Author: Penguin tagged my book as “black interest”

by Walter Olson on January 24, 2007

Many large bookstores carry sections devoted to works of African-American interest, and a number of book clubs and other specialized selling channels do a thriving business by specializing in black themes and authors. In October, however, Florida-based author Nadine Aldred, who writes under the pen name “Millennia Black“, filed a pro se lawsuit in federal court in Manhattan against her publisher, Penguin Group, on the grounds that Penguin (she alleges) insisted on steering her work into black-interest channels although she would rather have been marketed as a general-interest author. On the Wrong Side of the Alligator has reprinted excerpts from the complaint (Jan. 6).

The estimation of whether a particular author’s work will sell better if marketed to a niche or to a more general audience is inescapably going to depend on case-by-case judgment (assuming that marketing dollars and available cues of cover design, etc. are limited and cannot be dispatched in both directions at once). It is not immediately apparent why Penguin would not have an interest in taking a path that maximized its author’s sales. Aldred’s suit asks $250 million. See also Jeffrey A. Trachtenberg, “Why book industry sees the world split still by race”, Wall Street Journal/Pittsburgh Post-Gazette, Dec. 6.

P.S. Disclosure, for whatever it’s worth: Penguin was my publisher on my first book (The Litigation Explosion).

More: Charles E. Petit of Scrivener’s Error writes to say:

The real problem in this instance is not with Penguin. The real problem is an antitrust nightmare: the book distribution system, which is probably the paradigmatic example of “one man’s antitrust is another man’s economy of scale”–at least until you look into the financing and terms of doing business, which makes me ask “What economies of scale?” The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped. In other words, “We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit.”

{ 39 comments }

1 jb 01.24.07 at 3:12 am

Do all royalties paid out by all publishers for all books published in a year add up to $250 million?

One thing that always strikes me reading this site is how arbitrary and preposterous the original suit demands are.

It seems to me that assigning the money taken via punitive damages to the plaintiff makes very little sense. The point of punitive damages is to make the suit cost enough money so the deep-pocket defendant pays attention and changes its policy–why should the plaintiff benefit from this?

2 John 01.24.07 at 8:36 am

jb forgot one of the major tenets of most of the posts on this site…all together now…”It’s not about the money.”

3 Deoxy 01.24.07 at 10:26 am

“Do all royalties paid out by all publishers for all books published in a year add up to $250 million?”

No… much, MUCH more.

But if you’re just talking about Penguin… I have no idea.

4 Ancient Reader 01.24.07 at 11:55 am

John:

Your reminder to JB, I find rather interesting, isn’t it?

I’ll also add that when one’s mind is influenced generally by the negative side of issues, (the non-progressive) they often overlook “value of priority” in their summations

Two bad moves here JB. The one John has mentioned and next is, the fact only juries and judges are to make request for any amount of money their analysis and conclusions.

Why are you concern about the amount of cash asked in the MB lawsuit? Please educate us on this if you can.

5 J.T. Wenting 01.24.07 at 12:47 pm

Most likely she claims 250 million in the hope to get 250 thousand after her lawyers run off with the rest of the 100 million settlement…

6 jb 01.24.07 at 1:11 pm

Ancient Reader: I find it hard to believe that this particular author suffered damages of $25,000, let alone 10,000 times that. It seems to me like the monetary demand was produced by recto-intestinal extraction rather than any calculation related to actual damages.

IANAL, but it also seems to me that the purpose of filing a lawsuit is to recover damages, not to obtain random large amounts of money. So the fact that the amount asked appears to have no relation to the damages inflicted strikes me as problematic.

Similarly, I recognize that the actual amount of damages is minuscule compared to Penguin’s revenue, so if the suit is supposed to serve as a deterrent against Penguin doing it again, large punitive damages make sense. What I don’t understand is why the plaintiff should be the one to benefit from what is effectively a fine levied against the defendant, above and beyond being made whole from the damages.

7 Ancient Reader 01.24.07 at 5:43 pm

JB:

I liked the Idea you gave us benefit hearing more details of your interpretation on this issue.

Honestly JB, if you were the plaintiff in this situation asking for seven times as much MB is asking for, most intelligent people I guess wouldn’t care whether you receive it or not, with a tilt in your favor. I would hope that you win also.

JB said: “It seems to me like the monetary demand was produced by recto-intestinal extraction rather than any calculation related to actual damages.”

Obnoxious! This is insulting to the plaintiff, isn’t it? You’ve lost respect for having good faith, prudence and ethics by making that expression, JB. You seem to have some latent ulterior motive here, for making such presentation, is that true? Or what is driving such incensed distrainment of yours?

8 jb 01.24.07 at 6:12 pm

Well, yes, I’m insulting the plaintiff. I think the plaintiff pulled a large number out of their a** and is suing for at least 1,000, probably 10,000 times as much as the damages, if any, are.

Are you going to post any defenses or more detailed analyses of how this demand came to be, or are you just going to make contentless sniping comments?

9 Ancient Reader 01.25.07 at 6:27 am

JB:

No, I’m not posting any defense to how the demand came to be. Why should I do that when I don’t care how much money victimized plaintiffs ask for? It seems like you’re playing a tune that you alone hear the melody and dance.

C’mon, be real. Do you know MB personally, has she done something wrong to hurt you, JB? What else could allow you to spew such venom at someone like that?

Could it be that you’ve a business interest in her publisher?

This is kind of funny. Struggling people usually back up one another when they’re victimized but in this case JB, you defend the abuser. Um! Something’s wrong.

10 Deoxy 01.25.07 at 10:25 am

Ancient Reader : “…you defend the abuser.”

No, YOU are defending the abuser. The abuser we are speaking of is the one suing for some ridiculous amount of money.

11 Ancient Reader 01.25.07 at 2:41 pm

Deoxy:

Wait a minute! People can say anything they want with the tongue of theirs’ but in this world we try to make the most sense of issues as possible.
You said:

“The abuser we are speaking of is the one suing for some ridiculous amount of money.”

I understand your feelings on that. But shouldn’t you balance the scale by saying something about the defendant’s ridiculous abuse of the plaintiff, as well? Or is this personal gripe of sorts?

Even if you’re right that the amount asked is really ridiculous, may be the plaintiff doesn’t see it that way and is depending on the justice venue to decide and deliver. Why is it a sin to ask for what you want? Why are you being abusive when someone has cause you to seek remedy for injuries they have caused? Lets say, even if you ask for too much, Juries and Judges will see to it you receive what they believe is fair based on the evidence presented.

Ridiculous? Have you gathered all of the evidence in the case that qualifies your conclusion?

So you have bluntly left alone the Ridiculousness of the publisher’s systematic “white racist practices” of minorities to taunt a poor victim… who, according to your very own words, have done no wrong but to ask for too much money.

Bad logic. Just start making some sense, Deoxy, please!

12 Deoxy 01.25.07 at 5:13 pm

OK, I’ll try, just this once, to make som sense.

The “ridiculous abuse” that Penguin heaped on the poor abused author was to market the author’s book in a way that Pnguin thought would make the most money FOR BOTH OF THEM.

The ridiculous abuse that the author is foisting on all of us (in that it’s a public court that our tax dollars pay for) is asking for a COMPLETELY absurd amount of money for this judgement call.

How completely ridiculous? Well, let me “[gather] all of the evidence in the case that qualifies [my] conclusion”.

The Harry potter books haven’t made that much money for the author (or at least not any single one), and the odds of this particular book being anything close to that are completely ridiculous.

In other words, the author is the abuser, here.

Example: I go on American Idol (to audition), and you help me with my outfit (in return for a percentage of what I make down the road), and, after the fact, I disagree with the color of the socks you had me wear and blame you for me not getting on the show, and I sue you for $250million.

Is that not utterly ridiculous? WHO is not making sens here? The author in question… and you.

If pointing out that the damages claimed are completely and utterly ludicrous whn they obviously are is “bad logic”, well, I guess I’m guilty.

13 jb 01.26.07 at 12:44 am

Does anyone else want to take a stab at figuring out where the plaintiff got this $250 million demand?

Or indulge my speculation about alternate ways to make verdicts hurt guilty companies without creating a lottery for the plaintiffs and ensuing incentive to sue big pockets?

Arguing with Ancient Reader is getting old.

14 Ancient Reader 01.26.07 at 6:59 am

First, Deoxy. The premise of your argument is founded in a particularly word used here below:

“The “ridiculous abuse” that Penguin heaped on the poor abused author was to market the author’s book in a way that Penguin thought would make the most money FOR BOTH OF THEM.”

The operative word? “Thought”.
Can you tell for sure how Penguin arrived at the “thought”? Is this your speculation? If it is, there’s just no place for that here, being that we’re dealing with specific allegations levied against a defendant/s in a court of law. It’s a fruitless thing to the minds of prudent folks when speculations lieu available facts. Don’t sidestep equitable reasoning for cat-scratch ideas. Lets make sense by virtue of the allegations and evidence a Jury or Judge will consider. Think again Deoxy. Whatever your identity, not every minority are idiots, take care of what you say.
————-
Second. JB said:

“It seems to me like the monetary demand was produced by recto-intestinal extraction rather than any calculation related to actual damages.”

I think that you should be more respectful of proper presentation and good reason. It’s hard to accept the indecent description that you’ve given. This is a legal board, and your statement above can make a weak stomach vomit. We’ve just one life to live and you’ve set out to make some people lives miserable and seemingly enjoying every moment of it. Why? It makes a lot of sense to you, I guess. That’s your kind of world where you’ve imaginations of excretion even where it should be far away from one’s mind.

You’ve admitted an intent to insult the author that’s suing, and this is a situation where you shouldn’t have cared all that much about it.

I don’t want to come off sounding adversarial but permit me to ask this. Of what race are you, JB?

15 Deoxy 01.26.07 at 10:49 am

AR,

First, RACE DOES NOT MATTER IN THIS. I don’t know or care what race the author in question is (though black is likely, of course). YOU are the one asking what race people are, inferring racial comments where none are made, etc. WHO is the racist, here? “take care of what you say”?!?

“The operative word? “Thought”.”

No, the operative words are “FOR BOTH OF THEM”. The publisher makes money based on the number of copies sold. The author makes money based on the number of copies sold. Their interests are as perfectly aligned as it is possible in the free market to be. Either Penguin thought that marketing the book for black interest would sell the most copies (and thus be most beneficial to both them and the author) or they were deliberately sabotaging their OWN profits just to screw one particular author. When selling books is the whole point of your businss, why would you minimize book sales?

THAT is “available fact”. To think anything else is “sidestep[ping] equitable reasoning for cat-scratch ideas.”

And then claiming that I am saying that minoritis are idiots? Um… where have I mentioned ANYTHING that could be interpreted that way? Projection?!?

I would tell you to “think again”, but it seems you haven’t thought the first tim yet, and I don’t mean that as a gratuitous insult; it would appear, based on your statements, that you are simply siding with the author based on race. THINK about the RELEVANT facts of the case… and the race of the author (or of the folks at Penguin) is NOT RELEVANT.

16 BSA Pontif. 01.26.07 at 11:39 am

Deoxy siad:
and the race of the author (or of the folks at Penguin) is NOT RELEVANT.

That is a false statement. The race of the author was most obviously relevant to Penguin.

Identify a novel/s by a Caucasian author that has NO black characters but was forced by Penguin into a niche they “thought would make the most money FOR BOTH OF THEM.” that just happened to be the African-American genre. If you’re intensions are credible, you’ll find this to be a logical point.

I think we need to think about the implications of our positions before we stand up ramrod straight to passionately spew from them.

Race is irrelevant, is it? If only it were! Then Millenia Black’s first book, that didn’t have a single black character to speak of, would’ve been classified and sold as general fiction, as opposed to African-American fiction, just because the author is black and an AA content market exists (there goes that race relevance you claim isn’t there) and she would not then have to sue for the treatment white authors get just because they’re white and therefore, by default, mainstream.

White author: non-AA content. Mainstream/general fiction.

Black author: non-AA content. African-American fiction

That’s why this lawsuit is inportant, far too important to go honing in on the figure being sued for and dismissing it on the basis of that.

17 Deoxy 01.26.07 at 12:47 pm

BSA Pontiff,

It’s STILL not relevant. How to market something is a judgement call – a business decision. I don’t know how the contract is written, but I would expect marketing decisions to be up to Penguin.

What category they put something is is a simple business decision: which category will result in the most books sold?

In this case, it happens that the category “African American interest” (and when there’s a “white interest” category that doesn’t get nationally reviled, let me know – the ONLY place for “white interest” is general, because MAKING a “white interest” category would be roundly denounced as racist) was judged to be the more effective than “general interest”, but the scenario is the same if the categories are sci-fi vs westerns, pirates vs ninjas, or sneechs with vs without stars.

It’s a business judgement call as to which category results in the most sales, end of story.

18 Ancient Reader 01.26.07 at 2:58 pm

Deoxy said:

“Either Penguin thought that marketing the book for black interest would sell the most copies (and thus be most beneficial to both them and the author) or they were deliberately sabotaging their OWN profits just to screw one particular author.”

Often time these kinds of debate easily get out of hand. But for good health the preference should be to keep civility though it’s hard to as in this case.

Why are you denying the “condition-precedent” of “thought”? “Penguin thought” AA sales would benefit both of them, and therefore acted upon that thought.
But there are other transactional nuances occurring prior to Penguin’s “thought”. It must have signed a contract. What did it say?

Deoxy said:
“And then claiming that I am saying that minorities are idiots? Um… where have I mentioned ANYTHING that could be interpreted that way? Projection?!?”

C’mon, those things that you’ve cited offers not one spark of legal evidence, yet you do expect the rest of us to respect what you’re putting forth as credible. No sir, far form it.

You’re really on the wrong side of the Alligator here. Traditional racism in America, allows white people to think that Black folks in particular, are not intelligent enough to understand their cryptic insinuations of racial insults. That assumption seems to blind many of you. I’ll go into more details next time.

So though you didn’t come right out and say it, you’ve clearly packaged the contents to mean a racial insult, and intelligent ones can identify it. You’re belittling yourself by the responses you’ve given so far. Don’t get carried away with the assumption that your deceit on the issue isn’t racial and blindly slanted because it’s seen from many miles away.

Now to prove what I’ve just said to be true, will be shown up in your response to BSA’s input that says:

White author: non-AA content. Mainstream/general fiction.

Black author: non-AA content. African-American fiction

That’s why this lawsuit is important, far too important to go honing in on the figure being sued for and dismissing it on the basis of that.
—————
Now what say you, Deoxy… under the microscope?
I don’t mean to be unfriendly but let us take the punches on the chin as good sport and let the truth come out. We’ll all stand to learn something.

19 BSA Pontif. 01.26.07 at 3:27 pm

Deoxy has lost credibility. S/he is essentially asserting (most illogically) that a publisher’s check buys them the right to treat authors based on race, then assert that it has nothing to do with race….it’s just good business strategy. Comparing the AA niche–a race-based genre—with sci-fi vs. westerns, etc.? You either have a mental block, or are intentionally missing the point. I can’t figure out which one.

In any case, no point in wasting anymore keystrokes with Deoxy.

20 jb 01.26.07 at 8:37 pm

I’ll take the matter up with you, BSA Pontif., since I do think this had to do with race.

The defendant may indeed have been damaged by Penguin’s actions. The damages would be in the form of reduced visibility and book sales, and thus lower royalty payments. The amount of compensatory damages, then, is equal to (royalty payments if the book was classified as general)-(actual royalty payments).

I’d argue that there’s no way that amount is likely to exceed $25,000, maybe $50,000. Given that, adding four more zeroes onto the figure demanded seems unreasonable to say the least.

I don’t buy the argument that “the judge will cut the figure down later.” It shouldn’t be the judge’s job to do that–lawsuits should be for the actual damages, plus legal fees.

Can you justify such a large demand, in light of the small amount of financial loss to the plaintiff?

21 JHS 01.27.07 at 10:47 pm

Going back to abuse, there is another abuse no one is talking about here. Waste of court time and government expenses on such a junk lawsuit is abusive.

Where did the $250mil figure come from? Easy. The author just picked a figure that would be high enough to scare the pants off the publisher, in hopes of getting an easy and generous settlement.

Also, I am having trouble understanding Ancient Reader’s contention that steering a book into Black interest is somehow racist against blacks…!

Bottom line, if the author’s contract stated that the book would be marketed a different way, then I would agree the plaintiff has a case. Otherwise, how can an author demand to tell the publisher how to market the book? That is quite simply NOT the author’s job.

There is no law against white people buying “black interest” books, and often such books are selected for Oprah’s book club, which is a guarantee that they will be best sellers.

22 Bumper 01.28.07 at 4:34 am

Maybe we are missing the point. This lawsuit may not be about classification, but just a grab for some publicity to generate interest (sales) Amazon has her latest book ranked at 93,000 with nary a mention of AA. While her first book was apparently very well received, a common thread to the reader’s reviews of this book, “difficult to read.”

Wouldn’t be the first time someone appeared to bite the hand feeding them for a little free publicity.

Final observation of a late night cynic, if this lady is so hung up on the AA thing why did she choose a pseudonym of Black?

23 Ancient Reader 01.28.07 at 7:26 am

JHS said:

“Also, I am having trouble understanding Ancient Reader’s contention that steering a book into Black interest is somehow racist against blacks…!

Maybe I’ve paid more attention to excerpts of the complaint posted on BSA Pontif’s blog and elsewhere, than you have JHS.

The allegations squarely points a gun at deliberately different treatment to a minority author from that would be given a white author, by the publisher.

I do have problems with the usually simplistic unobservant blacks and racist whites who for a bunch of psychological reasons not getting the point. For them it’s always easier to talk a lot ignoring the facts. (unfruitful) In this instance it’s to analyze the allegations of the plaintiff’s complaint as basis leading to factual summations.

24 BSA Pontif. 01.29.07 at 9:22 am

JB said:
I’d argue that there’s no way that amount is likely to exceed $25,000, maybe $50,000. Given that, adding four more zeroes onto the figure demanded seems unreasonable to say the least……Can you justify such a large demand, in light of the small amount of financial loss to the plaintiff?

I don’t think anyone can justify that demand, not even the author. One of my blog visitors suggested it was a strategic number and I’m inclined to agree with that. I personally don’t pay much attention to the amount of money asked for when I hear about lawsuits. I’m more interested in whether or not the claims made are true or not. That’s what’s most relevant. As opposed to wasting time squabbling about whether someone’s asking for a ridiculous amount of money. At the end of the day, why should that matter to anyone but the defendant anyway?

I think MB will have a hard time proving damages of any amount. We know you can’t speculate about it, you must prove it and who’s to say how many books would’ve sold if the discrimination hadn’t occurred. That’s why I agree it had to be more strategic than anything else.

25 BSA Pontif. 01.29.07 at 9:23 am

Charles E. Petit said:
The _distributors_ are the ones who demand “pigeonholing” of books, and Penguin’s best defense will be to point out that books that are released _without_ a category tend to stay in distributors’ warehouses unshipped. In other words, “We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit.”

Did the distributors force Penguin to ask Millenia Black’s agent about her _race_? What? If it wasn’t apparent from reading the manuscript, why did they have to ask? There’s a clue.

Did the distributors force them to tell the author they wouldn’t publish her second book if the character’s weren’t re-written as black? How many _white authors_ have they determined, in their “commercial judgment”, would be best served in this category? As Millenia pointed out on her blog, even THE SECRET LIFE OF BEES, a book where most of the main players are black, wasn’t labeled and styled as AA because Sue Monk Kidd is a white author. And that debut book went on to sell over 5 million copies in hardcover. How come those pesky _distributors_ didn’t force Penguin to design an AA cover and categorize BEES as African-American fiction?

Books released without a category tend to sit in warehouses unshipped? What are domestic fiction books by white authors categorized as? Particularly those that hit the national bestseller lists because they get access to audience numbers that can’t begin to compare to that of the AA market? How many _white authors_ books did Penguin make such a “commercial judgment” call with?

I’d love to hear Mr. Petit opine on how this “best defense” aligns with 42 US 1981.

If this, in his legal opinion, will be Penguin’s best defense, I think it means they’ll definitely lose this case, just as they should. There really is no honorable defense for racial discrimination. I believe the facts of what took place will show that this smacks of discriminatory handling on the basis of race. It says it in the complaint: If a white author had written those same books, they’d be categorized by content, not the author’s race.

26 BSA Pontif. 01.29.07 at 9:34 am

Bumper said:
Wouldn’t be the first time someone appeared to bite the hand feeding them for a little free publicity.

I’ve heard people speculate this route before. Those who aren’t aware of the history. I’d like to encourage folks to read the complaint in full, it doesn’t sound like you have. The author originally self-published her first book as general fiction, she went out of her way to keep race out of the equation. No black characters or content. Race had nothing to do with the book at all- no black cover, no picture of her on it, nothing.

Why then would she ruin her career in this way? For publicity? No. It doesn’t make sense. I know this industry and what’s expected if you’re black. I believe what she says happened happened. This is not about publicity.

Bumper said:
Final observation of a late night cynic, if this lady is so hung up on the AA thing why did she choose a pseudonym of Black?

Are you serious? I take it you’ve never heard of white people with the surname of “Black”…?

Do we think before we talk….or in this case, type?

27 jb 01.29.07 at 10:59 am

BSA,
OK, that makes some sense. I agree with the operators of this site that the lottery-esque nature of the civil litigation process causes harassing and frivolous lawsuits, so I think a demand so out of line, even for a possibly-reasonable suit, is both a symptom and a cause of the problem and worthy of comment. Plus, it shows a certain lack of perspective on the part of the plaintiff, as she is appearing to so grossly overvalue her claims. But if you think the money issue is irrelevant:

You may have a point about discrimination overall in the publishing industry. To me, it comes down to this: Penguin is about selling the most books possible. If this book being classified as “black interest” would sell more of this book, or would somehow increase sales of all Penguin books, relative to what would happen if this book was classified as “general,” or if Penguin thinks that is the case, then Penguin’s actions aren’t themselves discrimination, but reflect discrimination in the market. If Penguin is doing this despite real or percieved financial losses -to Penguin-, then it’s discrimination on their part.

Personally, I think the plaintiff would have a hard time showing that it’s the second case rather than the first, and I don’t think Penguin should be held liable for bowing to the market in order to increase its bottom line.

28 BSA Pontif. 01.29.07 at 12:40 pm

So “perceived” profit is justification for discriminating racially?

JB, then that “logic” would then need to be applicable in all other industries/venues. Restaurants could attempt to build arguments that they think they’d make more money in their industry if they treated their white patrons differently than their black. Airlines could argue they’d sell more tickets if they handled their black travelers differently than their white, etc.

It’s either discriminatory on the basis of race, or it isn’t.

The “publishing industry” didn’t force this publisher to ask the author’s race and proceed to force her non-black book in the AA genre any more than the distributors did. They publish such content domestic fiction written by white authors all the time and never see the need to do what they did to Millenia Black.

You’re saying a publisher should be allowed the discretion to handle black authors differently than they would if they were white -and justify it as good business strategy.

A book with no African American content or subject matter should be styled and genred as AA just because the author is black and it’s good business?

Do you really mean that?

29 Deoxy 01.29.07 at 12:42 pm

OK, help me out here, since I am not intelligent enough to understand my own “cyptic insinuations of racial insults”. I have made NO intntional insults based on race. NONE. I don’t even see any upon re-reading my own posts!

Wow, I certainly am “cryptic”!! (Oh, and “deceit[ful]“, too!)

You want to know who the racist here is? Ancient Rader. And I don’t mean that as a personal attack, simply a statemnt of fact; AR is assuming my race AND assuming my intentions (and that I am lying) BASED upon my (assumed) race. THAT IS RACISM.

You know what else is racist? The existence of “African American interest” in the book store at all. Of course, if you tried to get rid of it, you’d be CALLED a racist, since you would be “oppressing” those poor authors (by putting them in th mainstream, which is apparently better for them, or that’s the claim).

I don’t care what color someone’s skin is. I don’t care about the shape of their nose. I don’t care about the size of their lip, or the slant or color of their eyes. I don’t care about the color of their hair, or whether it is straight or curly. I don’t care about the size or shape of their ears, or whether they have an “inny” or an “outie”.

None of that gets figured in AT ALL when or if I am:
-hiring
-firing
-sitting by someone at the bar (or on the bus)
-choosing friends
-choosing where to buy a car (or do other business)

And I get called racist all the time… because I’m white (yes, admitting it now). No other criteria is needed. WHO is the racist?

I’ll state it again, but perhaps btter this time: no prejudice is necessary or even likely on the part of the Penguin. They made their businss choice based on what they think will get them the most money, or they were intentionally hurting their own bottom line. That’s not “legal evidence”, that’s basic logic. They did one or the other. Which is reasonable to believe, based on the evidence?

Oh wait, I am a dceitful white person who thinks all blacks are unintelligent, so nevermind. I’m not worth listening to.

Especially by my morally superior and non-racist colleagues here, who now all this about me because I am white.

All racists are in the wrong, no matter which race they are racist for. Racism is morally repugnant.

30 jb 01.29.07 at 3:06 pm

BSA:

-So “perceived” profit is justification for discriminating racially?

Yes. The company’s trying to make a profit, so it analzyes how the market it’s selling to works. If more books would be sold, and more profits made, by labeling book x “general” and book y “black” than by labeling both “general,” the company shouldn’t be legally liable. In general, for-profit companies should not be liable for maximizing their profit within the law (there being no law against putting some books into the “black interest” category).

Similarly, using the wrong business model and, because of predictive failure, not making optimal profits should not be grounds for lawsuits from anyone except maybe stockholders.

-Restaurants could attempt to build arguments that they think they’d make more money in their industry if they treated their white patrons differently than their black.

This is a different case. The restaurant, or public transportation, case is similar to the existence of “black interest” categories in the first place. The point is, the publishers aren’t originating the discrimination–the people who are originating the discrimination are those who are demanding a separate “black interest” category in the first place.

Given the existence of a “black interest” category, publishers should be allowed to put whatever they want into that category such that sales and profits are maximized. If you want to get rid of discrimination, eliminate the “black interest” category in its entirety.

31 BSA Pontif. 01.29.07 at 4:33 pm

Sorry JB, but you’re wrong. The AA genre is just that. Just because there is a market among AA people doesn’t mean all black people should be restricted to it even when that’s not what they write…..See my previous comment re: 42 US 1981. It appears you aren’t too familiar with it if you think what Penguin’s done with the contractual arrangement of Millenia Black (vs. what they would’ve done if she were white) is within the law. There’s no way she gets the same potential audience in AA fiction (with non-AA content, mind you) that she would otherwise. The fact that very few black authors debut on the NYT list is proof of that. There’s no comparing the potential audience. I hope this suit plays out so we can see all the discovery data.

On that note- You can go on, but I’m signing off on it here. I think enough’s been said on this for readers to evaluate and reach their own opinions.

32 David Wilson 01.29.07 at 4:55 pm

But what is “racism,” exactly? If you propose to venture out and punch the first person of a particular race you encounter on grounds that you don’t like that race, well, that’s clearly wrong. But so much else of what’s called “racism” withstands moral scrutiny. The proverbial older woman who crosses the street to avoid a gang of tough-looking black youths is justified by experience and statistics — so much so that PRESIDENT CLINTON expressed sympathy for the hypothetical predicament during his “national conversation on race”. Yet the act is technically “racist” in that a judgment’s been made using race as a criteria.

I think some of our deepest social confusion and animosity springs not from “racism,” but, believe it or not, its presumptive opposite: the notion that race “does not exist,” that it is irrelevant, and that racial and ethnic groups and individuals are fungible goods, if you will. Because the reality on the ground is that they’re not. If segregation was distasteful, its replacement has been even worse.

Yet few dare point this out, for fear of being called “racist.”

33 jb 01.29.07 at 6:46 pm

BSA:

Then why does the AA genre exist? If books so classified get less exposure than general fiction, then why do any of them get classified that way?

If some books’ fortunes are improved by being marketed under the AA genre, then this suit is about Penguin confusing this book for a book with a different subject, rather than purposely marginalizing it.

You seem to be alleging a general, industrywide practice of marginalizing black writers by putting their books in a classificatory ghetto. Can you name other books that this was done to, and will we be seeing lawsuits by their authors? Will there be a big class-action?

And why do book publishers hurt their bottom lines by discriminating against black authors?

34 Ancient Reader 01.29.07 at 8:32 pm

I love this board very much.

BSA Pontif has tried over and over again to keep the focus where it belongs: on the allegations purported in the plaintiff’s complaint. But to no avail. The racially privileged prefer to conger as many speculations in side memoranda, steering away from the alleged wrongdoing of the complaint. How dim-witted can educated people be?

They’re too embarrassed I guess of the irrefutable allegations properly placed on this publisher. So the only thing they can do now to try and save face, is to engage in senseless dibble and dabble about an overpriced lawsuit devaluing the reprehensible allegation. Not about the fact that this publisher treated a minority author differently from white authors. No, their unaware minds can only assess that MB’s looking for publicity by suing her publisher and blackballing herself as an author. Since they believe it to be a business practice the publisher has a right to exercise, the amount MB’s asking for won’t matter at all in court. So what’s the fuss?

Isn’t this a simple thing to understand when you think of it? Consider the following:

I’d love to hear Mr. Petit opine on how this “best defense” aligns with 42 US 1981.

Let’s see if anyone rushing to defend Penguin’s right as a publisher to discriminate in this way will have the iron-savvy to do away with the empty and spurious sophistry about excessive demands, and cease fostering piles of excuses for raw, ostensive ethnic discrimination. Too dumb to understand it or what? Or do you just refuse to acknowledge that what Penguin did was wrong no matter what business strategy they use as defense of it? MB didn’t write AA fiction and therefore was discriminated against in how her book was handled because she is black, and no other reason.

All people are factually created equal by God, don’t try to change it.

35 Pamela Delfino 01.29.07 at 8:57 pm

JB—that’s a dumb question. why does the mystery genre exist? romance? horror? any genre? Because authors write those SPECIFIC subjects. Obviously African-American fiction exists because there are black authors who write that subject-matter, specific to African-Americans and that way of life – duh! and black readers gobble it up because it’s relatable. that’s why the genre exists and thrives.

but the existence of the niche is not what is at play here. I see the Black case as being the fact that this author DID NOT write AFrican-American fiction. She wrote general fiction. If the pub. was looking for African-American fiction they bought the wrong book. now they’ve ghettoized the author forever to be known as an African-American fiction writer and limited to her own race for an audience. not too many white people over in the African-American section of the bookshelves.

you ask about other authors and lawsuits. How many bus arrests did you hear about before Rosa Parks? how many police beatings before Rodney King? the fact is that people endure injustice until someone brings it to the forefront. if you aren’t black you’re not likely to be aware until something like this happens and then you think it’s an isolated incident being blown out of proportion.

I’m not getting industry conspiracy from BSA. she’s saying that the author’s work was not allowed to be classified by the content and that can’t be allowed to happen. many black authors write African-American fiction and are fine with the label because African-Americans are their intended audience. clearly that is not so if Black went out of her way to write mainstream work. BSA is saying African-American authors should not be forced there because they are black. i’ve heard African-American authors saying they could never get away with writing non-black content. that’s what is expected of them. so I can imagine Millenia Black is challenging that status quo. why should her book be miss-labeled? it really is SO wrong.

36 David Wilson 01.30.07 at 2:58 pm

Say Ancient Reader:

“All people are factually created equal by God, don’t try to change it.”

What facts support this assertion? Equal how? Everyone is equally tall, equally beautiful, equally adept at writing fiction? You can’t possibly mean that.

The handling of “Millenia Black” is a perfect example of the damned-if-you-do, damned-if-you-don’t dilemma faced by many of those venturing to please minorities. Market her generally, and you’ve “failed to give special attention to the black audience.” Market her to a black audience, and you’ve “failed to treat her like anyone else.” I can think of a dozen other examples of this prickliness. How much longer can the patience for this last?

37 Ancient Reader 01.30.07 at 6:14 pm

For the purpose of my survey; of what race are you, my friend?

You said this:

“I think some of our deepest social confusion and animosity springs not from “racism,” but, believe it or not, its presumptive opposite: the notion that race “does not exist,” that it is irrelevant, and that racial and ethnic groups and individuals are fungible goods, if you will.”

David, I believe it’s the US Constitution that says all men are created equal, and the context of it appears to be quite presumptive of what that meant. I believe it means exactly what you’ve been dancing around evasively.

Just in case you’re still confuse about what’s racism, go and read BM’s complaint and the answer to it, I’m told that it’s now made available. Then the stuff may well get defined there to you.

38 Pamela Delfino 01.30.07 at 9:53 pm

quoting David Wilson—-
The handling of “Millenia Black” is a perfect example of the damned-if-you-do, damned-if-you-don’t dilemma faced by many of those venturing to please minorities. Market her generally, and you’ve “failed to give special attention to the black audience.” Market her to a black audience, and you’ve “failed to treat her like anyone else.” I can think of a dozen other examples of this prickliness. How much longer can the patience for this last?—-

oh no David—-your white sheet and pointy hood are showing.

why don’t you stay on topic? this author writes a book with the expectation that it will be labeled and designed for the content written, and you perceive that as looking for “special attention to the black audience.”? if you really believe that, then you are a racially prejudice person, so just come out and own it. you don’t think minority races are entitled to equal treatment.

I’m stunned at the slimy defences sprouting up to excuse this type of discriminatory treatment, while the specific charges of this Penguin complaint are ignored.

a fictional work with no black characters is designed with a black cover and stamped as african-american fiction, and you find that acceptable because its author happens to be a minority?

I doubt you’d be saying that if she were white and had the same expectation. I think you’re talking nonsense and anybody who’s not behind a sheet can see that.

I’ve never heard of a white author being asked to change white characters to black –just so the book can be forced into that genre– or lose their book deals. I don’t see where Millenia Black asked for “special treatment” because she’s black. please show us where you see it.

39 Walter Olson 01.30.07 at 11:07 pm

1) The full complaint and answer are now available at OnPointNews (complaint/answer, both PDF).

2) This post now being a week old, I’m going to close this comments thread; discussion can pick up where it left off in the comments at our new (Jan. 31) post here.

3) Some of the argument on this thread has been tending toward the personal and acrimonious. Both newcomers and longtime visitors are reminded that ours is a moderated comments section and I’m quite willing to start deleting posts if we can’t keep things on a constructive plane.

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