Author X has written a number of bestselling books; the publishing category is immaterial. Author X has a lot more fun being wined and dined at writer's conferences than actually writing books, so he or she starts to let her deadlines get closer. In a panic, as the delivery date approaches and not one word has yet been written, Author X subcontracts with a ghostwriter to write the next book, with the publisher's knowledge and approval. The book is published listing only Author X as the author. As mediocre as previous books by Author X were, this one is truly wretched. Nonetheless, Author X's legion of fans line up three deep outside bookstores to buy the latest $30 blockbuster bestseller "by Author X."
I only wish this was a hypothetical; it has happened at least five times in the last three years, and those are just the instances for which I have documentation that gives me reasonable confidence.
Author X's fans purchased the books on the strength of attribution to Author X. The books, however, were not written by Author X, and perhaps not even supervised by Author X. Remember Virgina Andrews? I bet she has a great deal of difficulty supervising from beyond the grave… even if "her" books are supernatural horror.
This past term, the Supreme Court dismissed the writ of certiorari it had granted in the Nike case as "improvidently granted" ("Oops, we shouldn't have agreed to hear this caseour bad!"). However, in Illinois ex rel. Madigan v. Telemarketing Associates (PDF, 345kb), the Court did hold that even solicitors for charity do not have a First Amendment right to lie while seeking contributions that outweighs state deceptive practices statutes that are intended to neutrally protect consumers from deception. This kind of reasoning applies to book covers, too; the Keimer case of a few years back indicates that the cover is advertising material, and that known factual inaccuracies on the cover that have both a tendency to deceive as to the value of the contents and a tendency to encourage purchase can be treated as deceptive trade practices. (The New York courts disagreed with the California courts concerning the same book, but on grounds squarely refuted by Telemarketing Associates.)
We are thus left with this: Is an attribution of authorship more like an AOC or more like a Big Mac? At least as to Author X's fans, the attribution is more like an AOC. For that reason, misstatements of authorship for previously published authors of the same general marketing category should at least be scrutinized as unfair or deceptive trade practices. Whether this extends to different kinds of books is a much harder question; consider, for example, Alan Dershowitz's recent forays into fiction, as compared to his scholarly and popular books on legal issues. The question is difficult enough, however, that it indicates that this all-too-common practice in the publishing industry is wrong.
There remains one more, perhaps even more insidious, variation on this practice. It has less to do with Stephen King/Richard Bachman than with Megan Lindholm/Robin Hobb. Yet another pitiful attempt at a cliffhanger…