Publishers are precise about the genre of the works they agree to publish. What is being licensed (what the author/licensor is granting) is spelled out in an opening provision of the contract and is a material term. How does this apply to memoir?

We think of a memoir as an exposition of the author’s life experiences. What difference does it make if the represented facts stray from literal truth or are outright lies? James Frey, author of A Million Little Pieces, after being exposed for parlaying false facts said that he stood “by the book as being the essential truth of my life.” However, a memoir is supposed to be an entirely truthful representation. It is not a vehicle for fictional experiences. Representing the “essential truth” of the author’s life experiences by misrepresenting literal facts is unacceptable to publishers and readers. The antidote to Frey’s combination of factual truth and fictitious episodes is a narrative that uses metaphor to convey emotional truth but does not contain “false facts.”

Representation and warranty provisions are standard in publishing contracts. Over the past few years the traditional focus on defamation, invasion of privacy and copyright infringement has been expanded to include a new representation and warranty relating to the truth of the narrative. The intention is to assure the publisher that there are no materially false statements that may expose the publisher to liability and to restrain the author from misrepresenting herself.

A major publisher’s contract requires the author to:

[Represent and warrant that] the Work does not contain any statements about the Author or his or her background or life story that are materially inaccurate and neither the Author nor any representative of the Author has materially misrepresented the Work or the Author’s background, life story or credentials to the Publisher.

This provision requires the author to affirm that the work presented as a memoir is what it purports to be. The publisher will not offer a book to the public as a memoir if it belongs in another genre. The author’s promise to be truthful assures the publisher that it will not be legally or commercially damaged by making a misrepresentation to purchasers and readers of the work.

We can think of memoir and truth as a continuum ranging from factual accuracy through metaphor and emotional truth to falsity. By calling her work a memoir the author is representing to the publisher and making a statement to the reader that she is telling the truth about herself. Falsity, which includes distortion and exaggeration, is incompatible with the goals of memoir and, as with Frey, may have serious legal consequences.