Why the heck can’t TV shows get mediation right? I mean, if a comedy like The Wedding Crashers can do it, why not courtroom dramas? Fairly Legal has made a mockery of what mediation is about, but I expect USA shows to be silly. Now comes The Good Wife, and I usually expect better from them. I’m a mediator, and this kind of error hurts my feelings because the writers clearly don’t give a hoot about getting mediation right. Mediation is suddenly popular with writers, so why won’t they find out what really happens in a mediation session?
Getting it wrong
Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.
The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.
The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.
The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.
The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.
Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.
Wednesday, March 23, 2011
Saturday, March 5, 2011
The Suit Against Jimmy Carter: Why Writers And Publishers Should Be Up In Arms
I covered the suit filed against former President Jimmy Carter and Simon & Schuster regarding Carter’s 2006 book Palestine: Peace Not Apartheid a couple weeks ago on The Debriefer. Literary agent Peter Cox and I spoke about the dangers to writers and the publishing industry if the case succeeds. The more I think about this case, the more it bothers me, so it bears more analysis.
The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.
The New York Consumer Protection Act provides:
The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.
Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?
The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”
The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.
The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.
Morons.
If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.
Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.
How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.
When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.
Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.
Danger Will Robinson. Here there be dragons.
The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.
The New York Consumer Protection Act provides:
The term "false advertising" means advertising, including labeling, of a commodity, ... if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.
The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.
Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?
The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”
The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.
The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.
Morons.
If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.
Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.
How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.
When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.
Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.
Danger Will Robinson. Here there be dragons.
Sunday, February 27, 2011
The Good Wife, The Right of Publicity, And Why Writers Should Be Scared
A recent episode of The Good Wife, a consistently good legal drama, focused on what I think is one of the most important issues affecting the writing and publishing industry today: the right of publicity. In the show, a character similar to Mark Zuckerberg didn’t like the way he was portrayed in a movie similar to The Social Network. He sued for defamation. Enter our hero law firm.
The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.
Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.
Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.
This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.
There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.
• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.
• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.
• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).
• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.
That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.
I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.
But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.
Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.
To recap the risk if all these cases are won, the following will be pretty much off limits:
• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)
What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.
The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.
Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.
Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.
This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.
There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.
• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.
• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.
• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).
• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.
That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.
I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.
But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.
Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.
To recap the risk if all these cases are won, the following will be pretty much off limits:
• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)
What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.
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