166 UALR LAW REVIEW [Vol. 35
credit for authoring works.
6
Publishers use ghostwriting to reap the financial
benefit of marketing a book by a well-known name, even though that person
has no talent for writing.
7
When a ghostwriter remains anonymous and a publisher markets a
book as written by a well-established name, consumers receive the message
that the ideas and creative products in that book sprang from the mind of the
purported author. Publishers and authors make this type of deception their
goal.
8
Despite the transparently deceptive nature of the practice, it persists
unimpeded by consumer protection laws. The continued practice of ghost-
writing allows false representation of expertise and literary skill, and exploi-
tation of the general public’s interest in the lives and thoughts of celebrities.
The United States Supreme Court’s decision in Dastar Corporation v.
Twentieth Century Fox Film Corporation
9
provides some protection to the
practice of ghostwriting. In Dastar, the Court declared that section 43(a) of
the Lanham Act, which prohibits “false designations of origin,”
10
does not
apply to the ideas contained within a work, but only to the physical object
itself.
11
This decision effectively foreclosed the possibility of enforcing
truthful marketing of written works based on claims of false designation of
origin.
12
6. Kelly James-Enger, How to Be a Successful Ghostwriter, WRITERS DIGEST (June 7,
2011), http://www.writersdigest.com/writing-articles/by-writing-goal/get-published-sell-my-
work/how-to-be-a-ghostwriter.
7. Andriani, supra note 5.
8. See, e.g., Estate of Andrews v. United States, 850 F. Supp. 1279 (E.D. Va. 1994).
Eugene Andrews, an executor of V.C. Andrews’s estate, said as much in a letter to V.C.
Andrews’s literary agent, which read, in part, “When my sister died, and Andy Niederman
[ghostwriter for Andrews after her death] stepped into our life, we both had something to
offer. He, with his wonderful talent, and we, with a name that he could write under, has made
Andy a wealthy man.” Id. at 1285 (emphasis omitted). The other executor of Andrews’s
estate noted that royalty payments had decreased by 35% after “publicity disclosing that the
books are ghost-written.” Id. (emphasis omitted). His letter went on to state, “This suggests to
me that people bought the earlier books you wrote because they thought Virginia wrote them
. . . It also suggests something about relative contributions to success.” Id. (emphasis omit-
ted). One court found the deceptive nature of ghostwriting so apparent that it refused to en-
force a ghostwriting contract as against public policy. Roddy-Eden v. Berle, 108 N.Y.S.2d
597 (N.Y. Sup. Ct. 1951). When Milton Berle desired to enter the literary field and garner
recognition for having written a serious novel, he hired Anita Roddy-Eden to write the novel.
After Roddy-Eden completed work on the novel, Berle decided not to publish it, which led
Roddy-Eden to sue Berle for breach of contract. In dismissing Roddy-Eden’s claim, the court
emphasized that “agreements which tend to or have for their purpose to defraud the public
generally, even though they may not amount to a criminal conspiracy, are illegal and void.”
Id. at 599.
9. 539 U.S. 23 (2003).
10. 15 U.S.C. § 1125(a) (2006).
11. 539 U.S. at 37.
12. Greg Lastowka, The Trademark Function of Authorship, 85 B.U. L. REV. 1171, 1210
(2005).