Publishing is not exactly the least self-destructive field of endeavour on the planet. At the beginning of the chain, we have the challenges faced by authors. As I know all too well from my own clientele's problems, the industry believes that "You're only as good as your last book's first-quarter sales." In turn, that means that authors are far to eager to quit their day jobs. That's true in the US or in the UK. As that article notes,
The accuracy of BookScan has created a scenario in which established authors are judged by their past, whatever the nature of their new book, and debut authors, who by their very nature have no sales record, are judged by their potential. Consequently, they are more likely to hit the jackpot when their book is auctioned. A book by an author unsullied by "failure", who looks likely to wow Waterstone's or Tesco, inspires a reckless confidence in publishers and a bidding war breaks out, especially if it looks likely to hit the target with the hugely influential Richard & Judy Book Club, which can lift sales by 100,000 copies in a week. This is why over the past year record advances have been paid for a string of debuts of which only a handful can hope to earn back, while established authors have been forced to accept less or be dropped. But the simple fact is that in their desperation to find obvious hits, publishers are over-estimating the sales potential of too many first books and TV tie-ins, and setting authors up for early disappointment that marks them as failures because they did not earn back.
(paragraphing corrected for clarity) This, too, turns on another myth promoted by the publishing industry: That the publisher has not earned a profit on a given title until its advance has been earned back. That is definitely an argument for another time, but suffice it to say that the double-counting and misallocation of some expenses, combined with certain off-books income (e.g., from remainders), means that the break-even level is ordinarily closer to 70% of the advance. At current price levels, that works out to about 550 copies sold per thousand dollars in the advance for a trade casebound book. Although that level certainly sounds achievable, it may be harder than it looks.
Then, too, publishers don't help themselves with inconsistent branding. Leaving aside the problems created by market/publisher-imposed pseudonyms, publishers don't do a very good job with titles. Don't kid yourselves: the title is marketing material, and virtually every contract on the face of the planet gives the publisher the final say on a book's title. Even when a publisher does come up with a good, distinctive title, publisher's don't do a very good job of protecting them.
Titles cannot be copyrighted, but authors have been known to claim rights. In the early 1990s, publisher Otto Penzler was ready to release Stephen Solomita's A Good Day to Die, only to be contacted by the lawyer for a writer who had already used that title. "The lawyer said, 'This is our title' and 'You can't do that,'" says Penzler, who currently runs Otto Penzler Books, a Harcourt imprint. "So I looked the title up and found there were 13 titles that preceded his book. And I said, 'Which of those writers did you steal that title from?' And I never heard from the lawyer again."
Hillel Italie, "Say That Again? Books Recycle Titles" (11 Apr 2006) (paragraphing and typography corrected). Yet another example of the publishing industry's neglect of trademark principles and law.
Last and definitely least (for today, anyway), a leading UK copyright lawyer comments on the "kamikaze" nature of the Dan Brown lawsuit.
The claimants were unable to establish convincingly what the fifteen or so central themes of [Holy Blood, Holy Grail] were. The judge considered four or five of them were absent from both HBHG and [The DaVinci Code]. He considered the central theme argument was an artificial contrivance created for the trial. If the claimants could not say in a coherent way what the central theme was, how, the judge wondered, could they claim Brown had copied it? The judge's dissection of HBHG's scholarship — without revealing the ending of DVC — was a tour de force. While he had some doubts about Brown's downplaying of his use of HBHG as a source and while he felt that Blythe Brown's absence from the trial was probably due to the fact that she had used HBHG more extensively in her researches than Dan Brown cared to admit, he was satisfied that there was no copying and that these shortcomings made no difference to the end result.
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The winners? Dan Brown; Random House, publishers of both HBHG and DVC, Henry Lincoln who receives increased royalties for HBHG but no legal bills[,] and the film of DVC with its worldwide pre-launch free publicity — and, of course, the lawyers.
David Hooper, "The DaVinci Code Trial: The Kamikaze Case (17 Apr 2006) (ellipses mine).