A Million Little Lawsuits

Samantha J. Katze, Note, A Million Little Maybes: The James Frey Scandal and Statements on a Book Cover or Jacket as Commercial Speech, 17 Fordham Intell. Prop. Media & Ent. L.J. 207 (2006): A useful overview of the legal background for consumer protection lawsuits against publishers. I disagree with Katze’s conclusion – that statements on a book cover should never count as commercial speech for consumer protection purposes – but it’s still a concise and clearly argued piece. (For one thing, Katze’s argument skips over the false designation of origin problem, as with Stephen King’s The Lawnmower Man or false claims that a biography is authorized. If that’s noncommercial speech, then, I would argue, either trademark law or First Amendment law is going to end up damaged, and given the likely equities in such a case I’d fear for the First Amendment.)

One factual update: as discussed earlier here, the JT Leroy saga has resulted in litigation. Katze suggests that the different levels of outrage to which Frey and Laura Albert were subject is evidence of some underlying uncertainty about just how bad it is to fool people in a memoir or a memoirish piece of writing, but one could also argue that Frey’s greater commercial success – not to mention the fact that he positioned his book as a real memoir, rather than a work of fiction with “autobiographical” elements – accounts for the greater backlash.

ETA to correct spelling of Katze's name.