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?
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
From: Mark Coker
To: Craig Spierer
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
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.
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,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?
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.
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.
Craig M. Spierer
*sent from my blackberry*
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?