Last year, the lit journal I work with had to pull a piece they had published after they received a cease and desist letter from someone who had been featured in someone else’s piece. Although we, as writers, did not believe the case would have succeeded if it had gone to court, that was not ours to argue. The agreement the journal has with writers is that if we receive a letter like that, we pull the piece. We cannot afford to open ourselves up to a legal battle. We do not have the funding to fight something like that, we can not risk being sued.
This is the kind of situation memoirists face all the time when they write about their lives. It is a fear that comes up constantly with my clients. If I write about people in my real life, people who may have done harm, can legal repercussions come against me? Things like cease and desist letters might have no real legal grounding, but they can still carry weight and that weight can have real consequences.
For this writer, she lost a piece that had been published and featured on the site for some time. We had to take it down. She lost the ability to say it was available in the journal because of this situation. This was not the only place he was sending letters to, and she understood that he was doing this across the board as she wrote her way through her experience. We felt for her deeply. Everyone on staff is an artist and a creator. Those of us who pulled the piece write nonfiction ourselves and are sympathetic to the argument that we should be able to write about our own experiences.
When you publish a memoir with a major house, there are publishers who will back you no matter what. They have the budget. They might laugh at a simple cease and desist letter. Their lawyers might respond aggressively. Smaller presses and nonprofits do not have that kind of funding. Even if we believed we would win, we would not have been able to afford the legal fees required to get there. Even if the promise were that we could recover costs later, we would not have been able to hire attorneys in the first place. The journal is a labor of love, not money, and we couldn’t risk that love for one piece.
This is something you need to be aware of. It can happen when you publish in small venues, and it can happen at a large scale as well.
One of the biggest examples, and one I talk about often I think because I have a personal connection to it, is what happened with James Frey. You know it. How he got called out by Oprah Winfrey publicly and it was horrible to watch (just google "Oprah calls out James Frey" if you don't know what I am referencing). When he admitted that parts of his memoir were fabricated, the fallout reshaped contracts and changed how publishers work with memoirists. There were lawsuits. Readers were given the right to return their books and receive refunds because of the falsehoods. Bookstores that wanted reimbursement could pursue it under terms that went beyond normal return policies. The publisher had to absorb those costs. That scandal shifted how memoir is vetted and how risk is allocated in publishing agreements.
When we write memoir, there are risks that go beyond what we tend to imagine, especially when we are starting out and do not yet have a major publisher behind us. You have to consider what the other person is willing to do and how far they are willing to go. You have to consider whether they have the financial incentive and the resources to follow a cease and desist letter with an actual lawsuit. Is it a relative who drafted a letter at no cost, or is there serious funding behind it?
I still believe we should be able to write about what happened to us. If someone wanted to be written about differently, they should have behaved differently. At the same time, you cannot write with the agenda of harming someone. If it appears that harm is the goal, a judge may side with them.
I have been meaning to talk about this for a while. Even though it happened last year, I think about it often in relation to my own work. When I am preparing to send out a piece, I think about what it would feel like to have an offer rescinded or to have something taken down. I think about the embarrassment of being told that someone sent a direct legal letter to my publisher. I think about the awkwardness of that conversation, and the sadness I would feel in her position. I still feel for this writer. I hope the dude starts to back the fuck off.
I have had some major changes in my own life recently. Like a big move. If you are new or think you might have missed some letters, you can read all the old letters here.
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Author Brand Strength
by Andrea Guevara, Author Brand Expert (& Mindset Explorer)
No trend-seeking clutter or overwhelming marketing BS--just expert advice & ideas to help you stay focused on what's most important for your author brand, career, & life. |
