This case involves a well-known author who had written and published numerous murder mystery novels. An editor of mystery anthologies entered into a publishing agreement with a publishing company, based in Idaho, to publish 12 original mystery stories in a mystery anthology. The well-known author and the editor had a series of talks about the author contributing to the anthology. The author agreed to write a story for the anthology and submitted a 107-page draft to the editor and after changes were made later, he submitted the final draft to the editor. The “sell sheet” that was submitted to book buyers contained the author’s name prominently displayed in bold letters on the book cover and also used the title of the author’s short story as the title of the book. The “sell sheets” implied that the author had written all the short stories in the anthology. The anthology did not contain 12 stories but only contained 5 short stories, including the one by the author. The author claimed that the book was being marketed contrary to his agreement with the editor and the publishing company and also claimed that the editor and the publishing company made it seem like the book was the author’s next stand-alone mystery novel. The author brought a lawsuit against the publishing company claiming that the typography of the 5-story book cover was misleading and that publication of the book was contrary to the publishing contract. Expert witnesses with specializations in crisis management and intellectual property (IP) were sought to opine on the issue.
Question(s) For Expert Witness
If a publisher has a book contract with an author for a short story in an anthology, can the publisher advertise the anthology as a novel by the author?
Expert Witness Response
The main problem with publishing the anthology in this case is that this would violate the Lanham Act because it would mislead consumers to believe that the book is actually the author’s next novel. The Lanham Act prohibits a publisher from using false advertising, i.e. using an author’s name on a work where the author’s true participation or contribution is misrepresented. Even though the proposed cover of the anthology was not literally false, it was likely to confuse book buyers. In this case, the publishing company was at fault because they originally contracted with the author for him to contribute to a 12-story anthology, not a 5-story anthology. The publishing company was also at fault because they intentionally went ahead and started advertising the anthology as the “new book” by the author and not advertising it as the “newest anthology” edited by the editor, according to the publishing contract. Since advance orders of a book like this by a popular author (advertised with the author’s name) might be at least 10 times the total sales of the editor’s most successful previous anthologies, the publishing company most likely intended to deceive the public by prominently featuring the author’s name on the cover.
About the author
Michael Morgenstern
Michael is Senior Vice President of Marketing at The Expert Institute. Michael oversees every aspect of The Expert Institute’s marketing strategy including SEO, PPC, marketing automation, email marketing, content development, analytics, and branding.
