One Year Later.

All right, still missing close to 1,000 books from the old site, many of them noirish, but have around 18,000 up, so getting there. There are some differences in presentation between the books you see here at our Bangsian Fantasy and the ones on Black Mask, but I do support Sony Reader these days and the HTMLs and PDFs are much prettier. Now might be a good time to mention just what happened. If you’ve got a minute.

I want to apologize for both the interruption in service and the impression some people might have gotten that I intended a drawn-out legal battle over the issue of adverse possession in copyright. Thing was, Conde Nast’s behavior (waiting 7 years to come after me for having Doc Savage and the Shadow on Black Mask, then doing so Christmas Eve 2005), was prima facieMen’s Vogue, so the goal was always to hang on long enough that I could uncover what their dirty little secret was. Adverse Possession, and the substantial public benefit of giving away top-notch boy’s books at a time that publishers had decided boys don’t exist, let me last through the discovery phase… and cost them film rights to both Clark Savage, Jr. and Kent “The Shadow” Allard.
evidence of a company with something to hide. And I will not be intimidated by the publisher of

I represented myself in this. It isn’t that you can’t find an attorney in Washington. Back when I had a job editing NPR transcripts I had four of them as typists–five, if you count Paragraph Boy. But the political culture in my neck of the woods is such that, if you want something done, it’s cheaper to, you know, bribe a Congressman, take a Senator to the Caribbean or maybe enroll some regulator’s kid into St. Alban’s, rather than go through the cost, messiness and vagaries of the court system. You’ll have to do a lot of digging to find a competent litigator in these parts, and it ain’t like you need a Harvard degree to lose a copyright case, so I didn’t scout locally.

Of course, there are academics interested in ebooks and copyright issues. But what I was up to was blatant commercial infringement. Heck, I printed over 100 Docs. And even if certain persons or organizations had taken an interest in my case (I never asked), my plan for handling the situation was not jam-packed with the integrity required of a sworn officer of the court.

Now, thanks to a surprisingly large number of donations when this started, I had paypal that I used to consult with one (out-of-state) attorney, who read a few of the documents, offered that he didn’t want to bleed me any further, and advised me to settle as soon as possible. You’re never quite so lonely as when you realize that a lawyer won’t take your retainer, but Dusty still curled up in my office, my wife reminded me about that condo we bought in Shanghai a few years ago, and thanks to one of the more successful imprints of Disruptive Publishing, I’ve been living with the ghost of a guy who would have taken one look at the suit, filed it away with all the other “no jails,” and had another sip of wine.

Maurice Girodias, founder of the Olympia Press, faced a constant barrage of obscenity and infringement suits throughout his career. Win or lose, he always fought, and made not a little bit of legal history along the way. Interestingly, the reborn Olympia Press
has been 80% of my sales since ’03, and walking in Maurice’s shadow, I figured the least I could do was emulate him. After all, a lot of people really liked Doc Savage and the Shadow, so much so that they’d scan them, proof them, format them, and hand the files off to me.

So, to follow in Maurice’s footsteps, the plan became: throw a bunch of crap in everyone’s face, hope for discovery, extortion optional, and under no circumstances get involved with young women in New Jersey. Modern copyright law had become a joke; maybe I could make it a funny one.

Note that, after Black Mask was taken down by Conde’s DMCA notice, enough people were unhappy that I did immediately offer to settle, effectively capitulating and giving them everything they’d want. And that was my intro. But Conde’s attorneys not only rebuffed that measure, they in fact opposed every request I made to gain access to servers with over 20,000 free books (and hundreds of thousands of files), while at the same time swearing they were not intending to harm my business. Had they taken the deal then, they’d probably be a lot happier now, because last May I not only didn’t know what I was doing, I didn’t even know what I was looking for.

Lead counsel for the plaintiff was David Mills, a Duke Law graduate, formerly of the Justice Department and senior “Hiring Partner” at Dow Lohnes. If you’re unfamiliar with Dow Lohnes, it’s a DC firm of some note, but not quite Connecticut Avenue. I did at one point explain to Mr. Mills that despite everything I still liked him, as the first good story I ever wrote featured a mediocre attorney with short-man syndrome.

Mr. Mills was aided in this matter by two junior assistants, one other partner, a research-only firm, and of course Conde’s lead attorneys in New York. Also on scene were three process servers, one notary, a cameraman for my deposition, no doubt a research librarian, and a transcriptionist who may or may not have been into heavy bondage.

I had Kinko’s and google, so the above might seem a bit like overkill. Particularly given the strength of Conde’s case. I was being made an example of. But after dealing with these people for a while, I got the feeling that, as intellectual property barons go, Conde Nast is West Orkney.

Reason for the deposition is a bit complicated. After Conde rebuffed my settlement offer, I mostly hung around, worked on Olympia, finally got around to the Asian classics thing, and read the news. There was a story about the heirs to Steinbeck recapturing their father’s rights under Sec. 304 of the copyright code, something you can do after 75 years. Interestingly, the same weekend Conde shut down Black Mask, I’d attended the Windy City Pulp show, where the theme was the 75th Anniversary of the Shadow. Coincidentally, I pretty much sold out of my Doc and Shadow reprints at this show, and while there got a nice booklet telling me how Walter Gibson had created the character.

Looking into recapturing of copyrights, I also found also other cases where authors or their estates got to terminate a bad deal. Several of these “recaptures” involved comic characters, like Superman and Captain America. I contacted Mr. Mills about this, also mentioning that, really, Conde had better turn my server on, pronto, and asking additional compensation for the inconveniences I’d suffered.

For some reason, Mr. Mills’ client did not acquiesce to my requests. I puzzled over the matter for a while, and at the end of June, after exhibiting at an Olympia-only show in New Jersey’s Raritan Center where I somehow managed to avoid a particularly enthusiastic young woman, I made a “discovery request” to Mr. Mills for certain documents regarding the Shadow’s origins, rumored film negotiations with Sony and the producer of Batman, and just about everything they had Doc Savage-related.

So, next day I get another process server, with interrogatories and a demand that I present myself for a deposition to go on for “as long as it took” to discover whatever it was. I countered back with a rule stating that the deposition could only go for 7.5 hours, as well as elaborate parking, air conditioning, conduct, and beverage requests, which I sent along to the judge as well. Had to take metro, but everything else was agreed to.

For the record, at my deposition, they did get me. Zinged me at the end, and for a full 10 minutes I really did forget that I never had any hope of winning. I blame fatigue, and will be better prepared for the next deposition I undergo. However bringing me in person to meet the team was the dumbest thing they could have done.

Mills, the attorney, had more telling signs than a 14th St. crack whore. I swear, when he lied, the head turning, elevation of pitch, rapid blinking, you name it. He was also easy to provoke. At one point I had him pounding the table, like a mattress salesman who’d lost his customer at “payment plan.” Best part was when he asked me what my theory of the “Shadow Agreement” with Gibson was.

I go, “I don’t know, maybe it’s like Captain America, with no contract up front for the creator but some kind of later agreement.” And Mills didn’t say a word, but his eyes got big, like the jewel in the pommel of the sword that slew Grendel’s mother. There was a 10-second pause, and then he switches the subject to “what percentage of your advertising revenues derived from your infringing of Conde’s rights?” “For years I sold ebook CD-ROMs on Sleazebay because advertising sucked. Then ebook DVDs. Then I added a second imprint. Black Mask made people happy, but in purely economic terms the value of having lots of readers of free books was that some of them might buy things from me elsewhere.”

Not 15 minutes later we have a break.

There’s a settlement conference after this, where I’m supposed to be “beaten,” but I mostly come in as friendly. Mills is there, with his best face on, but still overcompensating. Their offer at this point revolves around limited damages, but Mills is determined to get his summary judgement, as otherwise people might have thought I’d won. Of course, he opines that, whatever happens with the estate of Walter Gibson, “happens.” I offer back, fine on the damages, I’d like my server with 20,000 free books up in time for the school year.

Meanwhile, Conde, having read my booklet from the pulp show about the Shadow’s origins, contracted with John Gunnison of Adventure House, letting him republish an earlier pulp magazine they had the rights to, which a couple individuals who had business dealings with Conde Nast claimed were the actual origins of the Shadow.

Anyway, they weren’t really interested in getting my site up for the school year. After this meeting, a junior attorney, Brad, kept contacting me with additional discovery requests (printouts of tax forms, etc.) I’d complied with all of them up to the discovery deadline, so I denied his requests, while asking repeatedly for my own still-unfurnished documents. Brad got nastier as time went on, but I’d met him in person, realized he was the experience-deprived offspring of overly ambitious parents who had not known love, said as much to him, and thanked him for helping me solve a vexing problem.

The dirty secret Conde’d been hiding, by the way, related to the film rights of Doc Savage. Lester Dent, Doc’s creator, signed over print rights when the first novel published, but kept movie, radio and comic rights for himself. Dent died in the late ’50s. In 1971, with Doc reprints selling in the millions and Dent’s childless widow, Norma, living in poverty, Conde sent a rep to Norma, and bought the film rights to Doc from her for $2,000 with $8,000 later… as after all that was such a big amount and they had to make sure the George Pal thing would happen.

Something from Brad reminded me about another Termination Clause (Sec. 203) in the copyright act, this one taking place 35 years after the deal was signed. I thanked Brad for the conduct that had so helped me to focus my mind, and relayed documents
on how to recapture their film rights, estimated value $20 million. I also filed a motion to compel against Conde for the Shadow documents.

Now there was no direct contact between myself and the heirs, so I don’t know that anything was filed. The agent for the Dent estate was often an employee of Conde Nast, explaining perhaps why Doc didn’t start reverting to Norma 30 years ago, when she was still alive and might have benefited. However, relations between myself and Conde’s attorneys, which had been so cordial up until then, took a decidedly darker turn.

I’m sure legal scholars will wonder why, based on other motions I filed last autumn, I wasn’t executed. Long story, the judge refused to grant summary judgement, probably just wanting us to make nice and go away. Conde wasn’t up for that, so knowing defeat was inevitable, I spent a lot of time just trying to get into Mills’ head. You know, playing either a wounded adolescent or borderline sociopath in my communications, depending on the situation and my mood. Irony here is that, if someone other than Conde had dominated the American discourse for most of the ’80s and ’90s, their attorneys might have known I’m really good with dialect, and so to take it all with a grain.

This was a childish strategy, hence ideally suited to the matter at hand. Besides, when rattled Mills would bundle his sentences together in a matter I’d not seen since editing Paragraph Boy, and this case was about nothing if not nostalgia. My tactics also worked on two more important occasions.

First came at the hearing on my requests for discovery. I phoned in ready with some BS about the chain of title and so forth, but Mills himself had a story about a long, drawn-out search by Conde for non-existent contracts with Gibson at the Shadow’s creation. So once I calmed down (it was my first discovery hearing), I piped in on Mills’ spiel with an “I’ll take an affidavit.” The presiding magistrate, not wanting to hear more from either of us, agreed, and ruled for me. I didn’t get sanctions, though.

Second victory came, oddly enough, after the judge finally gave them their summary judgement. I suppose I could have appealed, but, you know, it was time for the grownups to take over. And actually, judgement was granted to Conde about five minutes after what I’d told the judge what I’d done with the Dent estate, though the matter was not made official until the clerk verified I’d received every single document that I requested. If that letter hadn’t worked, I would have had to ask the judge to speed it up, ‘cuz I needed to know whether or not I should a paper to help cover the damages. I was bored.

Anyway, I go back to Dow Lohnes in early December, and at this point Mills is confident and magnanimous in victory, as only an attorney who’s taken on a basement-dwelling 10th-grade high school dropout and cost his client two movie deals can be. Guy’s there with his limited damages, and a well-crafted, highly demeaning procedure wherein I could again gain access to my hard drives and the 20,000 books stored there under the watchful eye of Dow Lohnes personnel, for a price.

Couple weeks later, Mills emails me, say they’ve had a problem accessing my Linux-based hard drives. He assures me his IT personnel were “good,” but that they’d need assistance. I had evidence to the contrary about the competence of his staff, but given the time involved and additional costs, it was cheaper to go with a new site and new layout. There are some unique-to-the-web works by 17th century women writers that didn’t properly backup, and the reviews are gone (blackmask’s backup was… which they took away too) but everything else Black Mask had is here or soon will be.

Nowhere in his “limited damages” or copious description of how I’d get my property back did Mr. Mills bother to include anything about a non-interference clause governing film rights to The Shadow, a fact I informed Mills of the Friday before Christmas, 2006, when he tried to slip such a clause into the agreement. He freaked, but I hit him one more time with borderline sociopath, and Conde signed.

Then I went and talked to Ross Charap, partner at Moses & Singer and the man who won Captain America, about The Shadow, about certain similarities to his Captain America victory (as Joe Simon first sued over Cap in the ’70s, Gibson sued for the Shadow in the ’50s.) Mr. Charap is now a specialist in Copyright recapture, and certainly seemed willing to hear more.

Because of protective orders and a judge who no longer liked me, I ended up having copies of all the documents I could give bound and sent to the home of Dr. Robert W. Gibson, past president of the American Psychiatric Association and son of Walter. Things got very quiet after this, and nobody really wants to talk to me anymore. However, a couple weeks after the documents were sent out, Conde’s attorneys seem to have read their first pulp in decades.

No, not a Shadow or a Doc, but that Adventure House reprint of The Shadow’s “supposed origins.” They then had John Gunnison pull the work from publication immediately. Mr. Gunnison, by the way, is one of the worst victims of this whole thing. He’s an honest and ethical man trying to make a living in the pulps. Between myself and Conde, he’s been stuck with a lot of unsellable inventory. And if you’ve ever been to his basement, you’ll find an underground storage facility with more tunnels than in Going After Cacciato. The man just didn’t need more stuff of any kind. Please, if you’re into pulps, buy something from him before he acquires another Quonset hut.

It’ll take a couple years, barring settlement for these things to play out, and my role in the matter is essentially done. Most of what was affected by this case revolved around film rights to Doc and the Shadow, not books, which may or may not be reclaimable. However the estate of the third-best-known author from Conde’s predecessor back then has copyright attorneys on staff, so they might be willing to look into things and establish case law on the individual books.

I’ve got some travel scheduled, including heading to NY tomorrow for Book Expo America and free drinks, but I should return this site to daily updates by the end of month. Cheers.

David Moynihan
Disruptive Publishing (forthcoming)

About dmoynihan

Me here.
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  • Bhakti

    I have no idea what this lawsuit was about, but this post read like a pulp novel itself–I’m sure this was the author’s intention. The funny thing is, halfway through the post I realized I had been reading in Bogart’s voice. Yes, it was like Sam Spade was dictating the post to me. Haha!
    I’m off to Wikipedia to research Black Mask.

  • Pennyworth Books

    Missed you at the last two year’s worth of events. Stop by and say hi next time!

    Bill @ Pennyworth Books