Let's say hypothetically that I'm a professional writer. Paul Shaffer, the bandleader for David Letterman's late-night talk show, comes to me and says: "Rog, I've always wanted to publish a book, even though I'm not a writer, I'm a musician. Actually, I tried my hand at this a number of years ago and produced a manuscript, but I couldn't get a publisher interested. I have lots of stories to tell about the people I've met and the experiences I've had in the entertainment business, but I'm so busy now that I need your help. You've had experience helping other people write their show business memoirs, so I'd like to give you all my material, all my recollections, and you can shape them in into a book. You won't be my ghostwriter; you'll be named on the cover of the book as my co-author."
And so, my name goes on the cover of the book, "We'll Be Here for the Rest of Our Lives" by Paul Shaffer with Roger Bruce Feinman." (In real life, Shaffer used a professional writer, David Ritz, as his co-author.) Now, I may not know Paul Shaffer as more than a mere acquaintance and ad hoc business partner. I can't vouch for the accuracy of the material he's given me; I have to take his word for things. But I'm earning money by making Shaffer's prose shine and helping him live his dream of writing and publishing a book. Did I forget to add that Paul Shaffer and his corporation own the copyright to We'll Be Here For the Rest of Our Lives? I was paid for my contributions, but the book belongs to him. For people who are interested in this sort of thing, it's both an entertaining and informative book. Shaffer's many anecdotes include his relationship with Jerry Lewis, the actor, director, and comic genius. Let's bring that aspect of the book front and center.
Several years pass, and I realize, "What am I doing helping other people write their books? I could write one all by myself!" So, I write my own show business book -- a biography of Jerry Lewis. My name appears on the cover as sole author. Now, Random House, knowing that I have a proven track record as a writer, decides to publish a competing book about Jerry Lewis. In a negative comparative advertising campaign for their book, Random House lifts a quote about Lewis from the earlier book that I wrote with Paul Shaffer and attributes that quote to me without telling their audience where it came from. In other words, neither Paul Shaffer nor the book, We'll Be Here For the Rest of Our Lives are mentioned in the ads. They quote me as having said about Lewis, "All Jerry wants is a dollar more." (By the way, that's an actual quote from Paul Shaffer's book.) Sounds cheesy, doesn't it? The way they lift that quote out of context, it appears as though I'm trashing a great show business icon. To reinforce their advertising message, Random House somehow manages to find a photograph of me and, without asking my permission, they stick my photo next to that quote in their advertisements. They identify me simply as "author". To readers of the ad, it looks as though I have written a book that demeans Jerry Lewis, which was neither my intention nor an accurate reflection of my stated views about him.
"Wait just a gosh darn minute! You're sticking what Shaffer said about Lewis on my forehead and telling people that's what I said about him. 'Don't buy Feinman's book! It's not true! It's an insult! Buy our Jerry Lewis book instead!"
Now, that is confusing. First, it's confusing because the ads don't tell the reader where the quote came from. Second, it's confusing as to the source of the quote about Lewis because, in the earlier work, I was essentially Shaffer's mouthpiece; yes, I helped him; yes, my name was on the cover of his book as the co-author; and yes, that's a verbatim quote from the book that Shaffer and I worked on together. However, I wasn't the guy who actually said what appears at first glance to be something terrible about Jerry Lewis. Third, by implication, the ads misrepresent the nature, characteristics, and qualities of my own current book about Lewis -- the one that Random House is afraid of and trying to beat -- and at the same time constitute a false and misleading attack against my individual work. I never meant to denigrate Lewis then, nor did I, nor have I done so now . The ad misrepresents what I (we) said about him, and it misrepresents the laudatory nature of my new book. Sales of my current book will suffer because people won't want to read it.
Section 43(a) of the Lanham Act provides in relevant part:
"Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--
"(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
"(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."
15 U.S.C. § 1125(a) [15 USCS § 1125(a)].
In 2003, the Supreme Court of the United States decided that the word "origin" in sub-section (a) of the statute could not be applied to a case in which communicative products, such as film documentaries, had lost their copyright protection and fallen into the public domain. Once in the public domain, an artistic work might be subjected to successive adaptations, condensations and revisions, so as to make questionable the attribution of authorship. Such loss of copyright diluted a party's right to claim authorship of an artistic work, making it difficult to trace, and therefore made misrepresentation of authorship a problem of (in the words of Justice Scalia) "search(ing) for the source of the Nile and all its tributaries". But that is not our case here. Random has attributed a quote from a copyrighted book to a sole "author" who was actually only a "co-author" (and not the copyright owner) of another book, deliberately omitting any mention of that source product, and in a way that also misrepresented the nature, characteristics, and qualities of my work.
Again hypothetically, Random House defends itself:
"We took the Feinman quote in our advertising campaign directly from the earlier book that he co-authored with Paul Shaffer. True, we did not mention the title of that book and Shaffer, but that is of no consequence. Have you never heard of Google? Amazon? The truth is out there for people who are willing to look for it. The fact that our own book does not reproduce the same quote in text is also irrelevant. The ads themselves are relative to the subject matter of our own book about Jerry Lewis. They indicate to the prospective buyer what s/he may expect from purchasing the book. Thus, the ads cannot be deemed false or misleading, and there can be no liability under the Lanham Act."
Let's look at this hypothetical situation from slightly different angles: Does the fact that, five years ago, my name appeared with someone else on the cover of a book signify that we agreed with each other on all points, or that I adopted and agreed with every single statement that was contained within it? Even if your answer is yes, does that entitle a competitor to lift a statement out-of-context and attribute it to me alone without any indication of where he found it, i.e., his source? Now let's add a new wrinkle to the problem: Suppose that We'll Be Here For the Rest of Our Lives displayed not one but two separate copyright notices -- Paul Shaffer's bore the dates 2000 and 2009, mine bore only the date 2009. Clearly, we did not write that book together at the same time. Is it easily conceivable that two authors having limited time to spend simply decided to divide the labor between them? That they each wrote separate portions and copyrighted them separately? What if Shaffer had supervisory control and final editorial approval of the contents? Would a consumer reading Random House's ad for its Jerry Lewis book be entitled to that information when deciding which Jerry Lewis book to spend his/her money on? And, if the reader of the ads is left with a misleading, negative impression of the nature and quality of my work as a solo writer, is the Random House ad campaign underhanded in concealing that information from the prospective consumer?
Finally, I don't know where they got that awful photograph of me. They never asked my permission. It was some sort of casual snapshot taken by an amateur photographer. I hadn't shaved. My hair was unkempt and needed trimming. It makes me look as though I'm grinning like an idiot while dissing Jerry Lewis. What gave them the right to capitalize and trample upon my personality -- including my commercially valuable image -- in an advertisement to sell their book?
By now you may be thinking, "what does this have to do with the assassination of President Kennedy?" This is the story of how a real-life lawsuit over an advertising campaign for a book about the Kennedy assassination exploded into a confrontation over the truth or falsity of the Warren Commission Report, how a group of federal judges desperately fought to prevent that lawsuit from ripening, and how, with that objective, they managed to circumvent the core issues that I have managed only to introduce. It's about how a book favoring the Warren Report was promoted, while its counterpart, a book arguing that the case was not closed after all, was suppressed with the official blessing of the federal judicial branch of government. It will all unfold during the coming weeks and months. For now, let's chew on these questions about book promotion a bit and we'll pick up with Part 2.
