Even Conservatives Need the Help of the Activist Courts From Time to Time
A bunch of politically conservative authors are suing Regnery Publishing for business practices which artificially deflate the authors’ royalties. More specifically, the suit alleges the Eagle Publishing, which owns Regnery, “orchestrates and participates in a fraudulent, deceptively concealed and self-dealing scheme to divert book sales away from retail outlets and to wholly owned subsidiary organizations within the Eagle conglomerate.” Or as one participant in the suit told the New York Times, “Why is Regnery acting like a Marxist cartoon of a capitalist company?”
On one hand, there’s a part of me who takes a positive delight in the idea that people like Jerome Corsi, the fellow who co-penned Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry are finding their own royalties from such work swift-boated; karma works, people. But the other hand is the one that I use to sign my own royalty checks, and verily this hand cries for justice. So my inclination is to hope they have a good case.
The real question here — or at least what I think the real question is here — is whether the authors can show that the giveways and books sold through these books club and other Eagle subsidiaries represent lost sales in retail; i.e., that if the folks who got the books from the Conservative Book Club would have purchased the books at bookstores instead, had they not gotten them at book club rates. I think this is probably a tricky question to answer. Hell, I belong to the Science Fiction Book Club, and there are books I bought there that I wouldn’t have otherwise picked up (although if I end up liking the book, I buy the author’s next book in the bookstore). I very strongly suspect that there’s a very fair percentage of book club sales that don’t represent lost bookstore sales, simply from behavior like this.
But then, Regnery apparently gives authors a $4.25 royalty (on average) for a hardcover sold in a bookstore, and a single thin dime for books sold in the book club, so perhaps all they need to do is show that at least 3% of book club buyers would have gone to the bookstores in order to show lost profits. That might not be as difficult.
(I don’t know that Regnery is particularly screwing the authors with book club sales; incidentally, since I suspect all book clubs offer a royalty along those lines — if not an actual dime than still significantly less than in bookstore. In my last royalty statement I got about $200 in royalties for the SFBC book club version of Old Man’s War; at a dime a book that translates to a couple thousand books sold over those six months, which given my sales overall does not seem out of line. Don’t worry if you bought a book club version — I’m doing just fine, thanks, and overall I think the SFBC has been useful, rather than detrimental, to my career.)
This struggle over royalties is interesting in the case of books that these authors pump out, because they’re the sort that sell in a particular political moment rather than over time. It’s not as if very many people are queuing up now to read about Kerry and his swift boats, after all. Unlike fiction writers, these authors can’t hope that their back list will sustain them; they have to make their royalty money quickly or not at all, and people aren’t necessarily buying the books for the authors — these guys aren’t Rush Limbaugh or Ann Coulter — so there’s no promise that good sales will track from one book to the next. So in these cases, book club sales could represent a real hit relative to book store sales.
Ironically, Regnery could make the argument — in a realpolitik rather than legal sense, I suspect — that it’s more important for the conservative political cause to get the word out to as many people as possible by any means necessary, even if that means the author taking the hit himself; i.e., all those book club sales and newsletter giveaways and what have you are building the permanent conservative majority and what have you. But that does seem awfully collectivist. Likewise, there is snark to be had in the observation that conservative authors can hardly complain about Regnery’s practices when they are the very model of Bush-era corporate profiteering, which is to say the corporation vacuuming up all the profits while screwing its workers, in this case the authors. Welcome to the real world, boys, we hope you enjoy your stay.
But as I said, regardless of my snark level, I hope these guys can make a cogent case; authors have a hard enough time making money without publishers screwing them unnecessarily. I’ll be very interested to see what happens.
Update: in the comments, lawyer C.E. Petit suggests I missed the point and notes (excerpted here): “It’s not a question of substitution of book club sales by an independent book club for retail sales (and, even then, courts will ordinarily calculate the ‘loss’ by treating all sales from the club as if they had been retail sales). It is, instead, a question of self-dealing. What the authors are alleging is that the publisher’s parent purposely made retail sales difficult, but sales through the book club that it owns both easy and less expensive for the consumer. In other words, this is simple accounting fraud — ok, perhaps not so simple — rather than a substitution of vendors issue.”