Monday, August 2, 2010

Joy Berry, Erotica Author Who Knows Kids?

Q: What right does one author have to stake sole claim on an author name?

A: Quite a lot, if you have the funds to hire a lawyer to intimidate the other author.

Last Friday, I received a threatening letter from a lawyer in New York City representing Joy Berry of Joy Berry Enterprises. The name Joy Berry was unfamiliar to me, but after a quick look I realized she was one of the 7,000+ authors publishing an ebook at Smashwords. Her specialty is erotic fiction.

However, the lawyered Joy Berry was a different Joy Berry, and she was upset that an alleged imposter was trading on her good name to hawk erotica ebooks. Huh?

I poked around and learned the lawyered Joy Berry is a parenting expert whose web site marketing slogan is "Joy Berry Knows Kids." She has an interactive app called, "I Love Potty Training."

I can understand why she wouldn't want Google searches for 'Joy Berry potty training' showing up alongside Joy Berry erotica. But what I don't understand is why one author's fans would ever cross paths with the other's. The erotica author doesn't write about children or parenting, and the children's author doesn't write erotica.

Long story made short, the potty-mouthed letter accused the erotica author Joy Berry of deliberately attempting to confuse consumers by usurping the good name of the other Joy Berry.

I posted the letter below with contact info redacted so you can blow it up if nasty is your thing.

At first glance, after reading the letter you might think the erotica author Joy Berry was some evil villain. How dare she peddle her wicked wordy wares to adults struggling with dirty diapers! Ohh, sexxxy.

Was the lawyered letter a ploy by non-erotica Joy Berry to use the threat of legal action to intimidate an innocent person and keep her name and her Google ranking to herself?

Like most people, I don't respond well to threats. This is the second time someone has threatened us with legal action. The first time was when Priceline's law firm wrote me an equally outrageous nastygram which I kindly reprinted. Why don't some of these lawyers do their research?

If Joy Berry's nastygram was true, then yes, she might have had a case to go after this erotica author. After perusing the erotica titles of Ms. Berry, however, it's fairly obvious the plaintiff Ms. Berry had no interest in going after the lawyered Ms. Berry's esteemed parenting clientèle.

Did I miss some smoking gun? I asked the lawyer, Craig Spierer, to offer me a hand.

My response to him was as follows:

-------- Original Message --------

Subject: Re: Joy Berry

Date: Fri, 30 Jul 2010 14:29:24 -0800


From: Mark Coker

To: Craig Spierer

References:

Craig,

We are the distributor of these works, not the publisher. If you can
drop the threatening and unnecessary lawyerly rhetoric, I'll be happy to
work with you to pursue a rapid and equitable solution.

First, a question that will help me help you: Other than the publisher
(Ginger Starr) using a common name identical to that of your client's,
has Ginger Starr done anything to trade on your client's name or
reputation, or anything that deliberately serves to confuse readers or
search engines? Possible examples of such malfeasance to link Joy Berry
the erotica author to Joy Berry the parenting author might include
Smashwords book descriptions, author bios, tags or book content that
utilize such keywords as "lesbian erotica" with keywords possibly
associated with your client as "potty training" or "parenting" that I
see on her own site at http://joyberrybooks.com/ , or using images or
branding in their erotica works that are similar to your client's, or
that parody your client's work? If you can share any evidence of the
above, it will help me help you more quickly.

Based on my quick review, and without taking a position either way, my
guess is that what we have here is an unfortunate, random coincidence,
not a deliberate attempt by anyone to trade on your client's name or
reputation.

Surely, if Ginger Star the publisher wanted to reach erotica consumers,
there are many more equally common names they could use to more
effectively reach their target audience. And if Joy Berry the erotica
author wanted to continue using their name, I'd think they might have a
strong case to do so. Even if we removed the books from Smashwords, if
Ginger Starr chose to fight you, it would only serve to more closely
connect your client to the erotica author.

Even if you don't have the above evidence of any deliberate attempt from
this Ginger Starr to trade on your client's name, branding or
reputation, I'm willing to contact the publisher, express your concern,
and politely suggest they change the author name of their books to
something else, such as Juice Berry, or whatever.

Best wishes,
mark


Moments after I sent my conciliatory note to Mr. Spierer, I received an email from one of our retailers that they, too, had been served with a take down notice on behalf of Joy Berry, the non-erotica author, and they had quickly complied with the request. So now, an apparently innocent indie author had her books removed from a major retailer. Was that really fair? And is it fair to Smashwords that some hired mercenary could falsely label us as a purveyor of illegal content to our valued retail partners?

I don't blame the retailer. On the handful of occasions when we've been contacted with complaints that a Smashwords author was infringing the rights of another person, we removed the works until the two parties could settle their dispute. It's a shoot first ask questions later policy, and I admit, it's not fair. Unfortunately, we don't have the time or legal resources to take sides in such complaints.

Yet the more I thought about this case, the more it bugged me. What right does one author Jane Doe have the right to squelch the publishing rights of another author Jane Doe, just because they sell different products that don't look so great described together in the same sentence?

Mr. Spierer's response to my request for hard evidence proved flaccid.
Mark,
Thank you for your prompt response. This is no mere coincidence or accident, Ms. Berry's name is not a common name, and there is no doubt that the publisher has taken intentional actions in bad faith and are violating my clients' applicable rights. If you are merely the distributor, I would greatly appreciate it if you could provide me with the contact information for the publisher so we may get to the source to stop these unlawful actions, which is my clients primary concern.

Further, I would be happy to speak with you further on Monday if you are available.

Thank you.

This communication is sent for settlement purposes only and shall not be construed as a waiver of any right or remedy, all of which are expressly reserved.

Kind regards,
Craig M. Spierer

*sent from my blackberry*
Contrary to Mr. Spierer's assertion that 'Joy Berry' is a rare name, the name is quite common. A search over at Switchboard.com for Joy Berry yields at least 300 results, as does a search for Joe Smith, so my guess is that there are thousands of Joy Berrys in the United States alone. Does this mean none of them can write their own book? Is a lesser known author not allowed to slip into the Google results of the other, as did the erotica Joy Berry?

I don't blame the lawyer for his letter. I give credit to Ms. Berry, the non-erotica parenting author who bankrolled this misadventure, and who couldn't be bothered to do her own research, or contact us herself with a polite request to work things out.

Over the weekend, I had an email thread with the publisher behind Joy Berry, and sure enough, she told me the similar names were pure coincidence. She thought 'Joy Berry' sounded like a good name for an erotica author. Although I believe she has every right to use the name, on Monday she decided to change Joy Berry to Ginger Starr.

Another search at Switchboard.com shows another six people by that name. Is any name safe?

16 comments:

Tonya R. Moore said...

An unfortunate coincidence for sure but what ever will become of civilization when people start claiming they've got dibs on a name? Is there even such a thing as a single person with a truly unique name anywhere on the entire planet? This is beyond ludicrous.

Kat Lively said...

If I had to guess, this is just a case of pure, unfortunate coincidence. Now, if the kid's author Joy Berry wrote romance works geared toward adults and somebody using the same name came along, I could understand the suspicion. As a writer who dabbles in several genres, I personally don't see the benefit in taking on the same name as a parenting author to "poach" a readership. I don't think that was Joy Berry/Ginger Starr's intent. She chose Joy Berry because she thought the name sounded sexy or sassy.

Now, if you browse around the bookstore and see names like Mora Roberts, Janice Evanovich, and Dan Browne, maybe it's time to worry.

Roger Parkinson said...

There are lots of people with my name out there and some of them write books. Not the same kind of books though so fingers crossed. I even have a cousin with the same name as me.

Richard Sanders said...

My name used to be Martha Stewart. Now you can see why I changed it to Richard Sanders

Christy Pinheiro, EA ABA said...

Sorry, but I call bullshit. This is another reason why I've decided to use a variation of my legal name as my pen name, rather than a completely ficticious name.

And I've taken the time to tradmark my company name, too. I worry that I'm going to get "Joy-Berried" out of a name that I have the perfect legal right to use.

The fact is that the erotica author probably would have won this fight, had she bothered to take it to court-- you're right-- Joy Berry is a very common name. I found at least 100 listings in the yellow pages-- just try it-- you'll find hundreds of people with the same name.

I understand why she did it, though-- of course she doesn't want anyone to confuse her name with an author that writes erotica. Although an easy fix would be to just add a middle initial or something like that.

Although I think that this post is going to draw a spotlight on something that Ms. Berry would have rather had buried (no pun intended).

Christy Pinheiro, EA ABA said...

Also... does anyone else think that the lawyer's signature is ENORMOUS-- like beyond huge.

Christy Pinheiro, EA ABA said...

Hey Mark; I blogged about this too-- but FYI-- Ginger Starr is the name of an established Porn actress, so your poor author might have another fight on her hands. I suggest a trademark for her series, or something, or else this has the chance of repeating itself.

JD66 said...

Seems to me that this company is extremely internet savvy. Why would you randomly choose the name Joy Berry? Looks like they know how to use Google if you ask me!

Also Ginger Star(r) is the name of another famous kids series. Looks to me like they are trying to poach search terms. Its not uncommon that companies buy their competitors search terms.

I have one of the most common names out there, but I don't think this is coincidence at all.

Jim said...

I read your blog and I just don't understand the outrage here... Joy Berry (Kids) has been around for over 30 years writing children's book. The Dirty Joy Berry (which is not even her real name) just started coming out with erotica this year.

Joy Berry (kids) should have the right to her own name. Ginger Starr's real name is not Joy Berry. If Ginger wanted to keep her fake name, she should have to use a middle name and/or initial.

I dont really know why there is such backlash against the kids Joy Berry. She is just trying to protect her good name that she built up for the past 3 decades.

Corra said...
This comment has been removed by the author.
Corra said...

I second JD66 - I am not convinced that it is coincidence, why was the latter Berry gave up almost immediately and went for another name? Had she went through research and decided on that name, then that name was chosen for a reason. What I don't understand is why M.C. had to deal with the lawyer in the first place, can't they talk it out themselves?

Christy Pinheiro, EA ABA said...

Hm... looks like the "Pro-Joy Berry" comments are coming from people who just signed up for blogger accounts in August 2010. Just a coincidence?

Alison Pensy said...

I just checked my name on Switchboard.com and it looks like I'm the only Alison Pensy in the US, so hopefully I won't have this problem.

And it can be a problem nowadays, especially with everyone's info so readily available on the internet. Whenever I'm thinking up unusual names for characters or places for my books I always Google it first and it if comes up with a business or person's name I try and think of something else because I just don't want this kind of thing happening to me. That would be something I'd suggest to every author before they start using a name, it's the easiest way to stay out of trouble.

Looks like I get to keep my own name though, what a concept :-)

marcus said...

"Had she went through research and decided on that name, then that name was chosen for a reason."

Sometimes people just brainstorm names up in a minute or two and decide they like the sound of them. Berries are common in erotic symbolism, and joy has positive connotation. The name could easily have been chosen for that, or as a euphemism (granted a cringe-worthy one). There are any number of reasons that one might choose a name, and not everyone takes the time to 'research' before arriving at that decision.

Susan said...

Oh, am I coming up quickly with new joint titles for either publisher: "I potty trained my husband in three days -- So Can You!" Do you think this will help?

Jenna said...

I need to visit your blog more often, Mark. Always entertaining.

The world is getting smaller - do people have the right to potential keyword searches?

If I Google "Author Jennifer Anderson" I come up with 10,900 results.

"Jennifer Anderson" 1,210,000

How dare they use my name.