A Million Little Plaintiffs

by Ted Frank on January 12, 2006

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.)

{ 22 comments }

1 Michelle Malkin 01.12.06 at 10:09 am

A MILLION LITTLE PLAINTIFFS

Ted Frank at Overlawyered has an interesting take on the Oprah/James Frey debacle: 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…

2 Peter Eipers 01.12.06 at 10:42 am

I wonder, given your anecdote about “creative” non-fiction, what we are to think of some other examples. For instance, Shelby Foote’s award-winning three volume history of the Civil War has rightly garnered much praise, and also served as framework for Ken Burn’s documentary film. Foote’s work has been called a “narrative” history, and is no doubt historically accurate in most respects. However, what are we to make of some of the quotes attributed to characters throughout the book? Surely not each one was diligently transcribed, but rather was Foote’s own invention. Were he alive today, would Shelby Foote be liable?

3 David Perez 01.12.06 at 11:25 am

In his interview with Larry King, Frey offered that, by definition, the memoir genre, whose rules and boundaries as a new genre have yet to be outlined, and therefore lends itself to the embellishments of the author.

In fact, he admits that the book was originally shopped to different publishing houses as a novel and that the decision was ultimately made by Random House to distribute it as a memoir.

This is where the debate begins and where it should end. James Frey is not a liar, he’s an author who got a very nice check for writing a good book and his publishers decided to label it X while some people (perhaps without book deals of their own) would prefer to call it Y.

4 La Shawn Barber's Corner 01.12.06 at 1:08 pm

James Frey, JT LeRoy, and Me

I don’t have to time to blog it now, but I have a BIG post planned about this. (More stories)
I intent to make a serious confession, and I hope that you, my friends of over two years, will understand. Watch this space for updates.
Fakery blog…

5 Bill 01.12.06 at 1:08 pm

I’m not excusing Frey, but FYI “creative non-fiction” has been around for a while. Most in the publishing world know what it means. On Larry King, Frey tried to explain by placed his own work alongside the work of Hemingway, Keroac and Buchowski (dream on, James) when really Hunter Thompson is probably more like Frey’s model. Does anybody think everything in “Fear and Loathing in Las Vegas” is literally true? That’s what he was TRYING to say.
The difference, of course, is that Thompson never tried to set himself up as a role model and a viable alternate path for those battling substance abuse demons.

6 Deoxy 01.12.06 at 4:25 pm

The difference is that Frey has CLAIMED that it is true – numerous times.

When put on the spot, he will admit he embellished a bit, but he still sticks by all the major details (charges, etc), many of which are ridiculous on their face and which The Smoking Gun has found to be patently untrue.

I still hope there isn’t a class action lawsuit as described, but some remedy against the shyster wouldbe nice.

7 Ted 01.12.06 at 4:37 pm

some remedy against the shyster wouldbe nice.

Meh. Who has Frey hurt? The people he said bad things about are either unidentifiable, dead, fictional–or himself. Most people who read the book did so because Oprah or a friend liked it.

The appropriate remedy is social ostracism to the extent you find Frey’s behavior problematic. Cf. S.Glass and J.Blair. Not everything needs to be resolved through the legal system. I’m still waiting to hear the proposed legal rule that would punish Frey without chilling legitimate memoirists.

8 Jon Fischer 01.12.06 at 5:48 pm

I have a question about copyright law related to Frey’s case. I noticed that the letter from his lawyers specifically says at the top of page one that publication or dissemination is prohibited. Likewise, in the last sentence, Frey’s lawyer asserts that publication would be “…a violation of the Copyright Act.” I know that in general, the intellectual property content of a letter belongs to its sender, even though the recipient may possess the actual sheet of paper. Is there some legal theory by which The Smoking Gun is indemnified, or are they taking a big risk tangling with Lavely & Singer? Also, given that a letter like this was never intended to be sold for profit, how would damages be assessed in the event that TSG were held liable?

9 tcaptain 01.13.06 at 9:51 am

For the poster above who asked “who has Frey hurt?”:

Frey has repeatedly marketted the book as a true and accurate portrayal of his life and holds himself as a rolemodel for recovery. This is a false representation.

The fact that the book is a pathetic exageration, an exercise in shameless self aggrandizement does much to insult the many people who HAVE gone through it for real.

Had it been sold as a work of fiction there would have been no problem (and likely, no book sales) but he managed to fool many people (including Oprah). While I have no idea what legal remedies are appropriate, I do not feel that simple social ostracism is enough for someone like this.

10 Rebecca 01.13.06 at 10:55 am

I would assume the liability to the publisher would be in the form of harm to reputation. The claim would be that Frey’s deception besmirched Random House’s good name. I don’t think it’s a terribly compelling case, but it’s no more absurd (and rather less so!) than a lot of suits that go through our legal system.

11 David 01.15.06 at 4:42 am

In response to Ted’s question about the copyright issue in the letter from Frey’s attorneys, the letter would need to be registered before the author can claim copyright protection.

See Graham v. Beverly, 2004 WL 1920710 (Ohio App. Ct. Aug. 30, 2004) (While an author of letters is entitled to a copyright in the letters, he must obtain a copyright before he can claim copyright protection. See Title 17 of U.S.C.; Salinger v. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987). Prior to 1978, unpublished letters were protected by common law copyright, but the 1976 Copyright Act now preempts the common law of copyright. Not having a copyright in the material precludes Graham from asserting a copyright interest in the letters he sent to the defendants). See also, Pham v. Jones, 2005 WL 3533436 (S.D. Tex. Dec. 23, 3005) (In order to obtain a copyright, a person must submit an application, deposit, and fee to the Register of Copyrights; prima facie showing of copyright in this case via receipt of document by Copyright Office & payment of application fee); Lish v. Harper’s Magazine Foundation, 807 F.Supp 1090 (S.D.N.Y. 1992) (letters registered with Copyright Office).

As for damages (assuming the letter was subject to copyright protection), 17 U.S.C. § 504(b) of the Copyright Act provides that a successful plaintiff may recover “the actual damages suffered by him as a result of the infringement, and any profits of the infringer that are attributable to the infringement.” It’s unclear how a letter from Frey’s own attorneys could cause damage to him or his reputation since it does nothing but defend him & attempt to clarify the alleged misunderstandings. If anything, it helps him by providing a rebuttal.

The Act also provides, in certain circumstances, for statutory damages and attorney’s fees. Neither of these would apply to the letter from Frey’s lawyers, however, because Section 412 of the Act authorizes their payment (1) with respect to an unpublished work only if the unauthorized publication occurs after registration, and (2) with respect to a published work only if the registration occurs within three months of publication. Neither of those conditions has been met here.

Nor is there any true market value for the letter (as, for example, there might be for letters from President Lincoln). As such, damages would be nominal, if any.

Bottom line – it appears to be an empty threat.

12 David 01.15.06 at 4:46 am

Sorry, that was Jon who asked about the copyright issue, not Ted.

13 Victor M. Serby 01.15.06 at 7:20 am

I am responding to Jon Fischer’s post.

First, an infringement suit may not be maintained for works of U. S. origin unless the copyright is registered.

Second, registration must be made within 3 months after publication of the work or prior to an infringement of the work, for the copyright owner to get statutory damages (which can be significant) and attorney’s fees in its suit. Otherwise, only an award of actual damages and profits is available to the copyright owner. As Mr. Fischer pointed out, actual damages and profits are either non-existent or trivial.

The last and biggest hurdle for Singer, the author of the letter to the Smoking Gun, is the fair use doctrine which is codefied at 17 USC 107. Section 107 states in relevant part: “…the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The Smoking Gun’s publication is the type of activity that Congress intended to protect when they codified fair use. Any infringement lawsuit against the Smoking Gun would be frivolous and subject the filer to sanctions by a federal judge.

14 Ted 01.17.06 at 12:53 am

The fact that the book is a pathetic exageration, an exercise in shameless self aggrandizement does much to insult the many people who HAVE gone through it for real.

The point remains that such injuries are not well redressed by the legal system. I don’t get to sue Scott Turow for exaggerating the plight of a first-year law student, nor should I, even though I’ve actually gone through it.

15 Overlawyered 01.17.06 at 12:11 pm

A Million Little Plaintiffs: unsurprising update

WSJ Law Blog: “As surely as day follows night, a class-action lawsuit was filed Friday against James Frey and Random House over Frey’s alleged lies in his best-selling memoir ‘A Million Little Pieces.’” Christine Hurt…

16 ProfessorBainbridge.com 01.19.06 at 8:22 pm

James Frey learns we live in a litigious society

Smoking Gun exposes Oprah book club anointee James Frey as a fraudster. Oprah doesn’t care whether the book is true. I’m not surprised. As Queen of the Self-Help and Actualization Movement (SHAM), and enabler-in-chief of the culture of narcissism, she’ll

17 The Florida Masochist 01.20.06 at 11:37 am

Expected but troubling

What Ted is saying is far from being a long shot. I’ve blogged about the ridiculous class action suits that happen every day. Mr. Frey’s fraud could have far reaching implications and I’m a big reader of non-fiction. Time will only tell what damage F…

18 Overlawyered 01.25.06 at 11:14 am

A Million Little Plaintiffs III

Another class action over the James Frey affair; this one, in Seattle, seeks, inter alia, recovery for “lost time” spent reading the book, prompting the Bookslut blog to reconsider its opposition to tort reform. It…

19 Overlawyered 01.26.06 at 7:19 pm

Frey grilled

James Frey admitted on Oprah Winfrey’s talk show that The Smoking Gun’s investigation into his book was “pretty accurate.” (Howard Kurtz, “Oprah Winfrey Says She is ‘Deeply Sorry’”, Washington Post, Jan. 26). Which leaves us…

20 Mixk 01.28.06 at 5:42 am

Nothing in this case has amused me more than the lawyers’ letter to the Smoking Gun, which basically states, “your claim that our client is NOT a criminal is highly defamatory”. Has this ever happened before?

21 Bill Lewis 01.30.06 at 4:04 pm

Sad that people want to use the legal system to get redress for a case like this. The claims that Frey makes are not so much fiction as wild exagerrations of events in his life.

The real problem here is a therapeutic one–Frey wrote the way he saw his own life. His story of his life was distorted. But who could really be surprised about this? This seems to me like behavior of a recovering adddict.

The comments here seem most upset because he held himself up as a role model. Maybe–but that certainly did not happen in the book. the book is powerful because it is his story of his experience. It certainly did not seem to me like he was holding himself out as a model to others.

22 Overlawyered 01.31.06 at 9:34 am

Welcome Forbes.com readers

I’m quoted and this site is mentioned by a Daniel Fisher Forbes.com article on the James Frey class action litigation. (“A Million Little Lawsuits Over Frey”, Jan. 30). The article refers to our January 12…

Comments on this entry are closed.