Why Publishers Don't Fact-Check Memoirs

Books

By KATE TAYLOR
March 5, 2008

Riverhead Books announced yesterday that it is recalling all copies of Margaret Jones's "Love and Consequences," a supposed memoir about growing up among gangs in South Central Los Angeles that turns out to be fictional.

Whenever a case like this comes to light, someone asks: Why don't publishers fact-check their books?

The basic answer is that it's not practical. Publishers release hundreds of books each year, most of them several hundred pages long. A publisher simply can't afford to fact-check all of those books to the standards of, say, the New Yorker, where a fact checker essentially re-reports each story.

As one person in publishing who asked not to be named said: "You couldn't get these books out the door, at least not below a $100-a-copy price point, and then nobody would buy them."

In the context of product liability suits, courts in fact have ruled that publishers are not responsible for independently verifying the accuracy of their books. In 1991, the United States Court of Appeals for the Ninth Circuit rejected a suit by a California couple, who had been sickened by eating poisonous mushrooms, against G.P. Putnam's Sons, the publisher of a book called "The Encyclopedia of Mushrooms," which the couple had used as a guide. In the ruling, the judge said that holding publishers liable for the accuracy of the contents of their books would inhibit the "unfettered exchange of ideas" and potentially infringe on the First Amendment.

Another answer to why publishers don't fact-check involves the unique relationship between an author and a publisher. Whereas a reporter typically is an employee of the newspaper or magazine he or she writes for, and the newspaper or magazine usually owns the articles it publishes, an author of a book is an independent contractor.

"An author owns the copyright to the work, brings it to a publisher, and makes representations and warranties that it's original and not libelous, and the publisher is basically financing and shaping it," a lawyer who was formerly the deputy general counsel at Simon & Schuster, Eric Rayman, said.

Typically the warranties and representations clause will also include a statement to the effect that "'everything asserted in the work as fact is accurate,'" Mr. Rayman said.

Riverhead said in a statement that each of its authors "promises us the truth in their publishing agreement," but it declined to specify the terms of its contract with the author of "Love and Consequences," whose real name is Margaret Seltzer.

If an author's contract does include such a clause, and the author is found to have lied, a publisher could potentially claim violation of contract. Whether there's any point in suing an indigent author is another matter.

"The warranties don't have a lot of practical effect for a publisher when you're talking about an author who is, as we say, 'judgment-proof,' meaning they don't have any assets," a lawyer at the firm of Williams & Connolly who represents several political authors, Robert Barnett, said.

In some contracts, an author indemnifies his or her publisher against claims of libel, copyright infringement, or fraud; in others, the author and the publisher may agree to split the cost of defending such suits and any damages.

After James Frey was found to have falsified some aspects of his memoir, "A Million Little Pieces," people who had purchased the book brought class-action suits against both Mr. Frey and his publisher, Random House, claiming consumer fraud. The suits were settled, with Mr. Frey and Random House agreeing to offer a refund to anyone who purchased the book before the facts came to light, and to make charitable donations. A spokesman for Random House, David Drake, declined to specify the terms of Mr. Frey's contract, but said that "both parties" — i.e., both Mr. Frey and the publisher — "contributed to the settlement."

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