Imagine yourself in this situation: You discover that a highly plagiarized version of a book you researched, wrote, and published has been published under another author's name in the United Kingdom. The author copied many passages from your book verbatim, used your same book structure, and even used your same title. Nowhere in her book are you identified as the source. You assume at first that an unscrupulous writer slipped a plagiarized book past a lax editorial staff that did not check Bowker's Books in Print and did not ask the author for copies of her permissions to quote. But then you notice that the publisher's name seems familiar. You examine your office records and find that an acquisitions editor with this publisher ordered a review copy of your book several years earlier. The publisher initiated the plagiarism, not the writer! After you calm down from feeling outraged, you realize the plagiarism is very extensive and the party with "deep pockets" is the main perpetrator. You and your associates assume you will collect a big settlement.
Punitive Damages & the British Courts
Given this scenario, what is your estimate of the amount of punitive damages (in dollars) you imagine you might collect in your lawsuit in Britain?
- a. zero
- b. $25,000 or more
- c. over $100,000
- d. over one million dollars
Brace yourself. The correct answer is zero. I was shocked to learn that British courts give awards only for actual damages. They do not award punitive damages. Even worse, if you sue for punitive damages, they may order you to pay all of the defendants' legal expenses. My case raises serious concerns for all US publishers and authors because it is a systemic problem in British publishing, not a matter of an occasional amoral writer. The British courts have created a situation where major London publishers can knock off books copyrighted in the US knowing that if they are caught their only risk is having to pay out the amount of revenue they took in.
Some History on The Survivor Personality
Here's a summary of the history of my book and the events that lead to the discovery of the plagiarism:
- In 1993, my publishing company, the Practical Psychology Press, published The Survivor Personality, a nonfiction, self-help book I spent over thirty years researching and developing.
- In 1994, I had my book on display at the Publishers Marketing Association booth at the annual American Booksellers Association conference. Kathy Rooney, an acquisitions editor with Bloomsbury, a large London publishing house, saw my book at the PMA booth and requested a review copy. When Rooney's request was forwarded to my office by PMA, we quickly airmailed a copy to her in London.
- In 1995, The Survivor Personality was acquired by Perigee, a Berkley Books imprint. The book was edited, revised slightly, and published in September, 1996.
- Berkley sold the UK rights for The Survivor Personality to Thorsons, a London publisher. A few weeks later we received a request from Thorsons asking if they could retitle the book How to Thrive and Survive in Any Life Crisis. The editor said they discovered there was already a UK book titled The Survivor Personality, authored by Patsy Westcott, and wanted to avoid confusion.
- A friend in London bought a copy of Westcott's book and mailed it to me.
What I Discovered
As I stood in the post office looking through Westcott's book, I felt angry and distressed seeing page after page of my original work copied verbatim. She used my same book structure and even copied quotes from people I had interviewed. Although she quoted other experts, I was not acknowledged anywhere.The book was copyrighted in Patsy Westcott's name in 1995. Under the copyright notice I saw the statement: "The moral right of the author has been asserted." Later I learned that such a statement goes beyond copyrighting a particular written work. It is a declaration that the author is the originator of the concepts and ideas that the written work is based on. Westcott not only plagiarized my book, she claimed to be the originator of concepts I created and researched.
When I contacted the Berkley legal department, one of their attorneys, Gina Anderson, gave me some very good news. She said that when they acquired the rights to my book they also assumed the obligation to defend their rights. Hooray! The case will be handled by a New York publisher's legal department at no expense to me.Gina Anderson sent a demand letter to Bloomsbury in January, 1997. In her letter she said Westcott's book "is one of the most flagrant and extensive cases of plagiarism, copyright infringement, passing off and violation of an author's . . . . rights that we have ever seen. Most disturbing, there is powerful evidence that the taking was intentional and that in addition to Patsy Westcott, Bloomsbury played an active role in the taking."
The British Publisher's Response
The Bloomsbury attorney responded immediately. He acknowledged that Westcott's book was plagiarized from mine, but claimed it wasn't Bloomsbury's fault. He said Kathy Rooney liked the idea of my book, but felt it was "too American for British readers." He said Rooney contacted Patsy Westcott, a London-based writer in the self-help/psychology field who had done a previous book for Bloomsbury. He said Rooney gave Westcott my book and "commissioned her to do a book of a similar nature for the British market." The Bloomsbury attorney said that when Westcott turned in the completed manuscript Rooney was on maternity leave. He said the Bloomsbury editors who took her place did not know about my book and had no reason to suspect that the manuscript turned in by Westcott was based on my book. He said, "Our clients relied not only on the experience of the author, but also on the fact that the author would have been aware under the terms of her warranty that she was obliged to produce a work that was in no way whatever a violation or infringement of any existing copyright." In other words, the spin on the plagiarism by Bloomsbury attorney was that the plagiarism had resulted from several innocent mistakes, mostly the author's fault, not from intentional actions. He also would have us believe that when Kathy Rooney returned from maternity leave she never looked at the book to see how it turned out. Westcott never responded to the demand letters Berkley sent to her. According to the Bloomsbury attorney, Patsy Westcott's attorneys told him that Westcott believed Bloomsbury had acquired the rights to my book and the editor wanted her to rewrite the book as her own original work. Anderson was delighted to have a written admission of guilt from the Bloomsbury attorney. She told me over and over that if the case went to court we would only have to prove damages.
Initial Settlement Offers
Bloomsbury immediately recalled all the unsold Westcott books and ordered them destroyed. The Berkley attorney requested a settlement offer and told me it should be negotiated quickly. Bloomsbury's attorney reported that Bloomsbury sold about 2,200 copies of Westcott's book for a gross income of 5,925 pounds sterling. He offered settlement for actual damages of 5,000 pounds (about $7,500). This was much lower than what Anderson said we should get and was unacceptable to me. The negotiations dragged out for four months. Bloomsbury's final settlement was 6,000 pounds. I told Anderson that this amount was unsatisfactory. The plagiarism was extreme and had been initiated by the publisher, not the author. I said that if she could not get a better offer I wanted her to file a lawsuit. It was then that I got another shock. Anderson informed me that Berkley would not sue Bloomsbury because they had an ongoing professional relationship. They sold books to Bloomsbury and vice versa. She said she was not going to sour their relationship with a lawsuit. After four months of her telling me "if we go to court . . . ," I now learn that Berkley will not go to court. Because I would not agree to accept the 6,000 pounds settlement, Anderson detached Berkley from the case. She said she had protected Berkley's interests because the Westcott book was recalled and destroyed. She said if I wanted to sue Bloomsbury, I would have to proceed on my own.
A Settlement through a Private Attorney
I retained a private attorney in London and said I wanted to file a lawsuit for a very high amount for punitive damages. After looking at the facts of my case my London barrister said I should accept Bloomsbury's settlement offer. She explained that British courts rarely award punitive damages and actively discourage such suits by requiring the plaintiff to pay the defendant's costs if what they award is even one pound less than the settlement offer. In my case, she said, I would certainly be awarded actual damages of an amount equal to what Bloomsbury took in from book sales (5,925 pounds). But if the court accepted the explanation given by Bloomsbury's attorney that this was merely a matter of several mistakes, and I had turned down their offer to settle for 6,000 pounds, I would have to reimburse Bloomsbury and Westcott all of their legal costs! A lawsuit, even though successful, would place me at serious risk of having to pay out thousands of pounds more than my award. When presented with this reality, I decided to let prudence prevail over principle. My London attorney negotiated a settlement slightly higher than what had been offered. She also succeeded in getting Bloomsbury to publish an apology to me in The Bookseller, the British equivalent of Publishers Weekly. Their published apology (I approved in advance) included the statement: "Ms. Westcott and Bloomsbury deeply regret that Dr. Siebert was not acknowledged in the book and take this opportunity to acknowledge Dr. Siebert's work, copyright, and moral rights in his book The Survivor Personality."
Noting a Similar Case
About this time, a local physician told me he had an experience similar to mine. Derek Lipman, an ear/nose/throat specialist, said he wrote a book in 1990 about how to stop snoring. In 1995, he discovered that a plagiarized version of his book had been published by Harper-Collins in London in 1992. Lipman showed me copies of the author's response to the charge of plagiarism. The author, Liz Hodgkinson, admitted that she had a copy of Lipman's book when she was writing hers. She said, "It contained useful information of a factual nature which Dr. Lipman had assembled from existing research and material: it did not originate from him, but was in the public domain." Her position, in other words, is that whatever physicians learn in their medical training is in the public domain, and since a book a doctor writes about a subject is public domain information, it can be used by any writer wanting to cover the same subject without attribution to the doctor. Hodgkinson claimed she had conducted extensive interviews of snoring experts in Britain and that their two books were alike because: "there is nothing else to say on the subject, so of course they are similar." Lipman contacted seventeen of the most well-known medical specialists on snoring in England. None of them said they had been interviewed by Hodgkinson. Only one recalled a woman interviewer telephoning to ask several questions. Harper-Collins withdrew their snoring book from distribution and reimbursed Lipman his legal costs while stating: "We strongly deny that any passages of Ms. Hodgkinson's book have been directly reproduced, or paraphrased, or that the format and substance of (Lipman's) work has been followed or copied."
Many Questions Raised
These two cases leave us with numerous unanswered questions:
- If two authors living in Portland, Oregon, have had plagiarized versions of their books published by major British publishing houses in recent years, how extensive is this activity in Britain?
- What can we do to find out how many books by US authors have been plagiarized in the UK?
- How many PMA members have sent books to UK publishers to consider for acquisition, and how can small, independent publishers keep track of what happens to our books in the UK?
- Has this happened to any other PMA members? Has anyone had a book plagiarized?
- How can US book publishers and authors protect themselves when British courts make book plagiarism in the UK a low risk activity?
Commentary by PMA General Counsel
What Dr. Al Siebert discovered through harsh experience is something that attorneys already know - the law is an imperfect means of obtaining justice, and sometimes even a well-founded claim is not worth the costs and risks of litigation. As Dr. Siebert learned, the problem is even worse when an alleged infringer is located abroad. The good news is that United States law is somewhat more protective of copyright owners than British law. When a registered work is infringed, the copyright owner is entitled to seek "statutory" damages, that is, a specified range of damages that can be awarded by the court without proof of actual damages. The maximum award of statutory damages for willful copyright infringement is $100,000 per act of infringement. Perhaps even more important is the right of a successful litigant, whether plaintiff or defendant, to recover attorneys fees, which means that a vigilant copyright owner may choose to file a lawsuit for infringement of a registered work even if the potential damages are modest. (One practical lesson, by the way, is that newly published works should be promptly registered since these important remedies are available only if the work that was infringed was registered within 90 days after first publication or prior to the act of infringement.) The bad news is that copyright law and procedure is not always so protective of authors and publishers in other countries around the world-and Great Britain is far from being the worst offender! And, whether the aggrieved author or publisher is here or abroad, litigation is invariably expensive, risky, burdensome, and maddening!