Magazines In Improbable, And Perhaps Irreproducible, Clash

Imagine it as F. Lee Bailey meets Albert Einstein, with David Letterman hovering in the background. The Annals of Improbable Research (AIR) and the Journal of Irreproducible Results (JIR), two of a handful of publications that take an intentionally humorous view of science and scientists, are moving slowly toward a date in court. George H. Scherr, publisher of JIR, is suing Marc Abrahams, editor of AIR, and Improbable Research Inc., AIR's parent company, for what Scherr claims is unfair competition, deceptive trade practices, and trademark infringement. The case has everything that addicts of Court TV have come to expect in big trials, and more: a claim for significant damages, originally to the tune of $4.2 million with a recent increase to $8.1 million; a charge of racketeering; a 1.5-inch-thick complaint document, including exhibits; an assertion of ownership of an event, the Ig Nobel Prizes, that has gained a stellar reputation in the world of less-than-serious science; a plaintiff who is representing himself; a prominent Boston law firm (Brown, Rudnick, Freed & Gesmer) defending; a legal defense fund set up by the defendant and his allies. Just as fascinating is the contrast between a voluble defendant who enthusiastically discusses the case in person and on his publication's Web site and a taciturn plaintiff who contends that legal disputes of this type should not be discussed outside the boundaries of the court. The dispute may seem to be grist for the mill of either magazine. Indeed, JIR's Web site (http://www.jir.com) features as an example of the publication's offerings a featured titled "Humor in the Court." But the participants aren't laughing. Since Aug. 1, 1997, when Scherr filed his complaint in the United States District Court for the Northern District of Illinois' Eastern Division, both sides have devoted significant amounts of time to the action. NO LAUGHING MATTER: The publisher of the Journal of Irreproducible Results is suing the editor of the Annals of Improbable Research, alleging unfair competition, deceptive trade practices, trademark infringement, and racketeering. The two men have approached the suit in markedly different ways. Scherr, a microbiologist and lawyer as well as publisher, has largely kept silent about his case. "I don't believe a lawsuit that's currently pending in the United States District Court should be dealt with in a public forum," he tells The Scientist. By contrast, Abrahams, a software designer before he became a humor writer and editor, has spoken garrulously about his defense with journalists and scientists. He has publicized his case in AIR and on its Web site (http://www.improb.com). And Abrahams has gone as far as setting up "The Strategic AIR Defense Fund," with Nobel laureates Dudley Herschbach, William Lipscomb, and Richard Roberts as honorary cochairmen. "It will probably cost a lost of money to get the case tossed out," he tells The Scientist. The case has failed to dim Abrahams's puckish side. The AIR Web site contains the full text of Scherr's complaint, minus the exhibits. And he has started up a new feature in mini-AIR, the E-mail version of AIR, titled "The Best of George." It contains examples of Scherr's claims that Abrahams finds insupportable. One example: According to Abrahams, Scherr complains that AIR copied the idea of a limerick contest from JIR, illustrating the claim with a 1996 page from JIR and a 1995 issue of mini-AIR. Abrahams, who received the package containing the complaint last August at his home office in Cambridge, Mass., takes delight in the racketeering charge, because the only defendant apart from Abrahams and Improbable Research Inc. is Wisdom Simulators Inc. Abrahams's no-longer-active software company. "Who have I conspired with? Myself?" asks Abrahams. The crux of the issue is the charge that similarities between AIR and JIR have led to incorrect impressions about JIR's nature and very existence. Scherr's legal document asserts that "[t]he designation AIR is confusingly similar to Plaintiff's registered trademark JIR." He also argues that Abrahams has "caused to be advertised that AIR is the successor to JIR, indicating that JIR is no longer published. "The Journal has never ceased publication, which is one of the points we take issue with," Scherr says. In response, Abrahams protests that the two terms are no more similar than, say, NBC and ABC. In addition, he points out that every issue of AIR contains a prominent disclaimer that AIR "is in no way associated with [JIR] or with its publisher." Scherr also charges "[d]efendants have and have caused to be erroneously, deliberately, and improperly asserted and advertised that 'AIR was created by the founders and entire former editorial staff (1955-1994) of the Journal of Irreproducible Results,'" and that almost everyone who was part of JIR's editorial staff between 1955 and 1994 indeed helped to found AIR. Quite true, says Abrahams. The staff "simply voted with their feet," as did most of the members of JIR's editorial board, who also moved to AIR when it was founded in 1994. JIR itself was created in 1955, by Israeli scientists Alexander Kohn and Harry Lipkin. According to Lipkin, on April 1, 1955, Kohn introduced Volume II of a fictional journal entitled the Journal of Irreproducible Results (Volume I never existed, although its "papers" were cited in Volume II). Responding to a favorable reaction, Kohn teamed with Lipkin to start a publicly available journal. The copyrighted term "irreproducible results" appears as the title of a session in the Proceedings of the 1957 Rehovot Conference on Nuclear Structure (H.J. Lipkin, ed., Amsterdam, North-Holland Publishing Co., 1957, page 391). After a few years, says Lipkin, he and Kohn found that noneditorial details of publishing the journal were taking up too much of their time. "Alex Kohn found Scherr to take it over," says Lipkin. "The agreement was that he would handle the publishing and distribution and we would handle the editorial." Agrees Scherr: "I've been publishing JIR for over 40 years. I was asked to assume the rights to JIR for various considerations." Things didn't quite work out as intended, charges Lipkin. "He started taking over and adding things to editorial and taking out our stuff," he says. "It gradually passed out of our control." Scherr remained as publisher of JIR until 1989, when he sold the publication to Blackwell Scientific Publications Inc., a British company that was seeking American properties. Once the sale had gone through, "there was a big dispute over the number of subscribers," says Brenda Twersky, who was then circulation manager for Blackwell's U.S. operations. "George said the circulation was 15-20,000, and it turned out to be 4-6,000." With Scherr temporarily out of the picture, Abrahams arrived in it. In the fall of 1991, after he had sent some humorous articles to the journal for possible publication (although he had never seen JIR), Blackwell asked him to edit JIR. For that, he received a small fee and retained copyright and other rights to any material that he created. Abrahams continued as editor of JIR for more than two years. During that period, he says, Scherr and Blackwell Scientific Publications had a series of legal disputes, and Scherr discussed regaining ownership of the journal and selling it to Abrahams. In 1994, Scherr took back control of JIR and is now its editor and publisher. By that time, though, Abrahams had resigned as editor of JIR and had broken off discussions with Scherr. Shortly afterward, he, Kohn, and several former members of JIR's editorial board founded AIR. Over the next few months and years, most of JIR's regular writers moved over to AIR. "Marc went out on his own when JIR was still part of Blackwell," says Twersky, now AIR's circulation manager. Originally "he took care of everything. I was asked about a year ago to take on the 'dirty work' of circulation." Abrahams took with him to AIR one item that has gained a delightful notoriety in the scientific world: the Ig Nobel prizes. Kohn, who died in 1994 shortly after helping to found AIR, first referred to "Ignobel" prizes in an article he wrote for JIR in 1968. Starting in 1991, Abrahams elevated the concept to a new level. It took the form of a fete at which Abrahams, as master of ceremonies, awarded prizes to scientists whose achievements "cannot or should not be reproduced." The 1997 winners, honored in a ceremony in October that was later broadcast on National Public Radio, include a team that measured individuals' brain wave patterns while they chewed different flavors of chewing gum; Mark Hostetler of the University of Florida, for his pioneering work on identifying insect splats on car windscreens; and the team responsible for discovering that elevator Muzak stimulated production of immunoglobin A and hence may help to prevent the common cold. In his suit, Scherr contends that "JIR instituted the Ig Nobel Prize as well as other promotional data and AIR mimics the promotional data of JIR in its advertisements . . ." That echoes a claim in a letter by Scherr to The Scientist (G.H. Scherr, The Scientist, Jan. 8, 1996, page 12) that neither Abrahams nor JIR was "ever associated with the Ig Nobel Prize." Abrahams and other participants in the ceremonies responded in subsequent issues of The Scientist (M. Abrahams, The Scientist, Jan. 22, 1996, page 12; R.J. Roberts, The Scientist, March 4, 1996, page 11; D. Herschbach, The Scientist, March 4, 1996, page 11). Not at issue in the lawsuit is The Best of the Annals of Improbable Research. This book is a collection of items from AIR edited by Abrahams and published last October by New York-based W.H. Freeman and Co. JIR cofounder Lipkin has no sympathy with Scherr's suit. "It's crazy," he says. "He has no right to do anything." However, the case is proceeding. "Right now, various motions are before the court," says Scherr. "We'll just have to wait and see what the judge does, and how he intends to proceed." On that, at least, Abrahams agrees. "We're waiting for the court to rule on my lawyer's motion to dismiss the case," he reports. Peter Gwynne, a freelance science writer based in Marsons Mills, Mass., can be reached online at PGwynne767@aol.com.

Magazines In Improbable, And Perhaps Irreproducible, Clash

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