Chris Kyle, author of the runaway best-seller American Sniper, was a military hero who killed 160 people during his four tours of duty in Iraq and is now the subject of an Oscar-nominated blockbuster. He was also a fabulist. Before his tragic murder in 2013, Kyle told a number of extremely dubious stories.
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But it wasn’t these fantastical tales of vigilante justice that got Kyle into legal trouble. It was another, much less exciting story—one that wasn’t just unverifiable, but verifiably false. That tale, conveyed in a mere three pages of American Sniper, has put Kyle’s widow on the hook for $1.845 million in damages. And it may soon make Kyle’s publishers wish they approached the veteran’s claims with great deal of skepticism.
Kyle’s legal difficulties emerged from a subchapter of American Sniper titled “Punching Out Scruff Face.” In it, Kyle describes beating up a former Navy SEAL (“Scruff Face”) after the SEAL claims American soldiers deserved to die in Iraq. Early drafts of the book identified the SEAL as Jesse Ventura, former governor of Minnesota and famed professional wrestler, but Kyle’s publishers removed the name for fear of a lawsuit. Nonetheless, in a radio interview following the book’s release, Kyle admitted that “Scruff Face” was Ventura, and he repeated the claim soon after on The O’Reilly Factor.American Sniper shot to the top of Amazon’s best-seller list, becoming a smash hit for its publisher, HarperCollins, selling more than 1.5 million copies by July of 2014.
There was, however, a problem: The Ventura story wasn’t true, and Ventura meant to prove it. So he took Kyle to trial, suing him—and, after he died, his estate—for defamation and unjust enrichment. In the United States, defamation cases are extremely difficult to win, thanks to the First Amendment. When allegedly defamatory statements pertain to a public figure, the plaintiff mustn’t just prove those statements were false. He has to prove the defendant made those statements with “actual malice”—that is, knowledge that they were false—or with “reckless disregard” for their falsity. Very few defamation plaintiffs can make it over the high bar of actual malice.
Ventura made it. On July 29, 2014, a federal jury returned from six days of deliberations to award Ventura $1.845 million in damages—specifically, $500,000 for defamation and about $1.345 million for unjust enrichment. (In other words, Kyle unjustly profited from defaming Ventura, and so his estate must give Ventura some of that money.)
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For the Kyle family, then, the legal tribulations surrounding American Sniper are probably wrapping up, and Taya Kyle will likely pay some damages but walk away from the affair with many millions of dollars left to her name. (HarperCollins’ libel insurance, in fact, will cover her defamation damages.) But for Kyle’s publisher, HarperCollins, the nightmare is just beginning. Several months after the verdict against the Kyle estate, Ventura brought another lawsuit for unjust enrichment, this time against HarperCollins.
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During the first trial, Ventura’s attorneys uncovered records of HarperCollins’ negligence in fact-checking Kyle’s book, as well as evidence that HarperCollins specifically touted the Ventura story to drum up publicity. Kyle’s ghostwriters spoke with only one person who claimed to have witnessed the fight, a friend of Kyle’s who told a different version of the story that lacked Ventura’s offensive remarks. No one from HarperCollins contacted Ventura or his representatives to verify the story. And though Kyle claimed Ventura appeared at a SEAL graduation afterward with a black eye—where “everybody was laughing” and asking “Who beat the shit out of him?”—HarperCollins never asked a member of the graduating class whether they saw Ventura’s injury. (A photograph from the event shows a clear image of Ventura—with no black eye.)
It gets worse for HarperCollins. Despite the tenuous source of the Ventura story, HarperCollins quickly saw it as a publicity gold mine. After Kyle identified “Scruff Face” as Ventura in a radio interview on The Opie & Anthony Show, HarperCollins editor Peter Hubbard wrote in an email that the publicity from the story was “priceless.” HarperCollins publicist Sharon Rosenblum described the Ventura kerfuffle as “hot hot hot,” immediately arranging for Kyle to retell the tale on The O’Reilly Factor. Sales of American Sniper—which, up to that point, were fairly modest—spiked dramatically, apparently in conjunction with interest in the Ventura story. After theO’Reilly appearance, Ventura publicly denied Kyle’s accusations. Yet Rosenblum arranged for Kyle to tell the story again on The Opie & Anthony Show, and HarperCollins printed several new editions of the book that still featured the “Scruff Face” section. (It was finally removed after Ventura won his suit.)
Link to the rest at Salon and thanks to Matthew for the tip.
A few points:
- Under standard Big Publishing contracts, Kyle would be responsible for paying any and all expenses of HarperCollins in the Ventura suit, including any damages HC pays to Ventura.
- If the article is true, it appears that Kyle’s attorney had HC add a provision to the contract that named Kyle as an additional insured under HC’s publisher’s liability insurance policy. This is always a good idea, but something most publishers won’t do without being asked.
- Even with the liability insurance policy in place, most such policies include a large deductible – $500,000 – $1,000,000 deductibles are typical. Under a standard Big Publishing contract, Kyle would be responsible for paying the deductible.
- Boilerplate in most Big Publishing contracts gives the publisher the right to have an attorney conduct a pre-publication legal review. The author is required to change anything the lawyer finds problematical. PG hasn’t read whether or not such a review was conducted in this case. Given that the book referenced living persons and their behavior, it would be an extraordinarily bad decision for HC not to have conducted such a review. If anyone sees a news account that mentions whether a legal review was conducted or not, please send a link to PG via the Contact Page.
- The publishing contract provisions PG mentioned are typically contained in a section called something like Warranties or Warranties and Indemnities. Most authors tend to breeze through such provisions (in part because they’re really boring), but this story demonstrates that every part of a publishing contract has consequences.
- In PG’s prodigiously humble opinion, the warranties required of authors in most publishing contracts are among the most unfair provisions in those contracts.