Industry & Advocacy News
March 12, 2015
In a defamation lawsuit, can an author be forced to hand over profits earned on the book in addition to libel damages? In the past, the answer has always been “no,” and this week we lent our support to a friend-of-the-court brief arguing that the answer should remain “no.”
The Guild joined a coalition of 33 media groups who submitted an amicus brief urging a federal appeals court to reverse part of a ruling that awarded former Minnesota Governor Jesse Ventura an unprecedented verdict in a libel suit he filed against the estate of Chris Kyle, the late Navy SEAL and author of the bestselling autobiography American Sniper.
The defamatory passage, a mere page and a half in Kyle’s 379-page autobiography, concerns an alleged bar-fight between the author and Ventura—an encounter Ventura has denied. Before his death, however, Kyle testified under oath that his story was accurate.
In the case, Ventura v. Kyle, Ventura persuaded a federal district court that he’d suffered approximately $500,000 in libel damages. That windfall was compounded by the court’s award for unjust enrichment, a separate charge from libel: $1.3 million, to be taken from the book’s profits. The brief joined by the Guild argues that the unjust enrichment award should be overturned. Never before in American law has a defamation plaintiff walked away with a share of a book’s profits; defamation damages are traditionally limited to the recovery of money only for the injuries sustained by the defamed, not any money received by the defamer.
The media groups also contend that allowing an award of the book’s profits in a defamation suit cannot be reconciled with the First Amendment, which assures, in the words of the brief, “the widest possible dissemination of speech on matters of public concern.” The prospect of staggering damage awards for defamation could lead publishers and other distributors of creative works to avoid important but controversial subjects, chilling freedom of expression. As it happens, American Sniper’s publisher, HarperCollins, announced in July that it would remove the passage in question from the book. In a separate action, Ventura sued HarperCollins anyway.
In addition to its First Amendment implications, the case highlights the importance both of negotiating contractual protections against libel and invasion of privacy suits, and of ensuring that a publisher’s insurance protects you against these types of claims, particularly when writing on a controversial subject or person. We’ll be exploring these contractual issues in greater depth as we focus on unfair and outdated contract terms throughout the year.