Last week’s déjà vu publishing scandal—Margaret Seltzer’s admission that her memoir, Love and Consequences (Riverhead), about growing up a biracial gang member in South-Central L.A., was wholesale fiction—has brought many now-familiar questions to the fore: Why don’t publishing houses fact check? How do editors get duped? But one new wrinkle is a legal one. Although many insiders PW contacted for this story declined to comment, some think it’s time that publishers consider legal action against authors who misrepresent themselves, or stipulate harsher penalties for lying in contracts.
Although Penguin has not indicated it will sue Seltzer—the house did not respond to a question about whether a lawsuit might be in the works—there is talk in the industry that now is a good time to set a precedent.
“The best way to stem the problem is for a publisher to take legal action to recoup their costs,” said Robert Gottlieb of Trident Media. Calling publishing “a handshake business,” Gottlieb, like the majority of those interviewed, said that there’s no quick fix for preventing lying authors from slipping through the cracks. Therefore, he explained, the penalties for lying need to be more severe. A lawsuit might work as a scare tactic. “I think what’s important is that, when these things occur, publishers aggressively pursue the author not just for the advance but for all the costs that went into producing and distributing the book. That might have an impact on people who are thinking of such a course.”
Although the standard publishing contract stipulates that an author is telling the truth—about who they are and what they write—it was designed to combat other potential legal problems. “The focus [of publishing contracts] has always been on insurance against libel, copyright infringement, invasion of privacy and trademark infringement,” said publishing attorney Lloyd Jassin. The concern, he explained, historically has been that authors might misrepresent someone else, not themselves.
While the standard contract still gives publishers grounds to sue over author misrepresentation, Jassin said it wouldn’t be a bad idea to spell out the penalty for this kind of fraud more directly. “It’s better to have it expressly stated [in the contract] because it might save legal fees.” He also added that Penguin, lawsuit or not, is on solid legal footing to recoup its advance from Seltzer.
But not everyone sees the courtroom as the answer. Ellen Archer, senior v-p and publisher of Hyperion and Voice, quipped that a lie detector might be more cost effective than a team of lawyers. “No one wants to get tied up in litigation, and most authors don’t have that much money, anyway.”
Simon Lipskar at Writers House also sees the legal route as futile, agreeing with Archer that writers rarely have deep pockets. “Publishers know better than anyone that authors usually don’t have much in the way of cash. That’s why lawsuits are brought against companies in these situations.”
“It’s tempting to think there’s a way to legislate or otherwise anticipate situations such as this one, and to shield ourselves, our companies and readers from them. But I honestly don’t think that is possible,” said Leigh Haber, v-p and editorial director of Rodale and Modern Times. “Someone [like Seltzer] this apparently hell-bent on lying is probably not going to let a contractual clause get in her way.”
