I Beg to Differ, Sir

It’s rare that one gets the opportunity to sue his hero—but, as my wife recently remarked to me, “You’re dangerous when you’re bored.” This is the story of how I almost brought the late P. G. Wodehouse to federal court.

You might recall from a prior guest post of mine—though you will certainly be forgiven if you do not—my mentioning that I was working on (that is, writing) a collection of parodic short stories featuring the best-known and -loved of Wodehouse’s fictional characters… placed in some truly absurd scenarios. Bertie Wooster wakes up one morning, for instance, to find himself transmogrified quite Kafkaesquely into a parakeet; Jeeves helps a certain Mr. W— of Gotham City, in America, adopt an alter ego. You know, those sorts of things.

I wrote ten stories over the summer of 2010. One was published in a literary journal of a college in Boston; another appeared in a Canadian humor magazine. Relatively low-profile publications, both, which might explain why, as far as I know, no one in the Wodehouse camp took notice of either back then. In the Fall of 2010, I began querying literary agents about the collection, which I had titled “Wodehousebroken.”

Several agents liked the work very much. One agreed to represent me (and persuaded me to add a pair of stories to the collection, bringing the tally up to a dozen). I won’t embarrass the agent by naming him or his agency; he and it are well-regarded. Nevertheless, after a year, he hadn’t sold the book, and I ended our arrangement. While (unsuccessfully) seeking new representation recently, I began to consider self-publishing the collection, as an eBook, and I recalled that an agent I’d traded emails with the first time around had strongly recommended that route, for a variety of reasons, suggesting memorably that it was a keenly appropriate manner of publication for this particular project, and vice versa. Ultimately, I decided to do it—to self-publish Wodehousebroken as an eBook for the Kindle, via Amazon.com.

I uploaded my book to Amazon’s Kindle Direct Publishing website on May 13, 2012; it was approved for publication in a matter of hours (much fewer than the 12 hours KDP officially reserves to review new books for sale). I announced the publication of the book to my friends and others on the morning of Tuesday, May 15… and then I waited for the other shoe (or perhaps just the first one) to drop.

For, you see, I’m no dummy. And even if I hadn’t myself wondered if I might be running afoul of someone’s intellectual property rights by publishing Wodehousebroken, several agents and several friends had raised that specter. Interestingly, of the agents with whom I had discussed the project, half were of the mind (as I have always been) that my use of the fictional characters that had appeared in P.G. Wodehouse’s original novels and stories between 1915 and 1974 (the year I was born, as it happens; Wodehouse died in 1975) was unquestionably fair use, inasmuch as my stories are patently parodic. Bertie Wooster meets Dr. Emmett L. Brown, who asks Bertie to accompany him to the year 1967, to salvage the reputation of Wodehouse himself (in “Back to the Wooster”) ! In “Jeeves Your Own Adventure,” the reader plays the valet Wodehouse’s adventures featuring Jeeves and Wooster were silly, but they were realistic. Mine are just inane.

Still, not everyone has a sense of humor. Or, more to the point: Reasonable minds can differ about what constitutes fair use. One of the literary agents I’d discussed Wodehousebroken with more recently, for example, had concluded that, as much as he wanted to take on the project, he just couldn’t, uncomfortable as he was that I didn’t have the permission of the Wodehouse Estate. I protested that I didn’t need permission—and I showed him a certain ace up my sleeve, more about which below—but he declined, wishing me the best of luck.

On the eve of publishing on Amazon, I did a Google search for “Wodehouse Literary Estate” and—somewhat to my surprise—found exactly what I was looking for: an account of the Estate (officially, the “Wodehouse English Settlement No. 3 Trust”) having persuaded (by implied threats of litigation) an author to stop selling an original novel featuring Bertie Wooster, Jeeves, and many of the secondary (and tertiary, even) characters from Wodehouse’s stories. The account I found was a blog post written by the writer who had been shut down. So of course I emailed him, asking what his experience had been. He emailed me not only his novel (which I have not, as of this writing, read; I’ve been very busy), but also the text of the email he’d received from an attorney for the Estate. That cease-and-desist email contained nothing unexpected, to my mind. But now I knew specifically what to expect—perhaps verbatim, with just the name of the project at issue changed—if my work came to the attention of the Estate (and likewise met with disapproval). What struck me the most about the cease-and-desist is that it was somewhat apologetic, even while it invoked the “iron-clad policy” of the Estate not to authorize any sequels to P.G. Wodehouse’s work or derivative works based thereon.

That’s all well and good, I thought, but I can beat this.  It was a sloppy cease-and-desist letter, in my opinion. The Estate lawyer didn’t bother to distinguish between copyright in the stories and novels of Wodehouse (which inarguably exist) and the copyright in the characters in those works (which only arguably exist; see my prior post). And that’s not at all a distinction without a difference, in both the case of this other writer (a layperson) and mine (not). Reading the email from the Estate lawyer to that other writer almost made me look forward to receive a similar letter. I realized that I was already composing a response in my head, and it approached three pages.

But I wasn’t really hoping for a fight, even if I was expecting one. My plan was to sell as many copies of Wodehousebroken on Amazon before it appeared on the Estate’s radar… and then just stop selling the thing. Because I knew that, realistically, mine is not a book destined to be a sleeper hit. The target audience is, of course, readers who know and love the Jeeves and Wooster canon, and I figured word would get around that population quickly; anyone who was going to pick up my book (out of loyalty or curiosity) would do it right away. Two weeks was probably my window. As it turned out, my window was closed, abruptly, after just longer than one. On the evening of May 23, I got an email from Amazon informing me that sales of Wodehousebroken had been summarily suspended, the consequence of Amazon’s having received a complaint of intellectual property infringement from a lawyer (whose name I recognized, of course). Amazon did not forward a copy of the complaint until I requested it. It wasn’t at all illuminating.

I was at first incensed that Amazon would suspend sales of a book after simply receiving a complaint from a third party—that is, without asking for my input on the matter—but then I realized that of course Amazon has to have and follow such a policy. Amazon isn’t going to be the arbiter of such disputes, and it certainly does not want to be culpable of facilitating infringement. So Amazon just takes down works upon which suspicion has been cast and asks the parties to sort things out between themselves.

The following day, I received an email from the Estate’s lawyer, advising me of the specific reasons for the Estate’s complaint to Amazon. The email was brief, but a bit more involved than the one he’d sent to that other writer. The bit that stung was the suggestion that my work was “clearly intended to damage the reputation and legacy of P. G. Wodehouse.” I hadn’t expected that, but the letter I’d been writing in my head already addressed the rest of the email; my letter would now have to be just a tad longer. A full three pages, perhaps.

Indeed, I was planning to proceed—to engage counsel for the Wodehouse Estate, a major law firm—pro se (albeit Pro Se, Esq.). Even if I’d chosen to use my revenues from sales of Wodehousebroken in the eight whole days it had been available for purchase, I’d have been able to afford only about fifteen minutes of a New York City lawyer’s time. Fortuitously, the next day—before I’d done anything (that some might consider) rash—I found myself emailing with a friend, an intellectual property lawyer of note… a maven, you might even say. Before I knew what was happening, he was persuading me to let him represent me. That is, I’d do the bulk of the work, but he’d provide the leverage that comes from being represented by a lawyer (who isn’t oneself) with quality stationery. Yet again, I won’t embarrass this wise, generous man by naming him—but if you’re paying any attenti®n at all, you know who it is.

“It’ll be fun! ” he said. (I mentioned this to my wife. She said: “You guys have a strange idea of fun.”)

It was fun, though, of course. Really, who doesn’t enjoy composing a comprehensive response to a cease-and-desist demand… especially when you have an ace up your sleeve? (Remember the ace up my sleeve?) Besides countering the assertion of infringement with a demand for proof of copyright in the two specific fictional characters at issue… assuring the Estate lawyer that the suggestion of intent to damage the reputation of my hero was baseless and reckless… and arguing that to deny the parodic essence of Wodehousebroken and each included story would be itself absurd… we dropped this train on the Estate (Trust) lawyer:

Notwithstanding that Mr. Brozik has not sought the permission of the Trust to make use of any intellectual property held by it—because Mr. Brozik does not need the Trust’s permission, given the parodic essence of Wodehousebroken —Mr. Brozik in fact received not only permission to pursue publication of Wodehousebroken but encouragement to do so from an agent of the Trust.

In late 2010, when Mr. Brozik was seeking representation of Wodehousebroken by a literary agent, he queried, among others, A— H— , an agent at I— Management. You are of course aware that I— is the literary agent  in  the   United   States   for  the   Trust.   Mr.   Brozik described Wodehousebroken in detail to Ms. H— in his query email. Ms. H—responded as follows, by email dated December 14, 2010:

Dear Matthew,

I—Management represents the Wodehouse Estate and I’m not certain it’s in our best interest.

But this sounds fun so I’m certain you will land with the right agent. We wish you much success.

Ms. H—, being an agent of I— Management, speaks for the agency (“We”); the literary agency, it can not be disputed, in turn speaks for the Trust. Given the opportunity in December 2010 to raise any objection it might have had to the publication of Wodehousebroken, the Trust’s apparent agent not only raised no objection but affirmatively encouraged Mr. Brozik to pursue publication, even wishing him much success. I— Management’s response to Mr. Brozik unquestionably constitutes a waiver of any objection the Trust might have had, at the very least, and would also likely constitute as well grounds for a claim of equitable estoppel of any objection now.

Yeah, that had happened. And it might have made the difference. (This story has a happy ending, wouldn’t you know.) Our letter went out to the Estate lawyer on June 1. On June 7, we got a response by email (which, frankly, I thought a bit oddly informal), the gist of which was that, while the Estate “totally disagree[s] with your analysis of the copyright issues involved in your client’s use of P.G. Wodehouse material,” nevertheless the Estate was willing to withdraw its complaint to Amazon, thereby permitting sales of my work to resume… on three conditions: (1) the name of the work would have to be changed to something approved by the Estate; (2) the work itself and any website publicizing it would have to state that the stories are parodic and not authorized by the Estate; and (3) I could not write and sell any further stories. But that’s all. This was a clear win. The second and third conditions were no-brainers. Changing the name of the book would be a frustrating effort, because—let’s be honest—”Wodehousebroken” is a great name for this project. But that requirement wasn’t harsh enough to make the arrangement unpalatable, to be sure. So we agreed.

While we’d been waiting to hear back from the Estate’s counsel, though, I had drafted a complaint for declaratory judgment. That’s why I hinted, up top, that I had nearly sued my hero. If the Estate hadn’t backed down—or come back with a reasonable suggestion for amicable resolution, as, to its credit, it did—then we were going to court, and promptly. (And, yes, I enjoyed drafting the complaint, as well.) I confess, though, that I had been on the fence about taking the case to court. I didn’t think I wanted to be the guy who had sued the Estate of P. G. Wodehouse just to be able (maybe, if the court would find in my favor) to try to sell an eBook of stories to a handful or two of curious readers (all of whom love Wodehouse, and who therefore might resent me, and boycott rather than buy my book). I could win the battle just to lose the war—quite easily, at that. Fortunately, it wasn’t necessary. So we’ll never know whether a United States District Judge would have determined that my work does not infringe on the copyrights in the characters of Wodehouse. Instead, you can decide that for yourself.

WHIMSY & SODA is available for purchase at Amazon.com.