If you are searching for the a New York Times bestseller on Amazon, you may want to double check what you are purchasing.  It is not uncommon for a book search to result in a series of titles that are strikingly similar to the novel that friends are telling you is “a must read.”  Prospective readers may stumble across I  Am the Girl with The Dragon Tattoo or Twilight New Moon, but may not realize these are not of Stieg Larson and Stephenie Meyer authorship–that is, until the book arrives at their doorstep.

Instead, the publisher of these “spam” books is CreateSpace, which is a service that allows individuals to publish their own works and have access to free distribution.  Though surely a valuable asset for independent authors and upstart novelists alike, it is also proving to be a hotbed for penned works that attempt to capitalize on the success of other literary series.  What really makes this interesting is that Amazon actually owns CreateSpace, providing the free distribution through its online retail stores.  In return, Amazon receives 50% of income from these sales, which is significantly more than it receives from sales of the original works.

This begs the question, to what extent–if at all–do these works infringe upon the rights of publishers and authors?  Well, for those literary series that have established a trademark, like Twilight, a claim of trademark infringement may have merit.  Because these marks are highly distinctive and unique, they bear the greatest degree of protection.  Furthermore, the backbone of trademark law is consumer confusion, which is precisely how these books are selling.  One must only look at the Amazon reviews for I Am the Girl with the Dragon Tattoo to see evidence of this confusion: “This is a spam book that has nothing to do with the original. The author is nothing but a scumbag who deserved to be sued.”

Because Amazon is enabling the publication and distribution of these infringing works, it is possible that they could be vicariously liable for the infringement.  Though trademark protection does not have the statutory framework for secondary liability like copyright law, courts have in some instances applied these agency principles to trademarks.  Unless Amazon takes measures to prevent distribution of these works, it does not seem unreasonable for a court to apply such principles here.

For those works that are not trademarked, the authors and publishers may be out of luck.  Copyright Office regulations, codified in the C.F.R., expressly exclude titles of works from copyright protection.  As the body of these works have no relationship to the originals, they likely cannot be considered derivative works, and a copyright infringement claim is without merit.  Perhaps this lack of recourse will cause publishers to pressure Amazon to crack down on the literary spam, or maybe Amazon continues to profit from CreateSpace initiatives.  But whatever the resolution, just make sure you double check your shopping cart before you check out!

-Sam Beutler

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11 Responses to Read with Caution: Don’t Judge a Book by Its Cover

  1. Andrew Farrell says:

    Considering past rulings concerning the sale of counterfeit goods on eBay, it seems there is a good chance that Amazon will face allegations that it is vicariously liable for trademark infringement. One can imagine that some of the scam books with titles similar to those of famous works also have covers that include confusingly similar symbols and visuals. In the 2010 case of Tiffany v. eBay, the Second Circuit applied the standard for contributory liability found in Inwood Laboratories, Inc. v. Ives Laboratories, Inc. As applied, eBay would have been found contributorily liable for trademark infringement if it supplied counterfeit goods to third parties while it had knowledge or a reason to know that the counterfeits were infringing and failed to curtail sales of the infringing products. The court let eBay off easy, stating: “For contributory trademark infringement liability…, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods.” eBay always removed postings of counterfeit items once it became aware of them, and implemented a comprehensive screening system to try and fight counterfeits on its site. Ultimately, eBay was deemed not vicariously liable for infringement.
    Amazon seems to be doing things a bit different than eBay. Not only does it have knowledge that the books published by CreateSpace are not originals, but it is facilitating their distribution through an explicit agreement. Thus claims of trademark infringement may be more successful against Amazon than they were against eBay.

  2. Tracy Hancock says:

    I suspect that this won’t hurt Amazon in the long term. I agree that it stinks to get “tricked” into purchasing one of these books, but I personally wouldn’t be upset with Amazon if “I am the Girl with the Dragon Tattoo” showed up on my doorstep. I’d mostly be mad at myself for not paying close attention to what I was ordering. That being said, it does seem like a pointless thing for Amazon to do. Presumably, most everyone who purchases these “imposter” books was going to purchase the real thing from Amazon anyway. I wonder if Amazon is getting a larger chunk of the sales profit off these impostors…

  3. Stephen Josey says:

    While this ploy may be a money maker for Amazon in the short run, I don’t think that partnering with CreateSpaces will end up being the best business decision. Personally, if I was “tricked” into buying a book I thought was from one author and ended up with something completely unrelated, I’d stop purchasing from Amazon altogether. It seems that by employing these tactics Amazon stands to lose quite a bit of brand loyalty.

  4. Joel Slater says:

    Amazon is profiting off this now, but I wonder what it does for them long term. One of the perils of e-commerce is not being able to inspect the product before you purchase it. Presumably, much fewer people would fall for this scam if they got to actually pick up and flip through the book before purchasing it. I wonder if people who get burned by these sales quit using Amazon entirely.

  5. Colton Cline says:

    Great post, Sam. As one that is uninitiated into law surrounding the publication of literature, I am curious to what extent the actual content of the book must be similar to the “original” work. That is, if there were a book entitled “Twilight New Moon” that was about vampires, but in no way mirrored the story found in Meyer’s books, would it be actionable? Surely there are issues mirroring this one in the traditional publishing world. After all, there are only so many titles for books. It would be ludicrous to punish a musician for having the same album title as another musician. These similarities pop up all of the time. I suppose it becomes a question of degree.

  6. Michael Dearington says:

    Great post, Sam. It shocks me that Amazon would invest in a company such as CreateSpace that may compete with its non-spam works of original titles. Then again, given Amazon’s aggressive marketing strategies (see its underpricing of e-Books), I’m sure it has some clever angle on this. Perhaps Amazon plans to use it as a valuable complement to Amazon’s e-book model, and the “spam-books” are an unintended consequence of allowing this freedom. Amazon may be incentivizing independent authors whose works are so often denied by the major publishing houses. All it would take is a couple big publications, and Amazon would see a windfall with very little risk.

  7. Collins Kilgore says:

    You can see the same thing on Netflix. They feature low-budget productions quite similar to popular movies. For instance, there’s the animated movie about a panda that always wanted to practice kung fu: “Chop Kick Panda.” And, for the adults, there’s “I Am Omega,” a story about the last survivor of a zombie apocalypse, living alone with his dog in Manhattan and trying to find a cure (not starring Will Smith). The funny thing is, I’ve heard that some of these movies are actually good. When exams are over, I may watch a couple and let you know.

  8. Susan Reilly says:

    It is surprising that a company like Amazon would have such a lax policy in regards to policing these kinds of practices. It seems like a prime opportunity for courts to make an example of Amazon by holding them liable for enabling this kind of trademark infringement.

  9. Erin Reimer says:

    While, at first, I was incredibly surprised at the lack of recourse such authors might have based on the copyright exception, I now think trademark provides a completely adequate remedy. I can’t imagine that these impostors would bother using the title of a book that was anything other than wildly popular; and, because trademarks don’t need to be registered in order to be protected (they need only be “used in commerce”), it seems to me that trademark law is an appropriate solution – especially considering the Initial Interest Confusion doctrine that Marina suggested above.

  10. Lauren Gregory says:

    I know trademark law accounts for free-riding off of the the goodwill others have developed in the public marketplace, but I have to wonder if there might be an entirely separate cause of action in tort centered around free-riding. The tort of misappropriation has been used in the context of news reporting (which, like book titles, is not covered by copyright). It stems from unfair competition principles and allows parties to sue under state tort law based on the idea that it’s unfair if
    one party invests time, effort, and money into developing a product, and then a second party comes in and either steals the work product or tries to pass off their product as one coming from the initial innovator, essentially free-riding off of that upfront investment. Perhaps this would be an option for authors who haven’t yet developed a brand recognizable enough to allow for recovery under the Lanham Act?

  11. Marina Visan says:

    Wow, how sneaky! I guess the question that also comes to my mind is how successful these “impostors” actually are. When receiving these books at their doorsteps, do consumers immediately return them or start reading in the hopes that they’ll enjoy these substitues? I can’t imagine it’s the latter, but why would they continue such scams if customers simply returned all mistaken purchases? Furthermore, it’s interesting you mention the customer reviews, because I think they are extremely helpful when purchasing anything online. Perhaps these situations could be analyzed under the initial interest confusion doctrine, as consumers might be initially confused when quickly skimming the title of the book, but by doing just a tad more research (such as viewing customer reviews), they realize these books are not what they were searching for. However, initial interest confusion usually applies only when the confusion dissipates before the purchase is made, so it would probably come down to what exactly is expected of a reasonable online consumer and whether viewing customer reviews is part of that (which I doubt).