Recent reports indicate that J.K. Rowling took what she has previously called the less “brave” route by publishing her second post-Harry Potter novel, The Cuckoo’s Calling, under a completely different identity: Robert Galbraith, ex-military officer.
The author’s biography for The Cuckoo’s Calling reveals that “Robert Galbraith” is a pseudonym, but such a disclaimer does not give the author and the publisher a free pass to make up “facts” about the author’s life. The biography states:
After several years with the Royal Military Police, Robert Galbraith was attached to the SIB (Special Investigative Branch), the plain-clothes branch of the RMP. He left the military in 2003 and has been working since then in the civilian security industry. The idea for Cormoran Strike grew directly out of his own experiences and those of his military friends who returned to the civilian world. ‘Robert Galbraith’ is a pseudonym. (emphasis added).
The only truthful sentence in that entire biography is the last one: “‘Robert Galbraith’ is a pseudonym.” Rowling and her publisher, Little, Brown, and Company, seem to think that the word “pseudonym” encompasses an entirely fictitious life and not just a fictitious name adopted by a real author.
Obviously, J.K. Rowling couldn’t have used her real biography under an assumed name, but she also did not have to be so adamant — and specific — about her fake identity’s military experience, and she certainly didn’t need to falsely assert that the novel was based on real events by claiming “The idea for Cormoran Strike grew directly out of [Galbraith’s] own experiences.” As far as I know, Rowling has no direct military experience from which “the idea” could have “[grown] directly.”
We don’t expect a fictional novel to be real between the covers, but we do expect the text on the front and back to reflect the truth about the book’s origin. There are several factors readers weigh when deciding whether to purchase a novel, and the author’s biography is often one of them. I think we can all agree that authors shouldn’t masquerade as ex-military officers to sell books, even someone as beloved as the author behind Harry Potter.
While Rowling’s deception isn’t as extensive as James Frey’s exaggerated “memoir” A Million Little Pieces, Rowling published under more than a false name; she concocted a false identity that might have encouraged some readers to purchase the book when they otherwise might have chosen something written by an actual military officer (and it isn’t enough to say the majority probably would’ve bought it anyway just because the author turned out to be J.K. Rowling; this is an issue of reliance on the individual level). I’m left wondering whether Rowling’s false biography is consumer fraud, possibly violating any number of consumer protection laws in the United States (where this novel has been sold).
Various states have their own consumer protection laws, but, to keep it simple, let’s just consider the federal Lanham Act. To establish a false advertising claim under the Lanham Act, a plaintiff must prove:
- 1) that the defendant has made false or misleading statements as to his own product [or another’s];
- 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience;
- 3) that the deception is material in that it is likely to influence purchasing decisions;
- 4) that the advertised goods traveled in interstate commerce; and
- 5) that there is a likelihood of injury to the plaintiff in terms of declining sales [if competitor], loss of good will, etc.
Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 248 (3d Cir. 2011). The Galbraith biography was obviously false or misleading. Did it also create “a tendency to deceive a substantial portion of the intended audience” that was “likely to influence purchasing decisions”? I think there’s enough there for a jury to consider the issue: after all, it seems the whole purpose for the fake biography loaded with specific fake details was to deceive the intended audience into buying the book. Why else would they do it?
Regardless of whether Rowling and her publisher will be (or should be) held liable, it’s deeply unsettling that the publishing industry thinks it’s okay to mislead readers so blatantly. As a former Headmaster of Hogwarts once said, “the truth is generally preferable to lies (The Goblet of Fire, page 722).”