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HARLEQUIN ENTERPRISES v. WARNER BOOKS

July 11, 1986

HARLEQUIN ENTERPRISES LIMITED, Plaintiff,
v.
WARNER BOOKS, INC., DONALD PENDLETON, and SCOTT MEREDITH LITERARY AGENCY, INC., Defendants



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.:

Truth fears no trial. --Thomas Fuller, Gnomologica

Justice is truth in action. --Joseph Joubert, Pensees

 Every man stands trial for his actions at one time or another. I have no fear of universal judgment or the verdict that, inevitably, must be handed down.... --Mack Bolan

 To Justice

 Dedication, "Don Pendleton's MACK BOLAN, 'The Trial,'" (Gold Eagle 1986).

 PROLOGUE

 In 1968, Don Pendleton, an aerospace engineer and part-time author, wrote a book called "War Against the Mafia." It was published by the then-fledgling Pinnacle Books Company ("Pinnacle"). It introduced to the male adventure-reading public a new hero named Mack Bolan. Bolan, trained by the military as a combat specialist and sharpshooter, returned from the Vietnam jungles to find that his family in the United States had been wiped out by the local Mafia. He launched a personal war against the Mafia, applying his military skills and tactics, to track down and kill its members wherever found. His was a crusade against evil. The back cover of the most recent Mack Bolan book, "The Trial," provides this description:

 I am not their judge. I am their judgment. I am their executioner. With those words Mack Bolan, a Vietnam hero, embarked on an odyssey of blood that would mark him as the most controversial warrior of modern times.

 With ultimate faith in his ability to make a difference, the justice fighter saw it his duty to protect the weak and the innocent from all-consuming evil.

 "War Against the Mafia" and Mack Bolan were an immediate success. A series of 38 books written by Pendleton *fn1" -- "The Executioner" series -- followed. In the books, Bolan executed members of the Mafia all across the country. The constant element was killing on a massive scale. Terse dialogue spiced the violence. Each killing was described in explicit and gory detail. Paramilitary tactics, weaponry, and terminology were heavily emphasized. Pinnacle and its distributors termed this new type of "blood and guts" paperback "action-adventure."

 The books followed a common format. Several quotations, including one from Mack Bolan, would open each book. (Typical is the quotation that begins this opinion.) A prologue would follow. Next, there would be numerous, relatively short chapters. Conflict and action occurred every few pages. After all of the bad guys had been administered their just deserts, an epilogue would close the story. The books usually ran a couple of hundred pages, had a simple plot line with no sub-plots, and were, in the words of the trade, a "quick read." Most covers portrayed Mack Bolan in a fighting posture, holding an exotic weapon.

 "The Executioner" series spawned numerous imitators. Apart from competing books, which were usually unsuccessful, the series may have inspired popular motion pictures such as Charles Bronson's "Death Wish," Clint Eastwood's "Dirty Harry," and Sylvester Stallone's "Rambo."

 By 1980, Pendleton had completed 38 books. He was also experiencing some medical problems and wished to give up the series, or at least to find someone else to do the heavy writing. Coincidentally, his editor-in-chief, Andrew Ettinger, had recently left Pinnacle to join Harlequin Enterprises Limited ("Harlequin"), a Canadian publisher, then known almost exclusively for its very successful sales of romance fiction. *fn2" Harlequin was interested in entering the men's action-adventure market. With Ettinger's intercession, Pendleton and his agent, the Scott Meredith Literary Agency, Inc. ("Meredith"), commenced discussions with Harlequin. In February 1980, they signed a preliminary letter agreement *fn3" pursuant to which Harlequin would acquire the right to use Mack Bolan and Pendleton's other characters in a continuation of the "Executioner" series. Spinoff series were also contemplated. Pendleton would not write the books himself. Instead, he would submit ideas, and Harlequin would contract with a stable of writers to produce the books in both "The Executioner" series and the spinoffs. In exchange, Pendleton was to receive royalties of 2 cents on each book sold, with a guaranteed minimum of $200,000 a year. *fn4" The rights to "The Executioner" series and its characters were Harlequin's for as long as it chose to publish the series.

 Harlequin and Jack Scovil ("Scovil") of the Scott Meredith Agency proceeded to negotiate a more formal agreement. The Agreement somewhat diminished Pendleton's obligations to develop story concepts, merely requiring him to serve as a consulting editor. In addition, certain non-compete provisions were added. Harlequin's attorneys prepared a paragraph 6 that prevented Pendleton from competing "directly or indirectly" with the sale of "The Executioner" series in numerous defined respects. *fn5" They also added a paragraph 7 entitling Harlequin to injunctive relief for any breaches of paragraph 6 without proof of actual damages. These non-compete provisions 'were not customary in a publishing contract, but this was not a typical author-publisher agreement.

 When Pendleton's agent saw paragraphs 6 and 7, he knew they were not acceptable to Pendleton, since, by their terms, they could arguably bar him from ever writing under his own name. Consequently, Scovil drafted an additional provision which became paragraph 8. It stated,

 Notwithstanding anything to the contrary in the provisions of Paragraphs 6 and 7 hereof, Pendleton reserves the right to create and/or write works for others, other than works which would compete with the sale of the action-adventure series contemplated in this Agreement, which Pendleton may publish or cause to be published in any language throughout the world, and all rights to which are solely the property of Pendleton.

 Plaintiff's Exhibit 1, P 8. A dispute as to the interpretation of this provision gave rise to this further adventure of Mack Bolan, and a trial.

 CHAPTER 1

 THE GOLD EAGLE SERIES

 The Pendleton contract was the launching vehicle for Harlequin's "Gold Eagle" series - the title under which it was to publish all of its men's adventure stories. Since Mack Bolan had fairly well destroyed the Mafia (at least in fiction), Harlequin broadened the scope of Bolan's adversaries to include, inter alia, terrorists ...


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