BY:
Neil J. Rosini, Michael I. Rudell(Originally published in the Entertainment Law column of the New York Law Journal (in slightly modified form), April 25, 2008)
“A memoir is how one remembers one’s own life, while an autobiography is history, requiring research, dates, facts double-checked,” observed Gore Vidal with regard to his own memoir, Palimpsest. In light of this distinction, isn’t the reader of Vidal’s memoir — or any other memoir — forewarned that the author is not testifying under oath?
Controversies over fabricated memoirs and memoirists have been blooming like spring flowers. The works in question were not recollections of public events by celebrities and statespersons – a substantial category of the genre. Instead, they told previously private stories, often beginning with confessions of bad habits and hard knocks and ending inspiringly with spiritual or financial redemption. But the emotional high experienced by some readers of these supposedly authentic stories soured into feelings of anger and resentment – followed by scandal and legal problems — when what was promoted as truth turned out to be fiction.
The controversies have raised a number of questions not only for memoirists, but also for publishers and lawyers. Just what level of accuracy are publishers and readers entitled to expect from memoirs? To what extent should memoirs be fact-checked? Is the standard of truth for memoirs different in practice from that of autobiographies and other non-fiction works? In addition to creative implications, the answers to these questions affect how contracts are written and when they will be considered breached.
Recent Memoir Controversies
One of the more notorious putative memoirists of recent times was James Frey, whose book A Million Little Pieces tells an inspiring story of his recovery from addiction to drugs and alcohol. Millions bought the book since its publication in 2003. In 2005 alone, more copies were reportedly sold in the U.S. — 1.77 million — than any other title with the sole exception of J.K. Rowling’sHarry Potter installment.
Most of Frey’s sales followed Oprah Winfrey’s selection of the title for her book club, and it proved to be one of the most popular of that series. In her October, 2005 program featuring Frey, she praised the book as a revelation: “like nothing you’ve ever read before.” Employees of her production company professed their feelings for the book onscreen in such emotional terms that Oprah, too, was reduced to tears. Frey declared on the show — as he also said repeatedly in press interviews and bookstore appearances — that his book was true, honest and accurate.
But several months after the Oprah high-point, significant parts of the book were shown to be false, including, for example, details of the author’s purported criminal career. The Smoking Gun found the author’s claim that he was in jail “a bunch of times” — including a three month incarceration in which he read Don Quixote, War and Peace, and The Brothers Karamazov — to be a complete fabrication. Frey also claimed to be involved in events leading up to the collision of a car and a train that killed two female high school students. The mother of one of the actual victims said that Frey had nothing to do with it.1
After the revelations of falsity, Frey appeared on Ms. Winfrey’s show in January 2006 and apologized. Oprah famously scolded him in harsh terms, telling her audience she had been duped and betrayed.
Others were less offended. Frey’s publisher, Nan Talese, noted that Frey had described himself in the book as a liar, a cheater and an addict, and accordingly, she did not confuse his memoir with the New Testament.2 Joyce Carol Oates commented, “The tradition of personal memoir was always been highly ‘fictionalized’ — colored with an individual’s own ’emotional truth’… It would seem that Oprah Winfrey was judging the memory [sic] from a more literal perspective, but this makes sense because the great majority of her readers would expect memoirs and autobiographies to be ‘true’.”3
The question of what makes a book like Frey’s sell so well also attracted scrutiny. Frey’s original manuscript was offered to publishers as a work of fiction, but after 17 rejections by other publishers, Doubleday agreed to take the book if Frey converted it to a memoir, presumably by eliminating the fiction.4 The Smoking Gun remarked that “Frey appears to have fictionalized his past to propel and sweeten the book’s already melodramatic narrative and help convince readers of his malevolence.”5 Meghan O’Rourke commented in Slate that an inspirational work of “confessional revelation” is more attractive to both publishers and readers than fiction — and more lucrative.6
Beginning in January, 2006, the same month as Oprah’s program, Frey and his publisher were sued in at least ten different actions in five U.S. District Courts. They were consolidated into a single class action in the Southern District of New York,7 which sought damages for fraud based on the false description of the book as a truthful memoir. Doubleday, a division of Random House, left the memoir on bookstore shelves but announced its intention to include a new publisher’s note and author’s note in new editions not long after the lawsuits began, having “sadly come to the realization that a number of facts have been altered and incidents embellished.”8 Months later, Random House settled the lawsuit — while denying wrongdoing and liability — by agreeing to pay up to $2.35 million in refunds to readers who thought they were “misled” by the marketing of the book. (This was considerably less than the $50 million originally announced as the damages target by one of the plaintiffs’ counsel.)9
The most recent unmasking of a high-profile pseudo-memoirist happened last month when the author of Love and Consequencesadmitted that the personal story it told was entirely fabricated. The author, Margaret Seltzer, writing under the pseudonym Margaret B. Jones, turned out not to be the drug-running half-white, half-Native American victim of child abuse, who gave voice to the story. Nor had the author actually been consigned to foster homes for three years before finding herself immersed in gangs, violence and drugs in South-Central Los Angeles. Instead, Ms. Seltzer was fully Caucasian and grew up in a well-to-do section of Los Angeles with her biological family. She neither lived with a foster family nor ran drugs for gang members. She said she wrote the book at a Starbucks in South-Central Los Angeles where she drew characters and incidents from “Black Panthers and kids who were gang members,” among others.
Before her story unraveled, Ms. Seltzer was profiled in the House & Home section of the New York Times. Michiko Kakutani, in a review for the Times, praised the memoir as “humane and deeply affecting,” and many others also found it so without knowing it wasn’t true. Geoffrey Kloske, publisher of Riverhead Books, said that there was nothing that he or the book’s editor could have done to prevent the author from lying and also noted that Ms. Seltzer had signed a contract in which she promised to tell the truth. Riverhead Books recalled approximately 19,000 copies of the book and offered refunds to book buyers.10
Nan Talese, who had published Frey’s book, said, “I don’t think there is any way you can fact-check every single book. It would be very insulting and divisive in the author-editor relationship.”11 Others expressed a contrary view, but Chris Lehmann, a critic writing in The Nation, dismissed the fact-checking question as “tail-chasing.” He preferred to focus once again on “what makes fictions such as Love and Consequences so compelling to publishing professionals in the first place.” He described the “memoirist sweet spot” as “a wrenching narrative of personal triumph over adversity, pitting a tough but sensitive ingénue against the lurid doings of a cool, dangerous world.” Lehmann called the “twin poles of extremity in suffering and the quiet grace of self-deliverance” the “lodestars of the memoir industry, regardless of the truth value of any particular entrant.”12
Ms. Seltzer’s former teacher of Native American literature came to her defense. He regarded the book, even if fictional, as a “powerful story of a young girl coming of age” with “much better dialogue than most first novels.” He also observed that since the early days of American literature, “the boundaries between novel and autobiography have been indistinct, and readers have eagerly confounded them.” Summing up, he said, “Every memoir or autobiography is an individual’s fashioning of his or her life, directed toward that individual’s conception of audience. The more intimate or psychological the events recounted… the more ludicrous it is for readers to insist upon documentary truth.”13
Rounding out the list of controversies in between Frey and Seltzer were the “anguished memoirs” of Nasdijj, who was reported to be a middle-aged white man posing as a Navajo; and the bestselling memoir A Long Way Gone, by Ishmael Beah who was accused by Australian journalists of distorting his experience as a child soldier in Sierra Leone’s civil war in the 1990s, which the author and his publishers denied. As the Village Voice recently put it, “the entire memoir genre is under conspicuous assault.”
Reasonable Expectations
Against this backdrop, it is worth exploring what publishers now expect from their authors in the warranty and indemnity clauses of publishing agreements and how they are suited to memoirs.
Warranty forms often exact from authors of non-fiction, one of two promises in the alternative: a promise of complete truth (which is a difficult undertaking for any non-fiction writer and especially for memoirists in light of the “as I remember it” character of their work); or a promise that “statements asserted as facts are based on Author’s careful investigation and research for accuracy.” The latter is a better (albeit not optimal) fit for a memoir than a warranty of infallibility (as it is for most other non-fiction) and should deter the author from knowingly submitting a fable. And it also advances the publisher’s twin goals of providing readers with dependable journalism and of avoiding liability for defamation, not to mention class action lawsuits. But even though the second alternative does not unqualifiedly promise accuracy and seems appropriate enough to an autobiography, it still is not consistent with the concept of a memoir. “Careful investigation and research for accuracy” goes well beyond the mere exercise of remembering — even earnest remembering – and the stuff of memoirs, such as details from childhood, may not lend itself to investigation and research. A more limited warranty that promises no intentional falsehoods would be best suited to the memoir genre.
The warranty clause of a publishing agreement is linked to the indemnity clause. There, the author promises to indemnify the publisher against all damages, claims, costs, attorney fees and the like arising from a breach of any of the author’s warranties, and in some cases, even from an “alleged breach” (which authors’ representatives vigorously oppose in negotiations). The indemnity obligation may deter a memoirist from including every hazy and defamatory recollection that comes to mind, which is not necessarily an undesirable result. But in the extreme case, concern about legal consequences that may arise from “truth” as the author recalls it, could cut so much meat from a memoir that the bones aren’t worth publishing. Perhaps a prudent compromise is for author and publisher to weigh the benefits and risks of potentially defamatory statements and corroborate salient facts that lend themselves to checking. For the publisher, this exercise is also a hedge against wholesale fabrication. For the earnest memoirist, it should provide some comfort even if legal “vetting” is unlikely to earn a reprieve from indemnity obligations.14
To meet the reasonable expectations of purchasers of memoirs, especially in the current climate of skepticism, both author and publisher should give precise information in advertising and promotion about the level of accuracy in the book. Author Dave Eggers recently set high the honesty bar in a well-labeled quasi-memoir entitled What is the What; The Autobiography of Valentin Achak Deng, A Novel, based on the life of a real witness to Sudan’s civil war who spent 13 years in refugee camps. The story was “subjectively told” by with “many” fictional passages, according to the preface of the book in which the real-life protagonist also declared, “though it is fictionalized, it should be noted that the world I have known is not so different from the one depicted within these pages.” This seems to reduce to zero the legal and moral exposure of the author and publisher.
Conclusion
As Gore Vidal, Joyce Carol Oates, and Ms. Seltzer’s former literature teacher all observed, memoirs by definition are supposed to be only as accurate as the memory that recalls them. But they are not supposed to be works of fiction. In the wake of the Frey scandal, Doubleday offered a simple rule of thumb: a memoir “should adhere to the facts as the author knows them.”
1 “The Man Who Conned Oprah,” The Smoking Gun, January 8, 2006:
http://www.thesmokinggun.com/archive/0104061jamesfrey1.html
2 Hylton, Hilary, Time, July 30, 2007:
http://www.time.com/time/arts/article/0,8599,1648140,00.html
3 Id.
4 The Smoking Gun, supra, citing a February, 2003 story in the New York Observer by Joe Hagan.
5 Id.
6 O’Rourke, Meghan, Slate, posted January 12, 2006:
http://www.slate.com/id/2134214/
7 In re “A Million Little Pieces” Litigation, 435 F. Supp.2d 1336 (Jud. Pan. Mult. Lit., 2006).
8 http://www.amazon.com/Million-Little-Pieces-James-Frey/dp/0307276902
9 Lattman, Peter, “A Million Little Refunds,” The Wall Street Journal, Law Blog, posted May 21, 2007:
http://blogs.wsj.com/law/2007/05/21/
10 Rich, Motoko, “Tracking the Fallout of (Another) Literary Fraud,” nytimes.com, March 5, 2008:
11 Id.
12 Lehmann, Chris, “Victim ‘Hood,” The Nation, March 25, 2008:
http://www.thenation.com/doc/20080407/lehmann
13 Sayre, Gordon, “Fine Line Separates Memoir, Novel,” The Register-Guard, March 9, 2008:
http://www.registerguard.com/csp/cms/sites/dt.cms.support.viewStory.cls?cid=75372&sid=5&fid=1
14 Obtaining publishing liability insurance – even with the author added as an insured – is not a complete answer for a number of reasons, which require more space to discuss than this column allows.