Authors Guild Defends JT LeRoy

INTEREST OF AMICUS AUTHORS GUILD, INC.
The Authors Guild respectfully submits that the decision of the United States District Court for the Southern District of New York with regard to Plaintiff's breach of contract claim, was not only inconsistent with the evidence presented at trial, but also will have negative repercussions extending into the future for many authors. The right to free speech, and the right to speak and write anonymously are rights protected by our Constitution, and the district court's decision which holds that Laura Albert's use of pseudonym breached the Option and Purchase Agreement, is one that will have a chilling effect upon authors wishing to exercise their right to write anonymously. Based on the foregoing, the Authors Guild respectfully requests that this Court reverse its decision on Plaintiff's claim for breach of contract.

INTEREST OF AMICUS AUTHORS GUILD, INC.
The Authors Guild, Inc. founded in 1912, is a national non-profit association of more than 8,200 professional, published writers of all genres. The Guild counts historians, biographers, academicians, journalists and other writers of nonfiction and fiction as members. The Authors Guild works to promote the rights and professional interests of authors in various areas, including copyright, freedom of expression and taxation. In the area of copyright, the Guild has fought to procure satisfactory domestic and international copyright protection and to secure fair payment of royalties, license fees and non-monetary compensation for authors' work. Guild attorneys annually help hundreds of authors negotiate and enforce their publishing contracts. Authors Guild members earn their livelihoods through their writing. Their work covers important issues in history, biography, science, politics, medicine, business and other areas; they are frequent contributors to the most influential and well-respected publications in every field.
The Authors Guild is extremely concerned about the implications of the decision below. The district court's monetary judgment against Laura Albert suggests that the terms of literary contracts and motion picture option agreements signed by authors can be expanded far beyond their explicit terms and can be the basis for claims of fraud and breach of contract against authors. The claims in this case are based on a total misinterpretation of standard clauses in both book contracts and motion picture purchase agreements.
Laura Albert wrote the book "Sarah" under a pseudonym, a time-honored literary device and one sanctioned by the United States Copyright Law. Yet because her real name was not used in the motion picture option and purchase agreement, Antidote International Films, Inc. ("Antidote") brought actions for fraud and breach of contract against her on the ground that the listed name was not the true "sole author" of the work. And the district court endorsed those claims by its judgment below. Antidote in fact received all the necessary rights it sought in order to prepare a motion picture version of "Sarah." Yet because it then asked for and did not receive more than it had bargained for -- namely the life story rights of the author -- it commenced this far-fetched action that threatens the rights of all authors who sign literary purchase agreements under a pseudonym. For these reasons the Author's Guild is submitting this amicus brief.

SUMMARY OF ARGUMENT
In the Nineteenth Century, the works of women authors were frowned upon in England and elsewhere around the world. The three Bronte sisters, Emily Bronte, Anne Bronte and Charlotte Bronte initially wrote their books under the names of Ellis Bell, Acton Bell and Currer Bell. Charlotte Bronte explained the reasons for this decision: Averse to personal publicity, we veiled our own names under those of Currer, Ellis, and Acton Bell; the ambiguous choice being dictated by a sort of conscientious scruple at assuming Christian names positively masculine, while we did not like to declare ourselves women, because -- without at that time suspecting that our mode of writing and thinking was not what is called "feminine" -- we had a vague impression that authoresses are liable to be looked on with prejudice; we had noticed how critics sometimes use for their chastisement the weapon of personality, and for their reward, a flattery, which is not true praise.
Mary Ann Evans wrote her great books ("Middlemarch," "Daniel Deronda," "Silas Marner") under the name "George Eliot," largely because female authors were not considered serious literary figures at the time, for the reasons stated by Charlotte Bronte. Her companion for over twenty years, George Henry Lewes, initially negotiated on her behalf with publishers, claiming that the true author wished to remain anonymous. If he had, on some occasions, pretended to be the "George Eliot" who actually wrote the book, but the contracts were signed by the real author, no publisher could have had the basis for any complaint. The publisher received the necessary rights and could publish the works.
Exactly the same situation is present here. Antidote received all the rights it needed to prepare a motion picture. Underdogs, Inc (Albert's personal services corporation) was the "owner" of the necessary rights. It possessed the copyright and motion picture rights which it could and did convey to the motion picture production company. There was no breach of any of the terms of the contract. The decision below should be reversed and the complaint should be dismissed.

ARGUMENT
THERE WAS NO BREACH OF ANY OF THE TERMS OF THE OPTION AND PURCHASE AGREEMENT
It was Antidote's theory that defendants had committed a breach of a number of the clauses of that contract. In particular it claimed that there was a breach of the "sole author" clause of the option and purchase agreement signed by Underdogs. That provision reads:
9. Representations and Warranties. Owner hereby represents and warrants that:
(a) JT LeRoy is the sole author of the work and Owner is the sole and exclusive owner and proprietor throughout the universe of the Work and
any and all Granted Rights granted to Producer herein;
(b) Owner has the full right, power and authority to enter into this Agreement and grant Producer all the Granted Rights herein provided for;
(c) The Work is not in the public domain in any country in the world which provides for a copyright or similar protection;
(d) The Work and the Property is wholly original with Owner and no incident therein or part thereof is taken from, based upon, or adapted from any other literary material, dramatic work or motion picture (other than material in the public domain) and exploitation of the Granted Rights, the full use of the Work or any part thereof, and exploitation of the Granted Rights as herein granted will not to best of Owner's knowledge in any way violate or infringe upon any copyright belonging to any Person or constitute a libel or defamation of, or an invasion of the rights of privacy of or otherwise violate or infringe upon any other right or rights whatsoever of any Person;
(e) To the best of Owner's knowledge, there is no outstanding claim or litigation pending against the title or ownership of the Work and/or the Property or any part thereof or in the rights therein;
(f) Owner has not assigned or licensed to any other Person or in any manner encumbered or hypothecated any of the Granted Rights herein granted to Producer with respect to the Work or the Property nor has Owner agreed to do so.
(g) Owner acknowledges and agrees that the Work may be used in any manner and by any and all means, whether now known or unknown, and either factually or with such fictionalization, portrayal, action, dialogue, impersonation, simulation and/or imitation or other modification as Producer, its successors and/or assigns, determine in Producer's sole discretion.
Plaintiff asserts that the there was a "false representation and warranty as to the author and ownership of the novel Sarah." (Compl. Par. 117) and the court allowed the jury to consider this argument on the breach of contract claim.
However there was nothing false in JT LeRoy (Laura Albert) making the representations cited. There was no "false representation" involved in "JT LeRoy" saying she was the "sole" author. She was the "sole" author.
The warranties and representations clause of the contract is corresponds to the warranties clause of every option and literary purchase agreement involving motion pictures. It is also typical of the representation and warranty clause of every book publishing contract or of any music publishing or recording contract.
The purpose of the clause is to insure that the purchaser (movie production company, book publisher, record company) has acquired all the necessary rights to prepare a motion picture, book or record, that there is no defect in the author's title and that there is no other co-author who could convey rights to a competitor. This purpose is explained in one of the leading treatises on entertainment contracts. See 1 Entertainment Industry Contracts: Negotiating and Drafting Guide, "Motion Pictures Contracts," by Jay Kenoff, Form 3-2, p. 3-44, (LexisNexis, 2006). Mr. Kenoff explains, in discussing the terms of an option agreement, similar to those involved here:
In acquiring a literary property, the purchaser must be assured that it is acquiring all the rights necessary for a picture to be based upon the literary property and that it is not subjecting itself to any third party claims. Accordingly, the purchaser wants to receive adequate assurances that the owner has outright ownership of the literary property if the owner did not create it, and that the owner has a valid claim of title from the author or that the literary property was the original creation of the owner.
Mr. Kenoff explains the same principle in discussion the terms of a final Literary Purchase Agreement:
The purchaser [of the literary rights] will require various representations and warranties from the owner concerning the source, chain of title and ownership of the property. Such representations and warranties provide some security to the purchaser concerning the rights being acquired, because the purchaser wants to obtain the property without potential suits or claims. Id, Form 4-1, p. 4-17 With respect to the "sole" ownership language, Mr. Kenoff has the following comments:
An essential representation and warranty from the owner is that the owner is the sole and exclusive proprietor of the property. Without this representation and warranty, the purchaser may be acquiring a claim from the real owner or a co-owner or possibly even nothing. In other words, the purpose of the "sole author" clause is not to assure the purchaser that the listed name of the author is or is not a pseudonym or pen name. Rather the purpose is to assure the purchaser that it has acquired all the necessary rights to be able to make the film, and no third party can come forward to claim any rights in the property.
But that latter representation is absolutely true in this case. There is no doubt that JT LeRoy/Laura Albert is the author of the work. There is no doubt that she created the work, owns it and is in a position to convey all the film rights in the work. There is no third party that can claim any rights in the work that would interfere with the purchaser's right to make the film. That is all that the representation and warranties clause is designed to cover, as noted above.
If an erroneous name is used to sign a contract but the person controlling the rights does in fact sign the contract, that person is bound by its terms. See e.g. In re Excel Stores, Inc., 341 F.2d 961 (2d Cir. 1965)(corporate officer signed contract under erroneous name of company; company still bound by agreement since error considered minor). That has been the rule in common law jurisdictions for centuries. See David v. Williamsburgh City Fire Insurance Co. 38 Sickels 265 (N.Y. 1880):
And DALY, Ch. J., in the Petition of John Snook (2 Hilton, 566), after a learned and exhaustive examination of the whole subject of names, said: "There are numerous cases, both in this country and in England, holding that where a man enters into a contract or does any act in a particular name, he may be sued by the name that he used, whatever his true name may be, and generally that wherever a man has done an act in a particular name, or where he makes a grant, it may always be shown in support of the validity of the act, that he was known by that name at or about the time when the act was done, though he may have been baptized or previously known by a different name. All that the law looks to is the identity of the individual, and when that is clearly established the act will be binding upon him and upon others." Surely if a mere mark or figures or initials will bind one who uses them in the execution of a contract or conveyance with intent to be bound, he will, for the same reasons, be bound if he uses certain letters of a fictitious name with the same intent. Henry J. David assumed the name of Marx David, and executed the papers in that name, intending that they should be effectual to vest title in the plaintiff, and I know of no rule of law which requires that intent to fail.
If Laura Albert was bound by the contract even if another name was used (as she was, as plaintiff readily agrees), that must mean that she necessarily conveyed the rights and made the representations contained in the contract. But that must mean that she was bound as the real author to convey all the necessary rights in the contract. That she did and plaintiff has therefore suffered no wrong since it obtained what it had bargained for.
To interpret the clause as requiring that only the author's true name must appear in a contract or there is some kind of breach is to ignore the fact that many authors have written under a pseudonym over the centuries. Aside from the Bronte's and George Eliot, we have Lewis Carroll (Charles Dodgson), Mark Twain (Samuel L. Clemens) George Orwell (Eric Blair) and many others. The Copyright Law explicitly allows pseudonymous works to be registered for copyright, 17 U.S.C. §
302(c).
There are many cases which acknowledge the legality and legitimacy of pen names or pseudonymous names by an author. The Supreme Court upheld the use of anonymous names in the electoral process in McIntyre v. Ohio Elections Com'n, 514 U.S. 334 (1995). In describing that case, a federal court noted the protection afforded anonymous literature in all its phases.
Then came the Supreme Court's decision in McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). In McIntyre, a pamphleteer challenged a fine imposed by the Ohio Elections Commission for distributing anonymous leaflets opposing a proposed school tax. Noting early on in the opinion that there was "no suggestion that the text of her message was false, misleading or libelous," Justice Stevens analyzed the right of a person to remainanonymous. The court found that historically "anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind" quoting Talley v. California, 362 U.S. 60, 80 S.Ct. 536 at 538, 4 L.Ed.2d 559 (1960)
In re Baxter, 2001 WL 34806203 (W.D. La. December 20, 2001) *9.
In Roddy Eden v. Clemens, 202 Misc. 261, 264, 108 N.Y.S. 597, 600 (Sup. Ct. N.Y. Cty 1952), the Court noted:
It is not an instance of writing under a nom de plume. In such a case, regardless of the pen name employed by the writer, he is, in truth, the real author and is not exploiting the ability, talent and authorship of another, palming it off under the false pretense that itis his own. In the former instance, it is, however, the true and real author, but merely employing a pseudonym, which is permissible in the field of literature and recognized in law. Clemens v. Bedford, Clark & Co., C.C., 14 F. 728, 729. (emphasis added)
The Clemens case cited involved another author using the name "Mark Twain" on a book that Samuel Clemens did not write. The Court found:
In other words, no person has the right to hold another out to the world as the author of literary matter which he never wrote; and the same rule would undoubtedly apply in favor of a person known to the public under a nom de plume, because no one has the right, either expressly or by implication, falsely or untruly to charge another with the composition or authorship of a literary production which he did not write. 14 Fed. at 731.
Thus Laura Albert could validly use a pseudonym in connection with the movie contract so long as the she (or a company she controlled) in fact conveyed the necessary rights.
Plaintiff also claims that defendants violated Paragraph 8(a) of the agreement which granted Plaintiff the right to "utilize Owner's name, approved likeness, and approved biography in connection with the Work…and advertising and publicity relating thereto; provided, however, that Owner shall have the right to approve…any likeness and biography used in this connection."
The purpose of the name and likeness provision is to avoid any right to publicity or right to privacy claims brought by the underlying author. Without this provision, the author might object to any use of her name in any advertising or promotion of the work.
Many courts have recognized that a use outside the scope of the permission granted in a contract not only constitutes breach of contract, but also gives rise to an action by the licensor for invasion of privacy or infringement of the right of publicity. See Dzurenko v. Jordache, Inc., 59 N.Y.2d 788, 464 N.Y.S.2d 730, 451 N.E.2d 477 (1983) ("For a use beyond the granted consent [plaintiff] has an action under [New York privacy and publicity statute] ... and is not limited to an action sounding in contract"); Leavy v. Cooney, 214 Cal.App.2d 496, 501, 29 Cal.Rptr. 580 (1963) (use of outside agreement constitutes both breach of contract and tortious invasion of privacy); Zim v. Western Pub. Co., 573 F.2d 1318, 1327 (5th Cir.1978) (use of author's name outside of use permitted in publishing contract is tortious, interpreting Florida law); Donoghue v. IBC USA (Publications) Inc., 70 F.3d 206 (1st Cir.1995) (use in advertisingthat is not authorized by the license between the parties constitutes violation of Massachusetts' privacy/publicity statute); Seifer v. PHE, Inc., 196 F.Supp.2d 622, 631 (S.D.Ohio 2002) (grant of sub-license was not authorized by the license and triggered a claim for infringement). See also Rivell v. Private Health Care Systems, Inc., 520 F.3d 1308 (11th Cir. 2008)(use of doctors' names to advertise health care systems constitutes misappropriation of identity).
Under these circumstances, Antidote suffered no injury or damages. To the extent it claims that the corporate veil of Underdogs should be pierced or the contract reformed to include these obligations imposed on the author, there is nothing in the record to indicate that it would not have had such the right to use either the pseudonym or the real name of the author in any promotion or advertising of the final film. See e.g., Zim v. Western Publishing, Inc. supra, 573 F.2d at 1327: "Western's right under the contract to publish the book in these circumstances operates as an authorization sufficient to privilege Western's use of Zim's name as a matter of tort law as well."

CONCLUSION
The Authors Guild respectfully submits that the decision of the United States District Court for the Southern District of New York with regard to Plaintiff's breach of contract claim, was not only inconsistent with the evidence presented at trial, but also will have negative repercussions extending into the future for many authors. The right to free speech, and the right to speak and write anonymously are rights protected by our Constitution, and the district court's decision which holds that Laura Albert's use of pseudonym breached the Option and Purchase Agreement, is one that will have a chilling effect upon authors wishing to exercise their right to write anonymously. Based on the foregoing, the Authors Guild respectfully requests that this Court reverse its decision on Plaintiff's claim for breach of contract.

Dated: New York, New York
August 13, 2008
Respectfully submitted,
NESENOFF & MILTENBERG, LLP