Writers' Rights and Wrongs

A publishing house throws the book at one of its authors

It was bad enough when California courts ordered Novelist Gwen Davis and her publisher, Doubleday, to pay $75,000 last April to Hollywood Psychologist Paul Bindrim. He said he was defamed by Touching, Davis' 1971 novel involving an encounter group whose gig is communal nudity in warm pools. Now Davis, 45, feels doubly wronged: Doubleday has sued her for some $138,000, which includes legal costs, the money Bindrim won and interest. Several authors' groups and a number of writers, among them Irving Wallace, Gore Vidal and Joan Didion, have criticized the publisher for turning on one of its authors.

Davis contracted with Doubleday in 1969 to write a novel about two women who, in search of something missing in their lives, attend a "nude encounter workshop." As part of her research, Davis spent 20 hours at the Los Angeles center where Bindrim pioneered the "nude marathon," a therapy in which participants strip naked to gather in a pool, where they spend long periods talking and touching. Bindrim, 59, describes this as a way to teach people "how to be more open toward one another and to relate in a more authentic and satisfying manner." When Davis' book appeared, a central figure in it was Simon Herford, a pudgy, sadistic California psychologist with a Ph.D., described as "singularly Santa Clausy looking," with long white hair and sideburns. In 1971 Bindrim sued Davis and Doubleday, claiming that the supposedly fictional Herford was obviously he, and that the book's unsavory portrait was libelous.

When he arrived for the trial, the once clean-shaven Bindrim was sporting a full white beard and a recently acquired Ph.D. He produced tape recordings of the sessions that Davis attended; many of Bindrim's remarks appeared nearly verbatim in Touching. Bindrim was awarded $75,000--$50,000 to be paid jointly by Davis and Doubleday--plus $25,000 in penalties to be footed by the publisher alone. Last December, the U.S. Supreme Court declined to review the California decision, thus letting it stand.

Strictly speaking, the California ruling need not have broad implications for writers and publishers, since it came only from a lower state court and thus sets no precedent that courts elsewhere must follow. Nonetheless, many authors and publishers are understandably worried that it could spur similar suits involving other works of fiction, which in the past have rarely been the targets of libel actions. The Supreme Court's decision to let the ruling stand, argues Vidal, is thus in effect "a hunting license, a declaration of open season on almost any sort of novelist."

Writers are also riled by Doubleday's suit against Davis. Like most such agreements, her contract for Touching contains an indemnity clause entitling Doubleday to recover costs it may have to bear as a result of a libel suit. But publishers, including Doubleday, have rarely invoked this clause. This time, however, Doubleday felt Davis had not leveled with her editor on the potential for trouble. The clause has to be invoked sometimes, reasons a publishing house attorney, because "otherwise publishers would be at the total mercy of someone who walks in and presents a manuscript."

Perhaps. But authors also worry, with cause, that Doubleday's move reflects an erosion in the traditionally close relationship between publishers and authors. Bernard Malamud, president of American P.E.N., a writers' group, says that "P.E.N. hopes Doubleday will drop its suit. To go on with it implies approval of the disastrous effects of the court decision against the art of fiction and against the community of writers and publishers." Typically, as Thomas Thompson puts it, that community has in effect been "a partnership: the publishing house and the author get in bed to make money." But that is changing, largely because of the pressure of the huge sums involved in mass market publishing, in megabuck advances paid to writers for works that may generate millions in serializations and other spinoffs.

Satirist Kurt Vonnegut argues that in any case it is "quite hypocritical" for publishers to invoke the indemnity clause since they have encouraged writers to produce manuscripts where the lines between fiction and nonfiction blur. This genre has included many big sellers, among them Truman Capote's In Cold Blood, Norman Mailer's The Executioner's Song and Tom Wolfe's The Right Stuff.

Many writers and publishers believe that a way must be found to modify the indemnity clause so that it continues to place primary responsibility for accuracy on authors but does not impose intolerable financial burdens on them when libel suits are filed. For the moment, however, about all that the parties on both sides of the typewriter can agree on is that, as Writer Gay Talese says, "lawyers have become the third force in publishing." He adds: "I see them as the new enemy."

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