It’s only fitting (and possibly ironic) to discuss literary litigation on the birthday of Georges Duhamel.
Duhamel was the father and founder of the Abbaye de Créteil, a community and publishing house that aimed to establish a place to protect freedom of speech and press and practice the arts of writing and poetry.
Today, authors and the agents that sponsor them have a similar reason to unite in defense of literary liberty. This time, instead of in the southeast of Paris, they gather in front of the courtroom.
Why? The number of lawsuits surrounding high-profile book content is on the rise. Some, like Cato Institute senior fellow Walter Olson, believe the trend started with James Frey’s famed faux-memoir, A Million Little Pieces.
After a contentious lawsuit, Random House agreed to pay up to $2.35 million in the suit against the memoir. In the end, only 1,700 people asked to be reimbursed for their book purchases.
Although the publisher also paid opposing counsel’s legal fees, there was a more costly aspect to the lawsuit. The court case against A Million Little Pieces uncovered the truth about its author’s past and Random House’s pocketbook, but the precedent it set for targeting high-profile books is what caused the most damage.
Since then, a variety of court cases have been brought against similar best sellers.
For example, as of this month, there are currently two class-action suits against Penguin regarding its publishing of Three Cups of Tea. “The first, filed in May, accused the author Greg Mortenson and his charity of fraud and racketeering of book profits and donations,” reports the Wall Street Journal’s Law Blog.
And, although willingly dismissed in May, Simon & Schuster was initially sued for alleged misrepresentations on certain Israel-Palestine issues contained in Jimmy Carter’s 2006 memoir Palestine: Peace, Not Apartheid.
“What’s going on?” asks Alex Beam, Boston Globe columnist. “’This is part of the evolution of the class action lawsuit,’ explains Walter Olson, founder of the website Overlawyered.com. ‘For a long time the courts only listened if you could prove the defendant liable, and that everyone had suffered. Now there have been several waves of rulemaking that have liberalized the standards.’”
So while your client may be eager to express his views in ink, best express your legal opinion on the book’s marketing strategy first and foremost. Plaintiffs and the judges presiding over your literary lawsuit have, of late, become less lenient.
Meanwhile, the litigious debate about the breadth of First Amendment rights has yet to fade after all these decades.
In the words of Georges Duhamel, “It is always brave to say what everyone thinks.” These days, it’s even more brave (and, in some cases, costly) to write it in a memoir.