So sue me... please!
PUBLISHING A BOOK has always been a risky prospect, with success all too often dictated by events beyond an author's or publisher's control: a glowing review, selection by a book club, an invitation to appear on radio or television.
But there's another path to literary success, at least for a lucky few: litigation. Paradoxically, a lawsuit, especially a flimsy one, can be a boon to a book's fortunes. And increasingly, some writers and publishers admit to hoping they'll attract one.
Just last week, The New York Times devoted precious space to a small, independent publisher that came under legal threat. Last year Soft Skull Press, whose "How to Get Stupid White Men Out of Office" hits shelves this week, received a cease-and-desist order from publishing giant HarperCollins, which cited trademark issues involving its bestselling Michael Moore title, "Stupid White Men" (2002). Just before the Times article appeared, HarperCollins rescinded the threat, but the story remained a publicity coup for the scrappy Brooklyn-based publisher.
"They had no case, and it was stupid on their part, but it worked for us," said Soft Skull publisher Richard Nash. "How often does someone like us get into the business section of the Times?"
"I would love a big public figure to try to sue us, because it would go nowhere, and at the end of the day it would create incredible amounts of publicity value," said Neil Ortenberg, a 23-year publishing veteran who is currently vice president at Avalon Publishing, purveyor of contrarian political titles.
Late last summer, the liberal wag Al Franken's "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right" (Dutton) scored a publicity windfall when Fox News requested an injunction against Franken and his publisher for using the phrase "Fair and Balanced" (the Fox News slogan), as well as a picture of commentator Bill O'Reilly, on the book's cover. The suit was laughed out of court -- and Franken's sales skyrocketed, with 22 printings to date and more than 1.1 million copies in print.
"It's hard to know how [`Lies'] would have sold, but it certainly wouldn't have sold a million copies," said Lisa Johnson, executive director of publicity at Dutton, which pushed up the release date of the book in order to benefit from the suit.
"The rest of us looked on in astonishment and envy at the lawsuit," recalled New York Observer columnist Joe Conason, author of "Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth." "Everyone who wrote a book that fall wished they had been lucky enough to have Fox sue them."
Of course, litigation can be a double-edged sword. Most small and even medium-sized publishers know that defending even a frivolous legal action could put them out of business. "We put a lot of energy into the vetting process for books we believe have some risk of libel issues," said Dan Simon, publisher of Seven Stories Press.
"I have seen small publishers driven out of business by litigation costs," said Alan Kaufman, who was senior vice president and general counsel of Penguin Group for more than 20 years. "In general, you cannot sell enough books to cover the litigation costs.
"Ironically, Soft Skull itself is an example of how treacherous the legal process can be. In 2000, before Nash became its publisher, the small press was almost ruined as a result of legal actions stemming from their publication of "Fortunate Son," an unauthorized biography of George W. Bush.
"If a legal problem is handled professionally, it gives you more opportunity to help the book," says Nash. "But if you're completely shooting from the hip, you could run into deep, deep trouble. Legal stuff is a gun that can blow up in your hand, so you need to know what you're doing when you're holding it."
Christopher Dreher is a writer living in Wayland.
