unwelcome manner.
Dictionary.com lists libel as: A false publication, as in writing, print, signs, or pictures, that damages a person's reputation.
The act of presenting such material to the public.

Interesting. So in 1774, could you sue someone if they drew a picture of you shooting a Redcoat and posted it in town square?

Anonymous said...

Okay, I started off with vague notions, but now I'm completely at sea re the differences between 1] printing and publishing, and 2] self-publishing, pod and vanity publishing.

Please, someone, help.

DAVID THAYER said...

This case may have more to say about the recently divorced than the future of vanity publishing.

Anonymous said...

Here is a nitwit question...

Can you libel a dead person?

Anonymous said...

Check back on this case in a few weeks, after the judge awards punitive damages. If Author House appeals they run the risk of the appellate decision affirming the verdict, and being published. Then they can't just blame some backward Kansas jury and a solo trial judge for the result, they will have to acknowledge that an educated court of multiple appellate judges spanked them, too. Maybe that spanking will teach Author House that actions have consequences. Or not. but maybe writing the check will be a lesson learned....

Mark said...

No. You can't libel the dead. I'm not a lawyer, but I study law, including Media Law.

Anonymous said...

I understand that Miss Snark harbors a special derision toward vanity publishers, but how is this story different from James Frey or Kaavya Viswanathan? Whether the issue is lying, plagiarism, or defamation, the bottom line is that publishers aren't paying enough attention to what's in their books.

Miss Snark said...

There is a world of difference between paying "enough" attention, and paying "any". Assuming the people who run AuthorHouse are not morons, it seems reasonable to infer they did not read the book, and certainly did not get a legal opinion on whether it was actionable.

Unless you've read all the books in the genre, you could quite possibly read something and NOT know it was plagiarized.

And Mr. Frey lied through his teeth to everyone until confronted with the evidence. I think some of his claims were blatantly unbelievable, but reasonable people can disagree about that. (It's also not actionable to lie about yourself).

I do not agree that this case substantiates the position publishers don't pay enough attention to what they publish.

I believe this is a cast iron example that AuthorHouse doesn't care what you want "published" as long as you pay the bill.

Dave Kuzminski said...

I can't help but wonder if PA will settle out of court now that they know they stand a very good chance of losing.

Nicole J. LeBoeuf-Little said...

Thanks as always for checking in and elucidating the matter, Mr. Petit--I just went over to Scrivener's to read your extended take on it, and I just have to say I love your Pet Peeves.

Kelly said...

Thanks for the clarifications on the requirements for libel. I guess no silver lining after all!

Too bad. ;)

C.E. Petit said...

Just a couple of comments:

"Publish" means "communicate to a third party." The so-called "publishing industry" got its name from the common-law tort, and (in the grand tradition of the industry since) has continued to warp that meaning.

Yes, in two states (California and Tennessee) one can "libel the dead." Under certain very restricted circumstances involving celebrities. In most states, this would be a variety of either "invasion of privacy" (of surviving family members) or perhaps "infringement of the right of publicity."

Finally, keep in mind that although we're all talking about libel here, the Brandewyne case involved related, but distinct, legal theories in addition to libel. One problem facing authors who are writing on the edge—particularly when involving celebrities—is that publicity and privacy rights can still be infringed even when the author takes every effort to ensure that what she write is true (and, therefore, not libellous… under US law). Similarly, there's a more-distantly related tort generally called "outrage," although it also has other names; the problems there can be even worse. (Or better, from the perspective of a lawyer anticipating the potential billings!)

Mark said...

I stand corrected and wish my ancestor lived in my state or the other one, but that would have changed everything.