Defamation-on-Demand
February 3, 2009
Drew E. Shenkman- Washington
Authors increasingly are taking advantage of the new online opportunities provided by publish-on-demand companies. Unlike “vanity” publishing companies of the past, on-demand publishers do not require customers to preorder “runs” of any books, and instead printing copies as they are purchased. This provides a cheaper means for many authors to publish their works.
Also unlike traditional publishing, on-demand publishers provide no editing and fact-checking services. When they do, it is often outsourced at an additional fee. This distance from the writing and editing process provides them with a strong defense in defamation actions. Recently, the hands-off nature of the on-demand publishing model helped an Amazon.com subsidiary, BookSurge, win summary judgment for allegedly defamatory statements made by authors of a book it published.
The facts from Sandler v. Calcagni, filed in federal court in Maine, are straight out of an after-school-special-gone-bad. Two young women, Shana Sandler and Mia Calcagni, were classmates in high school and members of the cheerleading squad. Over time, their friendship soured and Calcagni spread vicious rumors about Sandler. A fight erupted, resulting in Calcagni being found guilty for conspiring with others to paint swastikas on road signs around Sandler’s neighborhood (Sandler was Jewish).
Calcagni’s family wanted to tell their side of the story, hired an author and independent fact-checker to help write and research their version of events, and purchased a package which obligated BookSurge to print their book, Help Us Get Mia, exactly as it was submitted. BookSurge had no involvement in the writing or production of the contents, and was only paid to bind and print the book.
Sandler sued Calcagni and her parents, the ghost-writer, the fact-checker and BookSurge, for defamation. The court granted BookSurge’s motion for summary judgment due to the publisher’s remote position from the development of the book’s contents. First, the court held that merely printing the book did not establish liability. Second, under Maine defamation law, BookSurge’s liability turned on the legal concept of scienter – whether it knew or should have known of the libel. In applying the standard, the court held that because BookSurge did not “undertake to edit, review or fact-check any of its publications, it has no means or way of knowing whether defamatory material is contained within the works that it publishes.”
Under different facts, however, a Kansas jury in 2006 found another on-demand publisher, AuthorHouse, liable for defamation. Brandewyne v. Author Solutions concerned the book Paperback Poison: the Romance Writer and the Hit Man, written by the ex-husband of best-selling novelist Rebecca Brandewyne. The book, according to the lawsuit, made defamatory statements about Brandewyne, her parents and her husband.
At trial, Brandewyne put forth an internal AuthorHouse memo demonstrating its knowledge that the book was rejected by another publish-on-demand company because of concerns with libel. The jury returned a verdict for the plaintiff on all counts, awarding damages of $200,000 to Brandewyne and $10,000 each to her parents and husband.
A hearing on punitive damages was then held, where the jury determined that the defamation was “wanton” conduct by AuthorHouse, and the judge awarded $240,000 in punitive damages. In a written decision, the judge held that AuthorHouse ignored clear warnings of potential libel, finding that “[e]very employee involved in the decision making process ... had to have made a conscious decision to ignore a clear warning that the book was defamatory, or to pass the buck on to someone else.” He continued that a “responsible publisher would make some effort to screen the content of the book at issue in this case before accepting it for publication” and that its “failure to act when it had information that would have placed a prudent publisher on notice that the content of [the] book was harmful to the Plaintiffs.”
While the courts reached different conclusions in Sandler and Brandewyne, they can be reconciled by looking to the knowledge of the publishers as to the defamatory statements in each book. In Sandler, the court found BookSurge had no reason to know of the alleged defamation by virtue of its attenuated involvement in the publishing of the book. Meanwhile, the court in Brandewyne found much greater involvement by AuthorHouse in the production of the book, evidenced by an internal memo recognizing that another publisher previously rejected the manuscript.
For more information, contact:
Drew Shenkman
202.419.2443
drew.shenkman@hklaw.com
toll free: 1.888.688.8500
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