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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!
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