Adventurers Wanted Series Order

[Channing Rupnick]

In1968, 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:

"War Against the Mafia" and Mack Bolan were an immediate success. A series of 38 books written by Pendleton[1] "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 subplots, 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.[2] 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[3] 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 *1084 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.[4] 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.[5] They also added a paragraph 7 entitling Harlequin to injunctive relief for any breaches of paragraph 6 without proof of actual damages. These noncompete 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,

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 throughout the world. The theme shifted somewhat and was advertised under such slogans as

Pendleton's involvement with Harlequin gradually diminished. Initially, Pendleton was deeply involved in choosing Harlequin's writers and editing their manuscripts. He also wrote selected portions such as the prologues. However, in recent years, his involvement has been limited to assisting Harlequin in promotional matters including a Mack Bolan convention last year.

Although Pendleton did little of the writing, his name appeared on the cover in a manner suggesting that he was the author of the Mack Bolan books. By 1982, Pendleton had become unhappy with the latest Mack Bolan books. He advised Harlequin that since they were not following his advice, he wished them to cease using his name in this manner. (Harlequin had been advised by its counsel that this was a questionable practice.) In June 1982, Pendleton's attorney wrote Harlequin directing that it cease listing him as author or even co-author of future books. However, the parties then agreed that Pendleton would extensively rewrite the next three books and that his name could be used on those books. Thereafter, Pendleton indicated that his name should be removed from subsequent books. Harlequin countered that it had a right to use the phrase "Based on the characters created by Don Pendleton," on the cover, and Pendleton agreed to this. (He now states that he assumed that Harlequin would also list a fictitious author.[6]) Still later, Pendleton, at Harlequin's request, agreed to change the "Based on ..." to "Don Pendleton's Mack Bolan." Pendleton saw the subsequent monthly books listing no other author, and understood that the average reader would assume that he was the author.[7] However, he raised no further objections to this deception.

In late 1982, Harlequin began marketing two spinoff series, "Able Team" and "Phoenix Force," both of which have enjoyed moderate success.[8] The Gold Eagle series today, at least that portion comprised of the Mack Bolan books and its two spinoffs, while not wildly successful, nevertheless has a substantial number of hardcore readers (some of whom buy each issue directly from the publisher). Overall, the sales of the individual Mack Bolan books gradually declined. But considering that Harlequin was publishing many more titles each year, the overall sales numbers remained impressive. Total sales (12 million books in six years) are respectable and quite profitable. (The 92nd book in the Mack Bolan series has just come out.) Recent world developments involving international terrorism may help the series even further.

By 1985, Pendleton had had enough vegetating. His health had improved, and he was about to remarry. His creative urges had again come to life. He planned two new projects. In the first, a book entitled "Sagittarius Rising," he would draw upon his knowledge of the aerospace *1086 industry and rockets. His second project was a new series of books introducing a character named Ashton Ford. Pendleton dubbed Ford, a detective of sorts with some psychic powers, a "Mystic Eye." In his proposal to publishers, Pendleton offered "Ashes to Ashes" as the first in a new "mystery/mystical" series.

Pendleton's literary agent, Jack Scovil, of the Scott Meredith Agency, sought publishers for these new proposed works. Among the publishers whom they approached was Warner Books Incorporated ("Warner"), a subsidiary of a leading media-entertainment company.[9] Warner liked Ashton Ford's prospects and negotiated a six-book contract for an Ashton Ford series. The contract was signed on October 1, 1985.

Neither Scovil, Pendleton, nor anyone else had advised Warner, or any other prospective publishers, of the restrictions in Pendleton's contract with Harlequin. Warner knew that Pendleton had a contract with Harlequin, but Pendleton's agent had assured Warner that the proposed series did not violate that contract. In addition, the description of Ashton Ford, as "a brilliant young man who was never sure of what he wanted to do with his life and so became adept at everything from law to psychiatry to espionage and including powerful psychic gifts," Letter from Ted Chychak to Bernard Shir-Cliff (May 13, 1985), Plaintiff's Exhibit 61, clearly distinguished the new character from Mack Bolan.

Unaware of the non-compete provisions in Pendleton's Harlequin contract, Warner's promotional people launched a campaign intended to play upon the popularity of the Pendleton name and characters. Advertising blurbs to the trade proclaimed "Don Pendleton is back!" The front cover of each Ashton Ford book displayed Pendleton's name in letters over an inch high. Emblazoned within the name was the statement, "Creator of THE EXECUTIONER the 57,000,000 copy series." The book's front and back covers were obviously designed to exploit Pendleton's Mack Bolan action-adventure reputation.[10] The front cover of "Ashes to Ashes," a "big book treatment," is an expensive cutout (called a "gate fold") exposing a part of a full-page picture of a man (perhaps Ashton Ford) shooting a pistol, another man running with a gun, and an exploding helicopter. (The book makes no reference to a gun or an exploding helicopter.) The back cover emphasizes that Ashton Ford was a former naval officer and an adventurer whose knowledge of cryptology and philosophy is exceeded only by his capability with handguns. Neither Pendleton nor his agent was in any way involved in the promotion, which was, in fact, finalized without their approval.

3a8082e126