Monday, September 12, 2011

"Any Damn Fool Can Be Accurate -- and Dull": Can I Be Liable to My Readers for Lying About Myself?

In 1929, actress Joan Lowell published a memoir of her childhood entitled The Cradle of the Deep. According to The Los Angeles Times, Lowell reported how her sea-captain father had raised her on a trading ship, the Minnie A. Caine, until she was 17.  She learned her first swear words at age two, witnessed a man being eaten alive by a shark at age 16, personally harpooned a whale, and occasionally played strip poker with the all-male crew.  When the ship caught fire off Australia, Lowell managed to swim three miles to safety with a kitten clinging to her back. Cradle of the Deep was a Book-of-the- Month Club selection, sold more than 100,000 copies, and was slated to be adapted into a talking movie produced by D.W. Griffith.  But then Lowell's childhood neighbors spoiled the fun and revealed to the press that her story was almost entirely bilge water.  Although Lowell's father was, in fact, a sea captain, Lowell herself had spent only a few months at sea and had lived most of her youth high-and-dry in Berkeley, California. When reporters questioned her about the factual "inconsistencies," Lowell explained that a writer's first duty is to tell a good story. "Any damn fool can be accurate -- and dull," she said. The Book-of-the-Month Club offered refunds to book buyers, but took no legal action against Lowell. There's more about Lowell and a great picture here.

If Joan Lowell had published her "memoir" today, she would have run a high risk of being sued by class action lawyers purporting to represent readers duped by her deception. Make no mistake, if you lie about yourself in your memoirs, you are courting legal liability to your publisher, as well as public disgrace if you are discovered.  But how likely are faux memoirists to be found liable to their readers?  And should the courts entertain duped readers' claims at all?  Here are some thoughts:

1.  There is a long and colorful history of writers telling bald-faced lies about themselves in memoirs and autobiographies.  An amusing Wikipedia article describes 32 instances of "fake memoirs" in which "a wholly or partially fabricated autobiography, memoir, or journal of an individual is presented as fact."  And a few years ago The New York Times published an article headlined "A Family Tree of Literary Fakers," profiling, among others, Margaret Seltzer, author under the pseudonym Margaret Jones of a largely fabricated gang memoir, Love and ConsequencesJ.T. LeRoy, who wrote two "memoirs" before New York Magazine revealed that LeRoy's life was an elaborate hoax perpetrated by Laura Albert; and Binjamin Wilkomirski who wrote Fragments, a memoir of his boyhood in a concentration camp -- a story marred in the minds of some readers by the fact that the author was later revealed to have "spent the war in relative comfort in Switzerland."  But my favorite memoir controversy revolves around Lillian Hellman's Pentimento, a book that I read with pleasure years ago and which is filled with literary gossip and vinegary anecdotes.  Yet to this day, it has never been clear whether Hellman really smuggled $50,000 in a fur hat to help the anti-Nazi resistance (a story from Pentimento that was made into the movie Julia) or merely inserted herself into the life story of Muriel Gardiner Buttinger -- a possibility discussed in this fascinating post.  To my knowledge, no reader ever sued Hellman, although her veracity was very much at issue in the long-running libel case she brought against the novelist Mary McCarthy.

2.  Of course, anyone can sue anybody for just about anything under our legal system, but, while there are doubtless factual distortions in many memoirs and autobiographies, lawsuits by readers against authors for alleged false accounts of their own lives are rare.  (Only two prior to 2011-- according to this Boston Globe blog post.) Of course,when you make false (and defamatory) statements about others, you are cruising for a libel lawsuit (as discussed in these past RightsofWriters posts), but only a very few lawsuits on behalf of readers against memoirists or autobiographers for lying about themselves have been "successful" (by some definition of success) for the plaintiff readers -- or even for their lawyers.  Two reasons: (a) it is difficult to articulate how a false memoir materially "damages" a reader; and (b) ordinarily no one reader has a financial stake exceeding the cost of the book and therefore has no incentive to sue.  Indeed, I do not know of a single false memoirs case, brought on behalf of readers, that has resulted in a judgment on the merits.  (If you know of one, please email me.)  The cases I've read about have all been settled (like most civil lawsuits) or eventually withdrawn.  So it remains to be seen whether a case of this kind is ultimately winnable on the law.

3.  Because an individual reader doesn't have a sufficient economic incentive to file a lawsuit, the legal threat to the faux memoirist generally takes the form of a class action lawsuit -- i.e., lawyers who are seeking to represent the interests of an entire class of readers who, like a few specifically named plaintiffs, were duped into buying a work that was fictionalized in some respects when they believed, at the time of purchase, that it was true.  As reported in this Wall Street Journal article, there has been a proliferation of putative class actions against authors this year: i.e., a total of three lawsuits -- two of which involved the same book.  (I use the term "putative" because a case is not a full-fledged class action unless and until a judge "certifies" the class.)

4.  From the lawyers' point of view, the most successful "duped readers" lawsuit arose from James Frey's memoir of alcohol and drug addiction, A Million Little Pieces.  Frey famously admitted to Oprah that he had greatly exaggerated details of his personal experience, claiming, for example, to have been jailed for 87 days, when, in fact, he had been detained by police for only a few hours.  Thirteen class action lawsuits were filed against Frey and his publisher, Random House; the cases were eventually consolidated and settled in 2007 with the payment of $738,000 in attorneys' fees, and the promise of a refund of the book price to any reader who claimed one.  But how much do readers really care about false memoir kerfuffles?  As reported by only 1,729 readers bothered to submit a refund claim, despite the fact that Random House spent $432,000 advertising and administering the settlement.  Frey's book sold over 5,000,000 copies, so 1,729 claims represents a little more than 3/100ths of 1 percent of total readers.  Not exactly a grassroots readers' revolt.  For an argument that Frey's and Random House's conduct should not have resulted in any legal liability (because Frey's book served its intended purpose -- providing enjoyable reading), see "A Million Little Maybes," by Samantha Katze.

5. Earlier this year, author Jon Krakauer and 60 Minutes challenged the truthfulness of key anecdotes in the book Three Cups of Tea by Greg Mortenson.  Although Mortenson has publicly defended the book as a compressed version of actual events, two would-be class action lawsuits were filed against him.  Here is the complaint in an Illinois action in which a plaintiff-reader alleged violations of a consumer deception statute, breach of contract, and unjust enrichment.  The Illinois case was later withdrawn and the claim consolidated with another lawsuit in Montana (complaint here) which made certain additional claims that Mortenson's alleged falsehoods duped some people into making contributions to a charity Mortenson helped to promote.  Mortenseon recently moved to dismiss the complaint (AP's description here), and there may soon be more news about the case.

6.  Also this year, a would-be class action was filed against former President Jimmy Carter in connection with his memoir/history/polemic Palestine: Peace Not Apartheit.  The legal claims resembled those in the Frey lawsuit: breach of contract, unjust enrichment, and violation of a consumer fraud statute, with the addition of common law claims for fraud and negligent misrepresentation.  Copy of the complaint here.  Most of the statements about which the plaintiffs complained concern alleged misdescriptions of events in the Middle East, not of Carter's own life, and, as such, raise a set of concerns that are different from Frey's book, including the constitutional protections for political opinion.   Mere factual mistakes seldom form the basis for successful claims against writers or publishers, as discussed in a prior post: "Can I Be Liable for Publishing Mistaken Information?"  Plaintiffs sought to overcome this obstacle by alleging that President Carter had intentionally misstated the facts.  Last I heard, however, plaintiffs had voluntarily dismissed the complaint.  

7.  Lawyer and writer Helen Gunnarson (who tweets as @HelenGunnar) inspired this meditation on faux memoirs, contacting me a few weeks ago about an article she was writing on the Mortenson case.  As I told Helen, and as you have probably inferred, I am skeptical about the wisdom of imposing legal liability on writers for lying to their readers.  Don't get me wrong.  I don't think memoirists should just make things up, without at least clearly disclosing their modi operandi to their readers.  However, I believe fabrication is primarily an ethical issue, not one for the courts.  I largely share the views expressed in this Los Angeles Times post that lawsuits against memoirists are "silly."

8.  Helen told me an anecdote about memoirist Mary Karr deciding not to write about an event that she vividly recalled because friends convinced her it could not have happened the way she remembered it.  As Karr has flatly said, “I try not to write anything not true.” That worthy sentiment strikes me as the ethical pole star of memoir writing, but as memoirist William Loizeaux observes in this article, "remembering is always a tricky business."  Loizeaux insists that "The line that should be most closely tended is the line of trust between writer and reader."  The farther that the memoirist departs from factual certainty, the greater the ethical duty on the memoirist to signal clearly to his readers that they are entering the realm of speculation or invention.  Loizeaux again:
when a memoirist writes, "we must have wept, being a family of inveterate weepers," we understand that a lachrymose scene to follow is informed imagination. These words are from Mary Karr's Liars' Club, which attempts to establish trust by letting the reader know how much truth is being told.
9.  Good intentions aside, I assume that virtually all memoirs and autobiographies are littered with falsehoods.  Most inaccuracies are probably inadvertent, arising from the fallibilities of human perception and memory.  But some varieties of falsehood are, I suggest, inherent in the modern craft of memoir.  As a lawyer, I am repeatedly struck by the inability of witnesses, who are sworn to tell the truth and who believe they are telling the truth, to accurately repeat conversations that occurred only a few months before their testimony.  As a result, I have no faith whatsoever that any dialogue recorded in a memoir is “true” in any literal sense.  Similarly, in light of the repeatedly demonstrated fallibility of eyewitness testimony, there is little reason to believe that the proliferation of physical details that give memoir its verisimilitude are genuine.  The dialogue and details in a memoir are, at best, psychological truths.  As one blogger explains, there are at least three conflicting varieties of truth competing for the allegiance of the memoirist ("the facts as they are, the facts as I see them, and the facts as I feel them"); he goes on to suggest that James Frey, Greg Mortensen, and David Oliver Relin (Mortenson's co-author) were only trying "to get us to feel their emotional truths a little too much.” Well maybe.  I am more inclined to agree with Brian Hale, a professor at Ohio State University, who told The Christian Scientist Monitor:  "The memoir is a strange kind of performance.  It's halfway between fiction and testimony . . . Anybody in his right mind knows that a memoir is unreliable." Yes, there is a difference between reporting mistaken memories about our lives and willfully lying about our lives, but do we really want legal liability to readers to turn on that difference?  Should Joan Lowell have been liable to her readers for her tall tales?  I don't think so. 

10.  Again, this is not to say that lying in memoirs is -- or should be -- free of legal consequences. For example, if you lie in your memoirs, you are likely in breach of a warranty in your publishing agreement.  The standard Simon & Schuster contract contains a promise that "if the [author's work] is not a work of fiction, all statements in the [author's work] asserted as facts are true or based upon reasonable research for accuracy." A breach of that warranty may not give the publisher a direct claim against its author for lying, but it does give the publisher the right to have the author indemnify the publisher for all losses it sustains as a result of claims against it arising from the authors' lies.  If an author breaches her promise to tell the truth, and the publisher is damaged as a result (e.g., is sued and/or obliged to provide refunds), the warranty may oblige the author to cover the publisher’s liability and attorneys’ fees.  I do not know whether Random House sought repayment from James Frey in connection with the class action settlement payments or the cost of the defending the thirteen lawsuits, but a lying memoirist is certainly playing with fire.  Just ask J.T. LeRoy a/k/a Laura Albert, who was ordered to pay $116,000 in damages and $350,000 in attorneys' fees for allegedly defrauding a film production company by selling the screen rights to LeRoy's autobiography that turned out to be fiction.

11.  Finally, you might want to take a look at the work of Ben Yagoda (author of Memoir: A History) and Dan DeLorenzo. They have have devised this amusing rating system for the "truthiness" (to adopt Stephen Colbert's great coined term) of memoirs.  Saint Augustine comes out with high ratings, Margaret Jones/Seltzer, not so high.