Katherine Giles was a Solicitor at Arts Law.
Throughout literary history writers have not shied from bending the truth a little. There have been many small deceptions, little white lies and autobiographical exaggerations. The recent furore surrounding the book Forbidden Love, penned by Norma Khouri, is therefore, hardly novel, although, recent revelations indicate that the book may actually be more novel than not. Nonetheless, the scandal raises interesting questions about the often-blurry relationship between fact and fiction; the ethical and legal questions raised when authors lie to readers and their publisher; and whether it is appropriate to appropriate someone else's story.
Along with the obvious ethical questions surrounding literary deception there are significant legal issues. Looming largest will be the effect of the publishing agreement that normally exists between an author and their publisher, in particular, any warranties the author is required to give in the agreement, and the ramifications for the author if he or she breaches these warranties.
The 'non-fiction' book Forbidden Love revolves around the Jordanian life of Norma Khouri. It follows the events that lead up to her flight from Jordan after her best friend and work colleague Dalia (a young Muslim girl) falls in love with a Christian man and is consequently murdered by her father. Recently, the Sydney Morning Herald published allegations that Khouri was really Norma Bagain Toliopoulos. She had apparently lived in the USA from the age of three and is currently being investigated for alleged fraud. The allegations included the claim that she has appropriated someone else's story for her own gain and represented it to the publisher and the public as a piece of non-fiction, when it is perhaps entirely fictional or at least a biography rather than autobiography.
My life as a hoax: the history of Australian literary hoaxes
Australia is no stranger to literary hoaxes. During the 1940s the Ern Malley affair shocked the Australian literary world. The affair involved the publication of poems written by James McAuley and Harold Stewart in the literary magazine Angry Penguins, under the fictional name Ern Malley. The poems were full of nonsensical sentence structures and ideas, and have been described as a mocking criticism of the avant-garde poetry of the day.
More recently, in 1996, it was revealed that Helen Demidenko – the winner of the Vogel Award and the Miles Franklin Award for her novel The Hand That Singed the Paper, and supposedly the child of Ukrainian parents – was really Helen Darville the child of British migrants. Darville had used a fictional name and personae to write a non-fiction book, which was really a piece of fiction allegedly full of appropriated material that infringed the copyright and moral rights of various authors. Whilst the legal issues were never litigated there was a frenzied media debate.
In 1997 it was exposed that another prize winning author Wanda Koolmatrie, whose novel My Own Sweet Time had been published by the Aboriginal co-operative Magabala publishers, was really Mr Leon Carmen: who is neither female nor indigenous.
The world of publishing: warranting the truth
When a writer blurs the line between fact and fiction a myriad of ethical questions arise. For example, what happens when an author approaches a publisher with a piece of work, which the author claims, is non-fiction? Do publishers have a responsibility to the public and those who purchase the book if they publish it as a piece of 'non-fiction'?
Beyond the ethical questions are the legal issues: which are an important consideration for any author about to sign a publishing agreement. And whilst the Dimidenko affair raises questions about copyright and moral rights, the most recent scandal surrounding Khouri invites an examination of the promises an author makes to the publisher when they approach them with a piece of non-fiction work.
When an author signs a publishing agreement it will usually contain a warranty. A warranty is a promise or an assurance of some kind given in connection with a contract. The use of the word "warranty" illustrates the significance of the promise: it is a guarantee of truth. Whilst the exact wording of a warranty clause will be different in each individual publishing agreement, it will often look something like the example below.
The Author warrants to the publisher that to the best of his/her knowledge:
- the work is original;
- they are the sole owner of the work;
- the author has not assigned or licensed the work to anyone else;
- that it does not infringe the existing copyright or trade mark rights of any third party, or any Trade Practices provisions;
- the work contains nothing defamatory;
- all statements purporting to be facts are true, accurate and up to date; and
- if relevant to the work, the Publisher may also request a warranty that the work contains no recipe or formula of instruction that may cause harm or injury.
Usually the author will also be asked to provide an indemnity. An indemnity is protection or security against any damage or loss. As a result, the author will indemnify the publisher against any cost, expense, loss, injury and damage (including any legal costs paid by the publisher to compromise or settle any claim) as a result of any breach of the warranty. This includes any money the publisher has to spend defending any claim that the work is an infringement of someone else's copyright or contains incorrect, unlawful, or defamatory matter.
Further, the publisher may include a clause stating that the author is required to co-operate with the publisher in the defence of any claim (such as a defamation claim by someone written about in the novel) and if the author fails to cooperate it will be a further breach of the agreement.
The responsibility of the author
Providing a warranty and indemnity to a publisher is a serious but often necessary undertaking for an author. The Australian Society of Authors (ASA) in their book Australian Book Contracts state that if you are an author you should be:
"prepared to take responsibility for respecting others' copyright, and satisfying that your material is factually accurate (the best defence against defamation). If you suspect a danger spot, bring it to the publisher's attention."[i]
As a result, it is the author's responsibility to carefully consider the warranty in a publishing agreement and whether they will be able to comply with it.
On the basis of the publishing agreement advances against royalties are sometimes paid to an author, and the publisher is entitled to take legal action to recover these payments if there has been a breach of the warranty. There are a number of other possible remedies available to the publisher if there is a breach of warranty by the author, including:
Discharge of the contract –if the breach of the warranty is serious enough the publisher may be able to treat the contract as discharged, which means that the contract will be ended and both the author and the publisher will no longer be bound by it. If the breach makes future performance impossible the discharge would be automatic. However, for this to occur the publisher would need to show they are the innocent party and that they would not have entered into the contract if they had known that the author would not uphold the promises contained in the warranty.
Damages –If the breach is not considered serious enough to discharge the contract the innocent party will only be entitled to seek damages (monetary compensation). But to claim damages the publisher must show that they are the innocent party and have performed or were ready, willing and able to perform their part of the contract.
Contract law, including remedies, can be complex. The important thing for authors to understand is that if a warranty or contract is breached the repercussions can be serious and costly.
Commercial considerations should also be taken into account. For example, according to media reports, all publishing companies involved in publishing Forbidden Love have severed ties with Khouri. Further, it is alleged that Khouri's British publisher will sue for breach of contract. At this stage, however, it is unclear what remedies they will seek. Perhaps the most damaging ramification for Khouri is that publishers have refused to publish her second book and have withdrawn Forbidden Love from sale. The lesson here being that even if a writer is able to avoid legal action the potential damage to his or her reputation can be significant, and possibly career ending.
Before you sign on the dotted line…
If you are an author and are about to sign a publishing agreement you should be sure you understand the importance of the warranty and indemnity clauses in the agreement. Of course it is just as important to make sure you understand all the clauses in the agreement before you sign on the dotted line.
Get your contract reviewed and don't believe anyone who tells you, "it's simple and straightforward" or "it is a standard industry agreement." Always get independent legal advice before you sign an agreement because once an agreement is signed it is binding.
For further information on book publishing contracts please contact the Arts Law Centre of Australia or the Australian Society of Authors' Contracts Advisory Service.