Legal pitfalls in literary circles

Lawyers regularly find themselves buried up to their necks in books as they attempt to track precedents and legislation when preparing cases. But while some legal publishers make a good living supplying books to the profession, authors and publishers can often find themselves at the sharp end of the law too.

What follows is The Lawyer's Guide to Literature – a brief, at-a-glance guide to how publishers and authors can and do come a cropper in the legal minefield.

L is for Libel – the easiest way to empty the contents of a publisher's coffers into those of a solicitor. As Amanda Craig, who wrote A Vicious Circle (which had to be amended when a proof of the book was circulated in literary circles), found out, pre-publication amendments are cheaper than publishing and being damned (or sued). But more of that below…

I is for Internet – when books are banned by court action, the law is now regularly circumvented by placing their texts on the World Wide Web. Take, for example, the account written by the doctor of French president Francois Mitterrand, The Big Secret, which was banned by the French courts.

In the book, Dr Claude Gluber, Mitterrand's personal physician, revealed that the French President had suffered from cancer for most of his 14 years of presidency, a condition the doctor had helped conceal.

The doctor received a suspended prison sentence in June and was fined for breaching his duty of professional confidentiality under France's tough privacy laws. The book was withdrawn from sale by its publishers after selling 40,000 copies in less than a week.

But you can circumvent the French court's decision by downloading the text of the book in English from the Web.

T is for Titles and Trademarks. Both were at the centre of a recent legal dispute over an unauthorised biography of the chart-topping pop group Wet Wet Wet.

The distribution of the book, Wet Wet Wet – a Sweet Little Mystery, was initially banned after the group's marketing company, Bravado Merchandising, claimed the group's trademark had been breached.

A Scottish court granted an injunction against publication of the book last year, siding with Bravado Merchandising's argument that the use of the group's name in the book title could contravene Wet Wet Wet's trademark.

But Scottish publisher Mainstream did not accept that Wet Wet Wet had a cut-and-dried case. It pursued a full hearing, and this time Lord McCluskey ruled that the use of the Wet Wet Wet name did not constitute a breach of trademark. It would be a “bizarre result”, he said, if trademark legislation prevented book titles using the names of companies or products in the titles of books written about them.

Quite right. All fans of the unauthorised, muck-raking biography genre the world over owe a debt of gratitude to Lord McCluskey's decision.

E is for Enquiries – helping the police with theirs, that is. And this was precisely the situation faced last July by former soldier and author Paul Bruce (not, as will become obvious, his real name) following publication of The Nemesis File: The True Story of an Execution Squad, published by Blake Publishing.

Bruce's arrest, ahead of the planned publication of the paperback edition of the book in September, followed claims of his involvement in an SAS death squad allegedly responsible for killing more than 30 IRA suspects in the early 1970s.

There is a long and venerable history of published works concerning the murky goings-on and dastardly deeds in Northern Ireland over the years.

But 'Bruce', an unnamed man from Weston-Super-Mare, did not become a martyr for his writing. He was released without charge after questioning by the RUC, an action which seemed likely to consign the book to the fiction rather than factual bookshelves.

He did not get any backing for his tales from Sinn Fein either. Rather than seeking to make political capital over Bruce's account of a death squad, the organisation described the claims as “totally outlandish”.

R is for Random House, which lost out in its action last year in New York against actress and novelist Joan Collins. Collins, you may recall, was accused in court of writing “drivel” by the publisher, which sued the actress and writer for the return of a $1.2 million advance.

The week-long trial proved an embarrassing own goal for the publishing giant, and provided an enlightening look into the world of celebrity publishing. Joan, despite the courtroom criticisms of her prose, emerged with her dignity, makeup and advance intact. Naturally.

A is for Allason – Rupert Allason – the litigious Conservative MP for Torbay and author of books on the spying and intelligence world, who this year finally lost a big libel action, in this instance against the Daily Mirror.

Allason, who writes under the pen name of Nigel West, has been involved in a number of legal disputes concerning both his political and book-writing career.

But his works have also proved the centre of much legal action. In 1982, there was an attempt to ban the publication of his book A Matter of Trust. Baron Rothschild threatened action over Allason's book Molehunt later in the 1980s, while British Intelligence agent Greville Wynne also took action against the publishers of Allason's book The Friends.

Despite Allason's setback against the Mirror, the author has had a good track record of conducting his own actions and generally emerging victorious – and wealthier.

T is also for Traitor. And even traitors can claim the right to money earned from their memoirs, according to yet another embarrassing case pursued by the Attorney General against a former British intelligence agent earlier this year.

George Blake, the MI6 agent who spied for the Russians, was caught, escaped from a British prison and fled to Moscow, clearly had some interesting tales to tell the British public in his book No Other Choice. And it is not as if there was anything in the book, published by Jonathan Cape, which the Russians did not already know.

Nevertheless the Government seemed intent in getting their claws on £90,000 held in trust for Blake for writing the book, which had been frozen under a previous court order.

Unfortunately, arguments supporting the Government's right to pocket the money were not positively received in court. Blake gets to keep his money. He will not, however, be collecting it in person.

U is for Unauthorised. Biographies, that is. And although cricketer Imran Khan won his recent defence of a libel action, brought by Ian Botham and Allan Lamb, he could have saved himself a few sleepless nights had he not decided to co-operate in part with an unauthorised biography of him.

Khan's original comments about ball tampering came in a book being written by journalist Ivo Tennant and published two years ago.

Botham and Lamb's critical reaction to the admissions in the book led to a series of tit-for-tat interviews which culminated in the libel action in which many predicted Khan would be hit for six.

In the end, of course, it was Lamb and Botham who saw the case slip through their fingers and they were landed with costs of around £500,000.

R is also for the Restrictive Practices Court and Salman Rushdie. It was the threat made by the Office of Fair Trading to refer the Net Book Agreement to the court last year which led to the eventual abandonment of the NBA.

Competition law was once deemed to be the publishers' friend in supporting the price-fixing cartel. In 1962, the Restrictive Practices Court accepted that, although the NBA was a price-fixing agreement by book publishers, it was in the public interest and did not fall foul of competition law. It ruled that retail price support helped maintain the revenues of many small and specialised book outlets, and ensured worthy but unpopular novels were widely available to the public.

But the NBA is no more. And the result has been a wave of very reasonably priced car atlases and cut-price airport novels. But the impact on small bookshops and the production of minority interest books is not clear.

Yet Salman Rushdie still claims there are “too many of them”– new novels, that is.

E is for End. The point writers hope readers get to. You have just reached it!