How Can Published Memoirs Be Trusted?

ALISON ST. JOHN: KPBS listeners were no doubt distressed to hear the accusations that the book, "3 Cups Of Tea," featured as our One Book One San Diego in 2008, contained exaggerations and possibly outright lies. Greg Mortenson, the co-author, has been widely admired for his passion for a cause: building schools in Afghanistan and Pakistan. We can't address the allegations that the millions Mortenson raised for his non-profit the Central Asia Institute may not have all been spent on schools. Nor can we settle the issue of whether everything in 3 cups of tea was true. But we can speak with one of San Diego's foremost literary agents about the business of publishing autobiographies ... Is the bright line between fact and faction eroding?

GUESTS: Sandra Dijkstra, literary agent, Del Mar

Jonathan Kirsch, intellectual property attorney, Los Angeles

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ST. JOHN: KPBS listeners were no doubt distressed to hear the accusations that the book, three cups of tea, featured as our One Book, One San Diego in 2008m, contained exaggerations and possibly outright lies. Greg Mortenson, the coauthor has been wide he admired for his passion for a cause, building schools in Afghanistan and Pakistan. We can't address the allegations that the millions that Mortenson raised for his nonprofit, the central Asia institute may not have been spent all on schools, nor about we settle the issue of whether everything in three-cup was tea was true, but we can speak with one of San Diego [CHECK AUDIO] our guests are Sandra Dijkstra, literary agent from Del Mar, and Sandra, thank so much for joining us.

DIJKSTRA: Fine to be here, [CHECK AUDIO].

ST. JOHN: Thank you for being with us, Jonathan.

KIRSCH: Happy to be with you, thank you.

ST. JOHN: So Sandra, what is your opinion about what Greg Mortenson has been accuse of? How serious are these allegations do you think?

DIJKSTRA: They are very serious. On the other hand, he has done so much good. And I'm gonna just start by saying that 60†minutes could make much better use of its time, for example, by investigating the oil companies which are gouging us and the fact that their royalties that they're paying are dated from 1950, they're completely out of date, and that they get tax subsidies. These kind of big egregious situations in America, these are the kinds of things that 60†minutes should be investigating. But to look at Greg Mortenson, he has done so much good. Yes, he -- I mean, none of us should judge him until all the facts are there. I am one who would be more forgiving, I think that he has done so much good. I don't think that he has taken this money for personal use. But again, it's early, it's early.

ST. JOHN: And if we were to focus not so much on the management of his nonprofit, but more the facts in his book, since you're a literary agent. If a writer that you represented turned out to have written a fictionalized memoir, what would be the effect on your agency?

DIJKSTRA: Yeah, well, it would have a serious effect, and we did have an incident many years ago with Lloyd Jones whose very first American book, the [CHECK AUDIO] turned out to have exactly the same problem, which a British reviewer discovered that he had compressed and condensed and created composite characters for that book, and it caused a real scandal. And I think it -- you know, we as agents, we represent that the material we are selling is what it says it is, a true memoir. And it is amazing to me how many of these incidents we continue to have, where authors seem to feel that they can legitimately present compressed and condensed information like that. And yet all memoirs, you know, are based on memories, and some memories are partial. I have an author right now trying to write her mother's life. And this is -- it's a vexed situation, because in a way, memoirs can be fiction. And let us not forget that the man who worked with him was a professional writer.

ST. JOHN: Right.

DIJKSTRA: And it's not clear whether Greg was fact checking himself everything this professional writer did with his book.

ST. JOHN: Why do you think the professional writer is not sort of coming in for more of the effect here?

DIJKSTRA: Well, that's a very good question, Allison of it's a really good question. Because we don't know of it's like looking into a marriage what the relationship between Greg Mortenson and the professional writer was. But oftentimes, you know, authors can place their faith in that professional writer, and he's not been attacked at all.

ST. JOHN: David Relin, I believe his name was?

DIJKSTRA: Yes, I believe that's his name. Yeah.

ST. JOHN: Okay, I was gonna ask you whether anything like this has ever happened to you, have you ever been the agent of someone who's†--

DIJKSTRA: Yeah, I had this situation. Lloyd Jones is now an international best selling author, and we parted company many years ago, but that first book, ferris Strauss, the author was flying in from London, and Jonathan Galacy joined me and said, sandy, what are we going to do, there's been a review in the London Times or London Independent, I forget, and apparently that little doctor does not exist in Albania. And they canned the book, Ferris Strauss did. And then I did turn around and sell it to Harcourt Brace, which then was in this town, was in San Diego at the time. But you know, Lloyd Jones in his most recent book, his publisher has an introduction in which he recounts this story, partially, and it's interesting. Lloyd Jones is now known for Mr. Pip which was a booker nominee. But it's interesting that the publisher makes it seem as if this caused Lloyd Jones to go into a freeze in terms of his writing, that it completely blocked him for many, many years. I know that I thought two manuscripts I didn't want to represent because I didn't think they were good enough.

ST. JOHN: Well, there's a difference between being good enough.

DIJKSTRA: Yeah.

ST. JOHN: And whether it's represented as an autobiography.

DIJKSTRA: Exactly.

ST. JOHN: So when somebody presents you with an autobiography, what do you feel is your own -- is it in your own self interest to double check the facts?

DIJKSTRA: Well, you know, it's very -- Jonathan is our intellectual property lawyer, and I'll be interested to hear what he says, but I can recall that when random house bought an Chi Minh's Red Azalea years and years and years ago, and we were selling it as a novel, the publisher wanted it to be a memoir, because that way they could promote it better. So what happens in all of these instances is that the publisher is trying to figure out how they can maximize sales of the book. And an which I at the time said, well, my family's in China, I want to protect my family, and I want it to be a novel. Now I'm gonna be very embarrassed, because you know what? I think that ultimately it was published as a memoir, and that an which I did go back and try to make everything as correct as possible.

ST. JOHN: Interesting.

DIJKSTRA: But it is a situation that is an ongoing situation. And Jonathan can probably speak to the fact that authors get sued when their fiction represents characters who can say, hey, that's me in the novel. That's I in the novel.

ST. JOHN: So Jonathan, I'm wondering who really needs to take the rap if something's being sold, and perhaps the publish upper has a say in marketing it as truth, because it sells books better. ? Who really takes the rap when a question like this comes up?

KIRSCH: Well, there is it a legal side to this question. And the contracts that publishers use, the contracts that I use when my clients are publishers contain assurances that ask the author to guarantee that if the book is represented to be fact, a work of fact, that it is factual. In other words, publishers are trying to protect themselves, legally, by extracting from the authors what's called a representation of warrant as to the -- whether a book is fact or fiction. But I have to concede the point that sandy has raised that sometimes the publishers are complicitous in the burring of these lines and they do it for marketing reasons. The famous example is the James Frye's scandalous a million little pieces, which turned out to be a fictionalized memoir, was originally conceived of as a novel. And it's an example of how the publisher felt that it would have more bounce in the marketplace, and sell more copies, if it was packaged as a real story. The other issue that I think is very important, and in this, I join sandy wholeheartedly, there's a certain sanctimoniousness about these kinds of criticisms. For centuries, for millennia, we have not held writers of what we would call nonfiction to this standard of purity where no fictionalization, no compression, no invention is permitted. You know, Herodotus invented the speeches that he put in the mouths of famous men. This has been going on for centuries. And when people complain about this fact, that things are tweaked or twisted in works that are ostensibly nonfiction, it reminds me of Claude Raines in Casablanca declaring his shock and horror that there's gambling at Rick's. This goes on all the time. I think what makes this book a little more heart breaking.

ST. JOHN: Yes.

KIRSCH: Is it reminded me so much of the death of pat till man. Pat till man, the football player who gave up a professional career to go fight for his country and is killed in battle, and is advertised as a heroic death, and then it turns out he was the victim of friendly fire. And it just kind of breaks your heart when someone you've admired is misrepresented. And I think that's very much at work here with Three Cups of Tea, for the reasons that Sandy has articulated. This is a man who has done good work, and he's been caught making perhaps with the assistance of his professional ghost writer, making his narrative a little more entertaining by compressing time and the order of events.

ST. JOHN: Well, Jonathan is this a warning to waters who may be feeling pressured to sign contracts that make them responsible for something that they're actually not comfortable with themselves?

KIRSCH: Well, as a lawyer, I have two things to say from the legal point of view, and one is that obviously authors, agents, and publishers should be clear with each other about what the book is and what it isn't, and they should have shared expectation. And if there is a fictionalization going on, it should be acknowledged. But the most important thick, and it was true with James Frye, and it would have been true in this book as well, there's a simple, transparent solution, and that's to put in an author's note or a publisher note at the beginning of the book, commonly done, very widely done, that explains to the reader, forthrightly, whether there has been compression of time, alteration of coniology, invention of character, compositing of characters. Just tell the reader what you're doing, and I believe that both from a legal point of view, and from an ethical point of view, it removes this problem. It takes the John crack howers of the world, who was the critic of this book, it takes the ammunition away from them. You simply, frankly, concede some of the events have been compressed, some of the coniology has been altered.

DIJKSTRA:

THE COURT: So sandy has a literary agent have you had authors who have come to you and said I am being encouraged by my publisher to make this something other than I have intended and what would your advice be?

DIJKSTRA: Well, you know, I think the word Jonathan used a lot bit earlier, complicitous, we are all in a way complicit us, because for example, recently, we just have been reading over the weekend, two of us, a memoir, and it's by an author I represent and a lover, and I knew the person to whom, you know, the person in her family who had died, and this is so difficult. Because if you read the reviews of the memoirs that are out there, there has to be a shock factor, there has to be -- this has to be some kind of -- I mean, almost extreme, some kind of extreme, or else it's a very, very tough tough sell. Which is not to devalue the life of this person or her marriage. The book she's written is perfectly wonderful for her family. The question we as the people who take it to market have to ask ourselves is who will read it, and that starts with the publisher. Who will read it?

ST. JOHN: So you might be in a position of also fating this dilemma of how am I gonna get my author accepted by a publisher unless there's some changes? How am I gonna get my author accepted by a publisher†--

DIJKSTRA: Yeah, and I've been on the other side of the coin too with an author who is trying to be as honorable as possible herself, therefore because her mother is dead and this is a story from earlier in the 20th century, she's decided to write it as a novel. And writing it as a novel loses the immediacy that we would have had. Even if she were in the book trying to hunt for who her mother really was. So we're almost like psychiatrists at times, you know, trying to suss out what the author wants from this experience, but at the end of the day, it's gotta be a book, and it's gotta be a book that we can sell, and that publishers want to buy. So I think that all of us are aware of these scandals, and all of us in the industry want -- want never to be involved, you know, the way that, for example, man TAL ease had to come on Oprah and talk about James Frye. No one wants to be in that position. So all of us do, and indeed, as Jonathan said, when the author signs a contract, there are very clear clauses where placing the responsibility for honesty and also for not libeling anybody.

ST. JOHN: On the author.

DIJKSTRA: On the author's shoulders, yeah.

ST. JOHN: Interesting. 1-888-895-5727 is the number if you have a question for Sandra Dijkstra, literary agent from Del mar here, or Jonathan Kirsch who's her intellectual property attorney. So why is it, Sandra, that it's so much easier to market memoirs? I mean, is it really getting difficult now to market a fiction?

DIJKSTRA: Well, we are -- Americans really -- we like the real thing. And what publishers like about memoirs is that the author can then go on and say this was my story and we can all emote together, you know? On the today show. Which is our new form of religion, a lot of Americans, on Oprah, this kind of thing. Where the piece fiction is more difficult. If you remember Amy Thames' mother coming out of the preview of the joy luck club, and we all looked at her and said, oh, my goodness, and she said, oh, no, no no, my life was much, much worse.

ST. JOHN: Oh, that's right am you are the agent for Amy tan, and that's a best seller. Was that marketed as fiction in the end?

DIJKSTRA: Oh, yes, it certainly was. But people always thought that Amy's husband, that she didn't like men and -- so it's an interesting, it's an ongoing question. Catherine Stockett for the help, the book that's been on the best seller list for the last two years in hardcover, one of the black women from the community who is her sister's maid has sued Catherine Stockett, and said that's me in your -- that's I in your book. You know?

ST. JOHN: So that's another question for you, Jonathan, as to -- if in fact it's a fictional book, are authors still vulnerable to lawsuits from people saying you're defaming me?

KIRSCH: Well, they definitely are. And I want to tell you a little war story of my own. About two years ago, I got on an airplane and flew to Atlanta and was driven out to a little rural County in Atlanta where I sat on the witness stand and testified in a trial for precisely this claim. A woman had written a novel, and in the novel, she introduced a character, it was a fictional book advertised and labeled as fiction. But one of the characters was a highly distinctive person based on someone she knew. And she made the fatal error of using colorful and distinctive features of the real person, and then attributing to the character all kinds of scandalous behavior. So that someone could readily, who knew the person on which the character was based, could readily say, I know that character, I know who that character is because I recognize all of these factual traits of I didn't know she was a slut and a drunkard and foul mouthed and promiscuous on top of it. That was -- generated a successful libel case by the person on whom the character was based. Now, in that case, I think a disclaimer would have helped a lot too, but you're damned if you do, and you're damned if you don't under certain principles of law.

ST. JOHN: It does seem like in both cases a disclaimer is increasingly advisable for authors.

KIRSCH: Well, it introduces transparency, it puts the reader on notice. By the way, one of the paradoxical or surprising results of the James Frye case is that there were actually lawsuits filed by readers who claimed to have been defrauded because they thought they were buying a memoir. Now, that's a very odd and --

ST. JOHN: How did that get resolved legally?

KIRSCH: Well, the publisher offered to give a refund to anybody who bought the book and felt that they were cheated, and a certain number of people were paid back the purchase price. The case didn't go anywhere.

ST. JOHN: But in the case of three cups of tea, is it possible the publisher might have the right to claim back the royalties or take any kind of financial action against the authors including Greg Mortenson?

KIRSCH: Well, if the contract contains the standard clauses that both sandy and I have referred to, the publisher would have the legal right to sue the author for preach of contract or even for fraud. If it was not complicitous in the process of fictionalization.

ST. JOHN: Right. That is the big question, isn't it?

KIRSCH: The question will be did the editor of the book know and maybe even participate in the kinds of narrative techniques -- they're not high crimes of they're just what writers do to make a story more interesting. But if the publisher's fingerprints are on those decisions, then and there they will not, certainly not be able to say, well, we were damaged and the contract was breached. But there is a basis in the contract for making those claims.

THE COURT: So is this, Sandra, something that as an agent you're dealing with a lot? It sounds like helping an author navigate contracts with publishers, this question about whether it should be fiction or fact maybe -- maybe at the heart of a lot of negotiation.

DIJKSTRA: Well, you know, there's another way in which it comes to play. We have an author who is a hedge found manager, David Einhorn, a very prominent one who has taken on Lehman brothers, and he's very concerned about the ethical issues rising from the financial industry, and he wrote a book, fooling some of the people all of the time, in which he began to see a pattern in a company that he was following, which he was following and he suspected that their bottom line was being falsified. And so he went after them, and what happened was, what he discovered was that the financial journalists and the SEC were kind of complicitous in not wanting to deal with this, and instead they turned on him and began examining him. And so when this book was written, I can't tell you how many lawyers went over it because of the fear of lawsuits. And that's the kind of -- that's the place where publishers really do have lawyers. You know, who look into -- I mean we have a book coming in the summer called oil kings, I guess it ended up being, about the '70s and the way in which we colluted with the Saudis to get rid of the Shaw. And Andrew cooper's delivery money has been held up, because the Simon and Shuster lawyers just continue to go over every word so that Mr. Kissinger won't come and sue, because there are a number of living people from that time who are written about in the book. That's where -- that's where publishers do get involved in fact checking. I mean, they wouldn't -- well, it is fact checking to some degree.

ST. JOHN: But in fact it's not like a newspaper. As a reader, you should be aware that publishers are not that much in fact checking.

DIJKSTRA: No, they're really not.

ST. JOHN: We is have to come to the end of our time here, Sandra.

DIJKSTRA: Oh.

ST. JOHN: So a very interesting discussion. We could go on a while longer. But thank you.

DIJKSTRA: Well, I should say that I am not Jonathan Kirsch's agent, but I should say that he's written one of the best books on author law.

ST. JOHN: So we're gonna need to sign off here, but Jonathan Kirsch, you are an intellect property attorney in Los Angeles. Thank you so much for joining us.

KIRSCH: It's been my pleasure, thank you.

ST. JOHN: And Sandra Dijkstra. Literary agent here in Del Mar.

DIJKSTRA: Thank you, Alison. Bye-bye.