Posts Tagged ‘publishers’

Script anachronism sinks idea-theft claim

Writers Ronnie Niederman and Judith Shangold sued Disney, claiming that in publishing “Summerland,” a novel by author Michael Chabon with a baseball theme, the entertainment giant’s Miramax Books subsidiary had ripped off one of their own 1995 idea submissions to Disney. Trouble is, the theatrical plot they claimed to have submitted in 1995 contained numerous references to the Palm Pilot personal organizer, a product not introduced until 1997. Citing “voluminous, independent and irrefutable evidence” that the plaintiffs did not create the treatment at the time they said they did, federal judge William H. Pauley concluded “that there was ‘clear and convincing’ evidence that the plaintiffs had committed a fraud on the court and ‘manipulated the judicial process.'” He dismissed their case and ordered them to pay Disney’s legal fees in an amount to be determined later. (Mark Hamblett, “Judge Blasts Bogus Proof, Rejects Claim Against Disney”, New York Law Journal, Jan. 18). Jonathan Edelstein comments at Head Heeb (Jan. 21).

A Million Little Plaintiffs

An acquaintance—whose self-accounts have appeared in several books, radio stories, prominent magazines and web publications—published a short story in a “non-fiction” anthology. I was familiar with the underlying events and asked her about it, since, even aside from unacknowledged name-changes, it plainly had invented and exaggerated elements, and a twisted chronology meant to fit a story arc. “Of course it does. It’s creative non-fiction,” she responded in exasperation, introducing me to a new definition of “non-fiction” that I hadn’t previously been aware of.

So the James Frey scandal (or a smaller one involving the Times’ Modern Love section) doesn’t surprise me in the slightest; I’ve just come to assume that anything published under the memoir label in the twenty-first century is the modern-day equivalent of a Philip Roth novel that isn’t well-written enough to be successfully marketed as fiction.

The question is what will a court do when confronted with the inevitable free-riding class action, claiming that the publisher has committed consumer fraud, and demanding the right for every book owner to get a full refund and punitive damages (and, of course, a taste for the attorneys who took the entrepreneurial risk of typing up a summary of The Smoking Gun story and filing it in court), before settling for 50-cent coupons, a donation of remaindered books to a “Books for Addicts” program, and a multi-million-dollar attorney fee. Will there be a ruling that “non-fiction” memoirs that aren’t require labelling? If so, what are the First Amendment implications for other non-fiction books? A ruling that doesn’t provide a clear swath of protection for publishers could essentially abolish memoirs or first-person reporting, because a ruling that establishes any sort of rule calling Frey’s book consumer fraud (or even just potentially actionable consumer fraud) could encourage other attempts to sue other successful memoir-publishers for less egregious exaggerations. (This problem earlier arose with the Beardstown Ladies (Nov. 16, 1999), and the California Court of Appeal was far from sympathetic to the First Amendment issues.)

Random House appears to be attempting to pre-empt litigation by offering refunds to anyone who asks, which will surely be a smaller percentage of customers than a hired plaintiffs’ damages expert would testify to.

Prawfsblawg asks about Frey’s liability to the publisher, which seems to miss the point: what’s the publisher’s theory of damages? “You sold us a book that made us a lot of money”?

Also of interest to Overlawyered readers is the bullying letter sent by Frey’s lawyer to The Smoking Gun to try to keep them from publishing their findings. We may have our own story of bullying letters to tell shortly.

(And welcome Wall Street Journal and Malkin readers; do check out our main page and sister site.)

How lawyers almost killed “The Onion”

Continuing juvenile humor litigation day at Overlawyered: “We were very nearly sued out of existence by Janet Jackson,” said former Onion editor-in-chief Robert Siegel, thanks to a story headlined “Dying 13-Year-Old Gets His Wish, Will Pork Janet Jackson.” (Samara Kalk Derby, “Jackson almost killed Onion, editor reveals”, The Capital Times, Apr. 12) (via Romenesko).

No way to spend your old age

Quotable: “Being involved in a lawsuit is a lousy way to spend your old age” — author Dominick Dunne, 79, commenting on his agreement to settle, on terms which include an apology and an undisclosed sum of money, a defamation suit filed by former Rep. Gary Condit. (Michael Doyle, “Condit, Dunne sidestep big battle”, Modesto (Calif.) Bee, Mar. 17).

Nastygram in Luskin’s inbox

Economics columnist and blogger Don Luskin, subject to criticism in this space and many others in 2003 when he threatened legal action against another blogger, is now himself being threatened with legal action by Worth Publishers, a company that publishes a textbook by frequent Luskin target Paul Krugman. Worth is alleging defamation and copyright violations arising from one of Luskin’s blog posts last December. Just One Minute has the details (Mar. 8).

“I Am Not A Jackass”

A.J. Jacobs considers–and rejects–the idea of suing Joe Queenan over a bad book review.

But then I remembered what I had learned in the encyclopedia: James McNeill Whistler tried this tactic, and it ended pretty badly. He filed a libel suit in 1878 after the critic John Ruskin called him a ”coxcomb” and denounced his painting ”Nocturne in Black and Gold: The Falling Rocket.” Whistler won a token judgment of a farthing — but the cost of the case bankrupted him. So no lawsuits from me. And at least I wasn’t called a coxcomb.

(NY Times, Feb. 13) (via Radosh).

“One-Question Interview: Tom Perrotta”

From this August:

Yankee Pot Roast: Which do you prefer (to munch on, not to adorn book covers): Pepperidge Farm Goldfish or chocolate-chip cookies?

Tom Perrotta: I prefer chocolate chip cookies. They don’t have as many lawyers.

Background detail: Malcolm Jones, “Fiction: New Snack Attack”, Newsweek, May 24; before-and-after book covers; Perrotta’s Little Children.

“Sharper Image Loses Suit Over Panned Product”

U.S. District Judge Maxine Chesney cited California’s SLAPP law, aimed at curbing lawsuits over some exercises of speech, “on Wednesday when she tossed out a suit filed by the upscale retailer [Sharper Image] against Consumers Union over negative reviews of its best-selling product, the Ionic Breeze Quadra Air Purifier.” (Jeff Chorney, The Recorder, Nov. 11).