Saturday, January 06, 2007

Millenia Black's Complaint

I've been meaning to sit down and write this post for a few days now.

Are you ready for this? It took some effort, but I finally got my hands on a copy of Millenia Black's (aka Nadine Aldred) lawsuit against Penguin Group. My curiosity was at an all-time high and I was in NYC last month on business so I figured, why not? Let's see what exactly is before the court.

Without reciting the entire complaint, I'll skip through and share the sections/allegations that I find most notable. It's pretty heavy stuff, folks. Here goes........

INTRODUCTION
"This case involves racial discrimination by Signet, a Division of Penguin Group (USA) Inc., and by Penguin Group (USA) Inc., against Nadine Aldred, an author who writes under the pen name Millen­ia Black, in the making and enjoyment of all the benefit­s, privileges, terms and conditions of a publishing contra­ct. Defendants have engaged in discriminatory conduct in violation of federal and state law, as well as misleading advertising in violatio­n of the Lanham Act and violations of New York State common law."

FACTUAL ALLEGATIONS

8. In or about September of 2002, plaintiff Aldred self-published her first novel, entitled The Great Pretender, under the pen name Millenia Black. The work of fiction centers around the topic of ­marital infidelity, and contains an additional subtle component, in that all of its subject matter and characters are devoid of racial characteristics.
9. The cover art for the self-published version of The Great Pretender shows two wedding bands in flames and does not portray any people.
10. Aldred is not described by race anywhere in the self-published version of The Great Pretender and neither does her photograph appear.
11. After it was self-published as mainstream fiction/literature, The Great Pretender was well-reviewed, began to sell nationally in bookstores, garnered several inquiries for the sale of foreign rights and film rights, and garnered the sales of translation rights to publishers in Turkey and Poland.

12. In the latter half of December 2004, and as a direct result of the successful marketing of the self-published edition of The Great Pretender, Penguin became interested in Aldred’s current and future work.


16. On information and belief, defendants’ employee and agent, Kara Cesare, who was assigned by Penguin to be Aldred’s editor, asked plaintiff’s agent, Sara Camilli, whether she had ever met Aldred in person and whether Aldred was black or white. Camilli responded that Aldred is black.

17. For its version of The Great Pretender, Penguin revised the original cover art by superimposing two non-white women over the image of the burning weddi­ng bands. Penguin published and marketed The Great Pretender using the revised cover art.

18. Plaintiff objected to the use of false racial identifiers on the cover art of The Great Pretender, but Penguin published the work as such over Aldred’s objections.

19. Although The Great Pretender contains no racial classificati­ons of its characters, for the purposes of distribution and marketing, Penguin classified and styled the novel as African American fiction/literature and marketed the work as such to bookstores and the general public.

20. On information and belief, the classificatio­n African American fiction/literature is generally understood by the public to refer to the content and subject matter of the work.

21. On information and belief, novels classified and styled as African American fiction/literature are generally understood by the public to target a smaller audience than novels classified as general fiction.

22. On information and belief, novels classified and styled as African American fiction/literature are typically purchased by a predominantly black, minority audience.

23 . On information and belief, novels classified and styled as African American fiction/literature are not typically purchased by a white, majority audience.

24. On information and belief, novels classified and styled as African American fiction/literature are marketed to a predominantly black, minority audience.

25. On information and belief, the subject matter of infidelity is understood by the general public to be a universal topic.

26. Penguin classified, styled and marketed The Great Pretender as African American fiction/literature based solely on Aldred’s race, and without regard to the subject matter of the novel.

27. Aldred objected to such misclassification, but defendants refused to re-classify the book.

28.
On information and belief, Penguin would not have classified, styled and marketed the work of a white author as African American fiction/literature if such work’s content and subject matter had been racially neutral.

29.
On information and belief, if The Great Pretender had been written by a white author, Penguin would not have classified the work as African American fiction/literature.

30.
On information and belief, if The Great Pretender had been written by a white author, Penguin would not have altered the cover art to add women of color.

31.
On information and belief, Penguin knowingly and intentionally treated plaintiff Aldred differently from white authors due to Aldred’s race.

32.
On information and belief, as a result of defendants’ conduct, The Great Pretender was deprived of many commercial, mainstream marketing opportunities.


43. The Great Betrayal
focuses on marital infidelity and family secrets. As initially written by Aldred, The Great Betrayal’s characters are described as ­white.
44. After reviewing the manuscript, Penguin demanded that Aldred re-write the characters so as to render them African American or race-neutral.

45. Thereafter, Penguin showed Aldred its intended cover art, which portrayed an unmade bed with the face of an African American woman and the back of an African American man superimposed above it.

46. On information and belief, Penguin intended to classify and style The Great Betrayal as African American fiction/literature, based solely on plaintiff’s race and without regard to the subject matter of the book.
47. On information and belief, Penguin intended to market The Great Betrayal with the African American fiction/literature designation, which it knew would have the same limiting effects as the designation has on The Great Pretender.

48. On information and belief, if The Great Betrayal had been written by a white author, Penguin would not have demanded that the author edit the white characters to render them black or race neutral.

49. On information and belief, ­if The Great Betrayal had been written by a white author, Penguin would not have placed an African American couple on the cover.
50. On information and belief, if The Great Betrayal had been written by a white author, Penguin would not have planned to classify the book as African American fiction/literature.
51. On information and belief, defendant Penguin knowingly and intentionally treated plaintiff Aldred differently from white authors due to Aldred’s race.

52. After plaintiff threatened to sue Penguin for racial discrimination, Penguin withdrew its demand that Aldred rewrite the work to change the race of the characters, and advised that it would remove the African American couple from the cover art.

53.
Despite these representations, Penguin sent the cover art with the African American couple to African American Web sites including, but not limited to, Urban-Reviews.com, and retailers including, but not limited to, Amazon and Barnes & Noble, both of whose Web sites advertised The Great Betrayal for pre-order with the misleading cover art for several weeks.

54.
On information and belief, advance sales of The Great Betrayal have been negatively impacted, and Aldred will continue to experience economic harm as a result of such false and misleading advertisin­g.
55. On information and belief, a white author would not have been subjected to such racially discriminatory treatment by Penguin.

FIRST CAUSE OF ACTION

58. Plaintiff repeats and re-alleges the allegations con­tained in paragraphs 1-57 as if fully set forth herein.

60. Defendants violated plaintiff’s rights to make and enforce contracts without regard to race, as guaranteed­ by 42 U.S.C. §1981.

SECOND CAUSE OF ACTION
62. Defendants engaged and continue to engage in false and/or misleading descriptions of fact and false and/or misleading representations of fact with regard to The Great Betrayal as more fully set forth above.
63. Defendants engaged and continue to engage in false and/or misleading descriptions of fact and false and/or misleading representations of fact with regard to The Great Pretender as more fully set forth above.
64. Defendants’ conduct, as more fully set forth above, violates ­the Lanham Act, 15 U.S.C. §1125(­a).

66. Plaintiff was subjected to discrimination in her civil rights because of her race and color, as more fully set forth above.
67. Defendants’ conduct violated and continue to violate New York Civil Rights Law §40-c.

FOURTH CAUSE OF ACTION
70. Defendants violated the implied term of good faith and fair dealing ­in The Contract by, as more fully set forth above, treating plaintiff differently,­ based on her race, than they would have treated a white author with the same contract who had written the same books.

WHEREFORE, plaintiff respectfully requests that this Court:

D. Permanently enjoin defendants from further violating plaintiff’s rights, including, without limitation, not applying any racial designations to The Great Betrayal or any future work, and not engaging in any retaliation against Aldred;

E. Order defendants to re-publish The Great Pretender, forthwith under the following conditions: (i) a book cover with race-neutral art; (ii) classification of the work as mainstream/general fiction; (iii) a foreword containing an apology and explaining that the re-publication is due to the original misclassification and misrepresentation of the book as African American fiction/literature, a­nd (iv) sufficient marketing resources for the re-publicati­on of The Great Pretender to make plaintiff whole;

F. Award judgment for all the past and future economic losses suffered or to be suffered by plaintiff in the amount of $250,000,000.00.

Tell me that's not FASCINATING!! Me thinks one of two things: either 1) Millenia's got some legal experience or 2) an attorney wrote this complaint. I saw that Penguin had filed an answer in early December---but they did not move to dismiss. I didn't get a copy of the answer, I ran out of time. I figure someone else can dig up that piece of the pie; it would be awesome to see that as well.

I think this is extremely powerful stuff and speaks for itself. It definitely illustrates that the racial divide in the publishing world is very much a reality. Black authors aren't just bitching and moaning because they have nothing better to do. We're being marginalized and kept under a lid.

As you all know, I pray Millenia wins this lawsuit. I think I've said it before, that if she loses, it will mean publishers will have the legal right to discriminate against authors, continuing to force us to write by race, stripping us of creative liberty. My hat's still off to this brave lady for sacrificing so much to take a stand. She may not get quarter of a billion dollars, she may not even win the lawsuit, but I'm willing to bet she's made a positive difference already.

Please, feel free to share your thoughts, one and all.



18 Comments:

Blogger Karen Scott said...

Hey Pontiff, can I post this on my blog?

1/07/2007 11:10 AM  
Blogger Bestselling Author, Pontif. said...

Hi Karen -- of course you can, it's public record. Thanks for stopping by.

1/07/2007 11:17 AM  
Anonymous Anonymous said...

I, too, find this fascinating. I have a question though. Did the editor at Penguin buy the book before or after she inquired about the race of the author. It sounds like it was after they had bought the book, but then it's not clear who at Penguin actually bought the book.

I only inquire because I wonder if another appropriate clause might be:

XX. On information and belief, Penguin would not have bought the work if the author were not African American and the book could not be marketed as African-American fiction.

This clause gets at the notion of there being different stsndards for contemporary fiction written by African-Americsns and targetted for African-Americans.

I hope someone posts Penguin's answer and I wish Millenia the best.

1/07/2007 11:55 AM  
Blogger Karen Scott said...

Thanks Pontif, this is truly fascinationg, and I wish Millennia all the luck in the world, although I'm not so optimistic that she'll win this.

1/07/2007 12:06 PM  
Anonymous Anonymous said...

Okay, fine to all the points... but why in the world would Penguin deliberately want to appeal to a smaller audience? You think they're out there wringing their hands, trying to take black people down? Multicultural literature is selling well; from a marketing perspective, being of color (whether it be black, asian, latina, whatever) is a benefit. It makes you interesting; it makes you different. I'm a published author, and I know that my publishers will utilize anything they can to get me the biggest audience possible. It just doesn't make sense that they would deliberately try to hinder her because she's black. They don't care; they want the books to sell. Plus, $250 million? Seriously? Even had the book become a bestseller, she wouldn't have made that kind of money. Three people in the industry make that kind of money; the rest of us have day jobs. If she loses, it'll have nothing to do with race. It'll be because the claim is outrageous and unfounded.

1/07/2007 3:19 PM  
Blogger Bestselling Author, Pontif. said...

Anonymous #1 -- I don't know when the editor asked the question and I don't think it matters. Everything's going to boil down to the contract and whether it specified they were acquiring an AA title/s. It would seem really disingenuous if MB sold the book as AA fiction and then sued when they handled it as what she sold it to them as. That doesn't fit logically since we know she went to great pains to self-publish race-neutrally. Why would she sell them the book as AA, then turn around and flush her career down the toilet? No way. By virtue of common sense, my money's on Millenia's account of the story.

Hi Karen -- I don't know if she'll win either...TBH, I'm inclined to think this will be settled out of court. Either way, it is a much-needed lawsuit. We all feel the heat of racism in publishing but we're too chicken to risk losing the "scraps" we get from the margins of the industry to challenge the Massas. Millenia obviously isn't though, and thank God for that. I'm beginning to see her as the Rosa Parks of book publishing.

Anonymous #2 -- This weak defense you're offering for discriminating racially is old. No one's asserting "conspiracy theory" to keep black people down but you. Seeing people as a color first and a human being second is what you get from your "marketing perspective" -- and we've been letting it continue year after year, all of us. That's what needs to stop. No one is challenging the reality that multi-cultural literature sells well. Why assert that fact here as if we've said otherwise? Why detract from the problem? Let me ask you this: Did Millenia Black write multi-cultural literature? No she did not, and I know because I read her first book.

And let's not try to justify slating books as AA just because the author is black. Let's not even go there anymore because it's clear that is RACISM.

As for the damages, I say she should shoot for the moon....some quote out there says you're more than likely to land among the stars. Besides....the more I think about it, who is to say that if her books had not been treated racially and she HAD gone on to become a first-time author bestseller, that she wouldn't have had a career in the industry that commanded that much? Who's to say? I say, as long as you're askin'....why not? Take 'em to the cleaners if you can.

1/07/2007 5:19 PM  
Anonymous Anonymous said...

Anonymous #1 here:

BSF, you miss my point. There may be two types of discrimmination going on in the Black case. If the editor asked her race BEFORE making the decision to buy her book (or, even if race was a factor in the decision to purchase), then that is as racist as marketing the book based on race. So I do wonder if the editor would have bought the book if the author were not African-American and the book could not be marketed as African-American fiction. MB's case seems to suggest that they would, but I certainly would like to know definitely.

I guess this boils down to whether the P&L for her book looks different (or how different does it look) if her book is marketed African-American or generic. It would seem that a publisher would do this P&L before making an offer, thus the marketing decision would have to be made before making the offer, meaning the race decision is factored into the P&L. To be proactive, it might be a good idea if AA authors began asking their editors this question about P&L and their books. I'm not sure an editor would do it, but it would be interesting to see what the P&L looks like if the book were not marketed as AA.

I can see one way that the P&L for a AA book might be different. For example, most non-genre AA books these days are published in trade paper (the standard for non-genre AA books); non-AA books are typically either published as mass market or hardcover. I would imagine the P&L statements look different.

I'm not saying that MB shouldn't pursue her law suit or that I don't wish her well, but I do wonder about the multiple types of "race consideration" that may be embedded in the process.

1/08/2007 6:45 AM  
Anonymous Cylinda Villow said...

A#1 said:
I do wonder about the multiple types of "race consideration" that may be embedded in the process.
--------------

Who do you think that "race consideration" discovery would reflect more negatively on in court? Millenia Black or the publisher?

I'm facsinated by this whole thing! It's going to be very very interesting no matter where it leads.

1/08/2007 9:06 AM  
Anonymous Rebecca Donna Tricolli said...

Pontiff: thanks for posting the complaint. I've been watching Ed Champion's site for it but I think he's likely too ashamed to continue with his biased "reporting" on her situation.

I've never doubted Millenia Black's credibility or the veracity of her position. I believe she will prevail in this, but not likely to the tune of $250 million dollars since she's a UFO in the industry. I should think it must've been a strategic number.

1/08/2007 10:10 AM  
Anonymous Ancient Reader said...

Plaintiffs don't prove allegations in pleadings. They're only required to make factual allegations that if proven true, courts may grant relief.

The threshold is low surviving a motion to dismiss. Your case wouldn't be dismissed because you asked for too much cash, it's an issue for juries and judges to decide later in the case.

1/08/2007 11:35 AM  
Anonymous NAL Insider said...

....Penguin's counsel is extremely nervous about this lawsuit. This is a hybrid situation and word is the demand of race change was ill-advised. The editor may be let go....ahem....choose to pursue other endeavors. Word is the author is an attorney or she is being advised by one behind the scenes......Insider.

1/09/2007 5:57 AM  
Blogger Bestselling Author, Pontif. said...

Anonymous #1 -- In most cases, we black authors know that our books are being acquired exclusively for the AA niche; ie. If that niche didn't exist, they would not be buying our book. Period. We go into the deal knowing this. We can't write white characters because we would not be welcome in the AA niche. So that leads me to believe that if this was the case with MB, why did this problem even come about? Why would the editor ask if the author was black? Couldn't tell from reading the manuscript?

Ding, ding, ding!

As for P&L. There's no doubt that those figures are much different for AA titles. That reminds me of a comparison someone made that I read (don't remember where right now) of Zane and Jennifer Weiner. Zane was saying that her books have been translated into a few foreign languages--Zane has written dozens of books to date. Weiner on the other hand has written far fewer books (maybe 4/5) and is currently translated into far more languages than Zane ever could be (at least without going incognito with another pseudonym).

Weiner was fortunate enough to make THE LIST with her debut book. Zane probably made it with her tenth (not sure exactly which one, but it was certainly not her first), it was after years of her building an audience among the black readers her work is most viable among, and saturated it. There's your difference.

The P&L figures for Weiner's next book and Zane's next book are as different as night and day, I'm sure. And Zane's been at this game a hell of a lot longer than Jennifer W.

Cylinda -- It definitely can't reflect negatively on Millenia. But it makes the publisher look like the racially discriminatory organization they refuse to see themselves as. To them, it's nothing more than good marketing.

Rebecca -- I'm inclined to agree about Ed Champion. He is now hiding behind his white sheets but no doubt has holes poked in so he can quietly observe and pounce to attack the slightest weakness in Millenia's case--the very same case, mind you, that he and Scanlon went on record saying she lied about filing. If they've apologized to her privately, they've said nada in the wake of their public lynch-fest, which I think is a shame.

Ancient Reader -- Excellent points.

Insider -- If your information is correct, the editor will be an easy mark. But it will send a strong message: The race of your authors is none of your BUSINESS

1/10/2007 9:03 AM  
Anonymous Ancient Reader said...

BSA writes:

"Insider -- If your information is correct, the editor will be an easy mark. But it will send a strong message: The race of your authors is none of your BUSINESS"

I love that statement entirely.

I'd like to see the anger of many ill-advised minorities, more specifically some of those opposing MB's complaint, converts into objection that repulse racist enquiry in this context. One that assaults their very own integrity.

Minorities showing up anywhere and denouncing such judicial valiant effort by MB, advocating for every author's well deserved right in publishing-- shows that there's serious deficiency of intelligence on their part to appreciate what's in their best interest.

That kind of disorient manifestation by folks of color, provokes my indigence, to "biting the horse's heel and allowing its' rider to go backward".

Zane is a classic example of making such senseless public speech affecting MB's lawsuit troubles. Though I'm not in doubt that she's a kind-hearted woman on the other hand. But clearly, my friend Zane has a profound ability to write and excite readers about male and female's genitals that brought her wealth... however that talent didn't automatically converts into meticulous psychological tact in speech presentations.
Some of her fans in their writings about Zane seem to think she can do no wrong matters not how poorly or mistakenly she presents herself. They say Zane is rich now so that doesn't matter. It doesn't? (That's only true of low-class and backward blacks)Even Zane might think so. And if she thinks likewise, that trend in thinking is not good for a roll-model. Does it? No! But where you've the blind leads the blind, all falls in a ditch. Intelligence is not companion with wealth, though in a way sometimes may carry some connections

1/11/2007 3:16 PM  
Anonymous Anonymous said...

Zane really is low class tryin to be upper and she does blow her own horn too much. How much brain does it take to write and build a mini-fortune on porn? Then going after Millenia Black the way she did? She needs to sit down somewhere and continue minding her porn business.

1/12/2007 11:44 AM  
Anonymous danceandkiwis said...

I was really excited and irritated to find out about this case. I'm a writer struggling with the same issues that Ms. Black is dealing with, and I hope that she does win, because I don't see any other retribution for what has been done to her novel.

To me, it seems that Ms. Black was doing quite well on her own before Penguin became involved. They wanted a piece of the pie, as unfortunately the publishing world reacts more to sales than quality and a book's potential to touch people. But then afterwards, for whatever reason they thought they could make a larger profit by proposing the book to a predominantly black/minority audience.

At first glance, that just seems silly, but apparently it is becoming more and more possible to make quite a chunk of change by exclusively marketing to black audiences, without bothering with "general interest" if you have the right goods.

I'm excited because this case is validation that there is a problem in the industry. But I'm irritated that this problem even continues to exist. I've asked myself and I'm asking you, is there really a difference in what interests one race as opposed to another? Hip-hop used to be "exclusively black" but it has broken A LOT of barriers and now it's been elevated to the status of color-blind art. That is motivating. Why should literature, especially literature that deals with universal values be limited to a color? I don't know, black or white, if you're cheated on, you're pretty pissed aren't you??!?

7/09/2010 2:13 PM  
Anonymous black expressions book club said...

250 million is a small price to pay for discrimination!

7/30/2010 1:21 PM  
Blogger Timothy Aldred said...

Penguin settled the case with Millenia Black and included a gag that she never discuss what they did again. Certain details that were uncovered during discovery are too important to stay covered up, so I wrote the book WHY THEY GAGGED MY DAUGHTER to make sure they don't stay buried.

Read the sample on Amazon.

8/27/2010 3:54 PM  
Blogger Timothy Aldred said...

Book trailer for WHY THEY GAGGED MY DAUGHTER:
http://youtu.be/-vZ17RH47m4

Tim Aldred

2/22/2012 6:51 AM  

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