I Forsee Copyright Problems (UPDATED)

A left-leaning publication house called OR Books is going to release a book called Going Rogue:  Sarah Palin An American Nightmare on the same day that former Governor Palin's memoir Going Rogue: An American Life will be released.  The font, layout, and cover illustration of both books are very similar.

OR Books is in some trouble if they go through with this plan, I should think.  It's not that they can't criticize Gov. Palin, -- it's that they can't do it by poaching her intellectual property.  The book is, I presume, a for-profit venture by Palin and she's entitled to trade off her own ideas (or those given to her by her publisher, who is definitely in it for the money).  For the record, I think publishing a book with an eye to selling it and making money from the sales is a very good thing to be doing and I wouldn't begrudge Palin a penny of the royalties she earns.  Similarly, if OR Books thinks there is an audience for an anti-Palin book, well, she's a politicians so criticizing her is fair game and they, too, are entitled to whatever profits they can earn from the market.

Now, the title is different and there is certainly no problem with using a photograph fo Palin to illustrate the contents of a book critical of this public figure.  But it's really difficult to look at the two books side-by-side and conclude that one didn't intentionally steal the artwork from the other -- and do so with the intet to confuse a potential buyer.  I consider myself a fairly attentive consumer, one who looks closely at details -- and someone who was attuned to the issue before approaching the subject matter.  Still, I was confused.  If an attentive, legally sophisticated, and pre-advised consumer was confused as easily and thoroughly as I was, the "average" consumer would almost certainly be led astray to the point that it would be little better than chance to have bought the actual correct book.

That is the essence of copyright -- you can't take someone else's work and pass it off as your own.  The EW article I linked to below shows yet a third book called "Going Rogue," this one also critical of Palin -- but at least that one has artwork sufficiently dissimilar from Palin's real memoir that I would have had no doubt about what it was I was buying and what to expect in the book.

If OR Books goes through with its plan, I kind of hope Sarah Palin sues them for all they're worth. I'm not a particular fan of Sarah Palin but she's entitled to write, market, and sell her book on fair terms.  There's plenty of ways these OR Books dudes could have made their point and sold their book without intentionally confusing people or stealing Palin's intellectual property.

UPDATE:  Good points here from Prof. David Post at Volokh -- the applicable standard in copyright is "beyond fair use," and fair use includes parody or criticism.  But in trademark law, confusion is the applicable standard.  So maybe there is a good defense to copyright -- but "fair use" in the trademark context is very different than "fair use" in the copyright context.  A "fair use" of someone else's mark is what happens when you compare attributes of your product or service with the competitor's.  There is another point -- the OR book critical of Palin will be sold in paperback, and the actual Palin memoir, at least right away, will be sold in hardback, which is usually a larger size than a paperback.  But I still say that the obvious intent is not just to parody the real Palin book but rather to emulate its look a closely as possible.  And even if it's non-actionable plagiarism, that's still pretty scuzzy.