Libel in Fiction

Libel in Fiction

By Lloyd Jassin

Q: My main character is loosely based on a real person. I mean, that's who inspired me. I never identify him by name (he's my ex-friend), and I've made up 90% of the events in the book. After the book becomes successful, I'm worried he'll come back and try to take a stake in the millions. What can I do to prevent this? - GWB

A:  While such lawsuits are rare, you can be sued for defamation if your novel falsely depicts your former friend in an unfavorable light. 

 

Libel is a false and defamatory statement of fact communicated to a third party about an identifiable living person that damages their reputation. While it's logical to assume that a work of fiction that describes a world that doesn't exist is incapable of defaming a real person, that's not the law.     

 

For a novel or other fictional work to be actionable, readers must believe the allegedly defamatory statements are actually about the plaintiff. The description of the fictional character must be so closely aligned with a real person that someone who knows that person would have no difficulty linking the two. And, there must be an implicit belief that what the author wrote – notwithstanding disclaimers – was true. What about a fictionalized autobiography? If a character (i) is depicted in a defamatory manner, (ii) is recognizable, and (iii) a reasonable reader can understand the defamatory statement to refer to that person, there's no veil of fiction to hide behind for purposes of libel law.   

Happily, for writers (and The Weekly World News), libel in fiction claims generally do not survive a motion for summary judgment. That's because courts recognize several defenses and privileges to defamation claims, including substantial truth and statements of opinion. Another reason many defamation lawsuits fail is that the plaintiff fails to make their case. Under U.S. defamation law, the plaintiff bears the burden of proving the defendant acted negligently.

Despite the breathing space the First Amendment affords writers, not all libel-in-fiction lawsuits are resolved favorably for the author,  their publisher, or producer partners. For example, in 2009, in the Red Hat Club case, the plaintiff was awarded $100,000 in damages by a Georgia court for a fictional character modeled on her. The "original" claimed that her fictional double, falsely depicted in the bestselling novel as a sexually promiscuous alcoholic who drank on the job, defamed her. From a libel defense perspective, this drawn-from-life portrayal failed, in part, because the author (and former friend) included personal characteristics that made the plaintiff recognizable and mixed them with other traits that were false and defamatory but still believable.

Now back to your question. Are you sure you never identify the real person who inspired your main character? Can they be identified from their ethnicity, physical appearance, employment history, or other details found in your book? Is your friend a public official or public figure? If so, they have another hurdle to jump. Unless he can prove by clear and convincing evidence that what you wrote was deliberately or recklessly false, there's a good chance - but no guarantee - you'll be excused from liability under what's known as the "Actual Malice Standard."

When Fiction & Reality Collide

Merely changing the name of your friend isn't enough. You might consider transforming him beyond recognition. Why? Courts consider plausibility. A broadly drawn caricature of your friend, which is difficult to reconcile with your ex-friend, can effectively stave off a libel lawsuit. For example, Kim Pring, a former Ms. Wyoming, sued Penthouse over an article that described Ms. Pring's ability to cause men to levitate by performing oral sex. Initially, the Federal District Court found for Miss Pring, awarding her $26.5 million in damages. However, the Court of Appeals reversed the decision on appeal, holding that no reasonable person could believe what was described were actual facts. Be outrageous. Libel will not be found if the reader accepts the novel as pure fiction. Parody – if done correctly, can take the chill out of free speech. [Note the italicized "if"]. If done improperly and the hypothetical reasonable reader thinks your failed parody conveys actual facts, the First Amendment may not be available to you. "Obvious cues" like levitation or time travel can help telegraph what is First Amendment-protected fiction from fact. When in doubt, have the book vetted by a publishing attorney.        
     

Here's a run-down of a few techniques that can minimize the chance of getting sued for libel in fiction: (a) use disclaimers (more about that later); (b) disassociate the doppelgänger from their real-life counterpart by writing composite characters; (c) depict but do not disparage, and (d) wait for the real-life person to die before publishing your fiction. Under U.S. libel law, if the original is dead, the estate cannot sue for libel (unless the suit was begun while the deceased was still alive). If (d) gives you an additional reason to outlive your literary prey, consider it my gift to you. And remember, he who laughs last laughs best. About option (d), revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

Disclaimers, while helpful, are, by nature, self-serving. While a disclaimer cannot insulate you from a libel suit, it may support the defense that identification with the real person in your work is unreasonable. The words "A Novel" in the subtitle of a book are considered by some to be the best form of disclaimer. In addition, a full disclaimer should appear on the reverse title page of your novel or be skillfully integrated into the introduction or preface of your book. Closing credits in a motion picture might read: 

"Certain characters, characterizations, incidents, locations and dialogue were fictionalized or invented for purposes of dramatization . . . [W]ith respect to such fictionalization or invention, any similarity to the name or to the actual character or history of any person . . . or any product or entity or actual incident, is entirely for dramatic purposes and not intended to reflect an actual character, history, product or entity." [Closing credits to Martin Scorsese's The Wolf of Wall Street.]

Change the physical characteristics of your main character enough to disguise their identity. The risk of being sued is reduced if your characters are likable and honest rather than vicious unscrupulous miscreants. While it's tempting to retaliate against those who have injured us in print, if a character drawn from life isn't likable and you can't support that depiction with sufficient evidence, fictionalization or rewriting becomes essential.    

Create your own Frankenstein monster - a single character stitched together from a combination of personalities, physical traits, and biographical details of others. A composite character provides evidence that no real person was portrayed - or defamed. If the fictional other is not "of or concerning" an identifiable person, you have a viable defense to libel.    

I would be remiss if I did not bring up three other legal threats all writers face. First, defamation lawsuits can be triggered by misidentification. The law of defamation is not concerned with who you intended to target but who gets struck by your barbed arrow. Unintentional defamation is actionable. "Woops!" is not a viable defense. From a legal perspective, where the arrow lands - not where you intended it to fall - is what matters. Lawyers who vet, and writers who write, need to watch out for same-named individuals who are falsely but believably misidentified. 

While the publication of truthful information is generally considered a complete defense to libel, private individuals can still sue for highly offensive or embarrassing truths. So, if your book goes too far and reveals intimate areas of a person's life – intimate matters concerning their sexuality, family life, medical procedures, and mental (in)capacity – you may invite a right of privacy claim. Are there defenses? Yes, but that's beyond the scope of this post.

The right of publicity involves the unauthorized use of a person's name or likeness for commercial gain. It is related to the right of privacy. Fortunately for novelists, courts historically construe publicity rights narrowly due to free speech considerations. But that's the subject of another Q&A.

If you feel uncomfortable with the legal minefield of libel, right of privacy,  and right of publicity law, consult a media law or publishing attorney. They will review your manuscript for potential liability and suggest ways to mitigate or avoid many risks associated with writing about real people and actual events.


Disclaimer: This article discusses legal issues of general interest and is not designed to give specific legal advice concerning specific circumstances. Libel law is fact-specific, and national consistency is lacking. Each state applies that state's law within its own borders provided it does not conflict with  Constitutional law as interpreted by the Supreme Court of the United States. Many countries do not recognize the protections the U.S. gives authors and publishers. We strongly advise you to obtain professional legal advice before acting upon any of the information in this blog post.

(c) 2016. Updated 2020.

Resources
Smith v. Stewart (Red Hat Club Case)
Pring v. Penthouse
Bindrim v. Mitchell (case ended badly for the author) 
Carter-Clark v. Random House (Court of Appeals)
Carter-Clark v. Random House (Supreme Court)


Libel in Fiction Quotes

"I don't get hurt or bleed; hair doesn't muss; it's one of the advantages of being imaginary." 
    - Ted Baxter in The Purple Rose of Cairo

"All literature is gossip." - Truman Capote

"Novelists are inspired gossips." 
    - Margaret Drabble

"But we are the sum of all the moments of our lives---all that is ours is in them: we cannot escape or conceal it. If the writer has used the clay of life to make his book, he has only used what all men must, what none can keep from using. Fiction is not fact, but fiction is fact selected and understood, fiction is fact arranged and charged with purpose."
    - Thomas Wolfe's Preface to Look Homeward Angel

The Legal Consequences of Using Real People in Fiction

When Fiction & Reality Collide

Q: My main character is loosely based on a real person. I mean, that's who inspired me. I never identify him by name (he's my ex-friend) and I've made up 90% of the events that happen in the book. I'm worried after the book becomes successful, that he'll come back and try to take a stake in the millions.  What can I do to prevent this?  - GWB

A:  So you ask, “How do you discourage your friend from becoming a plaintiff after reading your novel and fictional portrayal of him?”

A basic understanding of libel law Libel is helpful.  Libel is defined as a false statement of fact “of and concerning” a living person that damages their reputation.  If you were to say that fiction, which describes a world that doesn't actually exist, was incapable of defaming a real person, it would be logical, but wrong. 

Happily for novelists (and The Weekly World News), when the model upon which a fictional character is based sues, generally, their claim doesn't get not survive summary judgment.  For a novel, or other fictional work, to be actionable, its detail must be convincing. The description of the fictional character must be so closely aligned with a real person that someone who knows that person would have no difficulty linking the two.  And, there must be an implicit belief that what the author said – notwithstanding her denials – was true.  What about a fictionalized autobiography?  If your memoir is fictionalized, but you don't make that clear to readers, there's no veil of fiction to hide behind for purposes of libel law. 

Despite the breathing space the First Amendment affords writers, not all libel-in-fiction lawsuits are resolved in favor of the author or their publisher partner.  For example, in 2009, in the “Red Hat Club" case, the plaintiff was awarded $100,000 in damages by a Georgia court for a fictional portrayal modeled on her.  The “original” claimed that her fictional double, falsely depicted in the bestselling novel as a sexually promiscuous alcoholic who drank on the job, defamed her.  From a libel defense perspective, this drawn-from-life portrayal failed, in part, because the author included personal characteristics that made the plaintiff recognizable, and mixed them with other traits that were false and defamatory, but, still believable.

Now back to your question.  Are you sure you never identify the real person who inspired your main character?  Aside from their name, can they be identified from their ethnicity, appearance, historical or other details found in your book, so that someone who knew them (or knew of them), could identify them and assume that the statements in your book were truthful?  While you may not identify your ex-friend by name, if you haven’t completely disguised the person, the likelihood of a successful claim for falsely portraying them increases.  Is your friend a public official or public figure?  If so, they have another hurdle to jump.  Unless he can prove by clear and convincing evidence that what you wrote was deliberately or recklessly false, there's a good chance -- but no guarantee -- you'll be excused from liability under what's known as the "Actual Malice Standard."

Merely changing the name of your friend isn’t enough.  You might consider transforming him beyond recognition.  Why?  Courts consider plausibility.  A broadly drawn caricature of your friend, which is difficult to reconcile with your ex-friend, can be an effective device to stave off a libel lawsuit. For example, Kim Pring, a former Ms. Wyoming, sued Penthouse over an article that described Ms. Pring’s ability to cause men to levitate by performing oral sex.  Initially, the Federal District Court found for Miss Pring, awarding her $26.5 million in damages.  On appeal, however, the Court of Appeals reversed the decision; holding that no reasonable person could believe that was described was actual facts.  Be outrageous.  If the reader accepts the novel as pure fiction, no libel will be found.  Parody – if done properly can take the chill out of free speech.  [Note the italicized “if”].   If done improperly, and the hypothetical reasonable reader thinks your failed parody conveys actual facts, the First Amendment may not be available to you.  "Obvious cues," like levitation or time travel can help telegraph what is First Amendment protected fiction from fact.   When it doubt, have the book vetted by a publishing attorney.        
     

Here’s a run-down of a few techniques that can minimize the chance of getting sued for libel in fiction:   (a) disclaim; (b) disassociate the doppelgänger from its real-life counterpart; (c) depict but do not disparage; and/or (d) as explained later, wait for the real-life person to die before publishing your fiction.  With regard to option (d), revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

Disclaimers, while helpful, are by nature, self-serving.  While a disclaimer cannot insulate you or your publisher from a libel suit, it may support the defense that identification with the real person in your novel is unreasonable.   The words “A Novel” in the subtitle of your book is considered by some attorneys to be the best form of disclaimer.  In addition, a full disclaimer should appear on the reverse title page of your novel, or skillfully integrated into the introduction or preface of your book. 

Change the physical characteristics of your main character enough to disguise his identity.  The risk of being sued is further reduced if your main character is treated as a likable character rather than a vicious and unscrupulous evildoer.  While it is very tempting to retaliate against those who have injured us, if a character drawn from life isn’t likable, it is even more important to disguise their  identity.   

Create a Frankenstein monster.  Combine or clone several people’s physical traits and biographical facts, so no single person's actual DNA appears in your book.   If the work is not "of or concerning" an identifiable person, you have a complete defense to a libel lawsuit based on fictionalization.  Speaking of Frankenstein, the dead cannot be defamed.  As such, they make terrible plaintiffs -- but excellent targets for vengeful authors.  Why?  Under U.S. libel law, if the original is dead, s/he can't sue for libel.  If this last suggestion gives you an additional  reason to outlive your literary prey, consider it my gift to you.  And remember, he who laughs last, laughs best.  

 I would be remiss if I did not bring up three other legal horrors.  First, the law of defamation is not concerned with who you intended to target, but who gets struck by your barbed arrow.  What that means is unintentional defamation is actionable.  "Woops!"  is not a defense to libel.   If you shoot an arrow in the air, from a legal perspective, where the  arrow lands, not where you intended it to land, is what matters.  Lawyers who vet, and writers who write, need to watch out for same-named individuals who are falsely, but, believably, depicted. 

While publication of truthful information is generally considered a full defense to libel, private individuals can sue for highly offensive or embarrassing truths.  So, if your book goes too far and reveals intimate areas of a person’s life – sexuality, family life, medical procedures, and mental (in)capacity – you may invite a right of privacy claim.  Are there defenses?  Yes, but, that's beyond the scope of this post.   

The right of publicity involves the unauthorized use of a person’s name or likeness for commercial gain.  It is related to the right of privacy.  Fortunately for novelists, due to free speech considerations, courts historically construe publicity rights narrowly.  But, that’s the subject of another Q&A. 


If you feel uncomfortable with the legal minefield of libel, right of privacy and right of publicity law, consult a publishing attorney.  A publishing attorney can evaluate or vet your manuscript, and suggest ways to mitigate or avoid many of risks of writing about real people and actual events. 

Expect to pay a publishing attorney what you'd pay a good book doctor.  As they say, "An ounce of prevention is worth a pound of cure."  

Disclaimer:   This article discuss legal issues of general interest and is not designed to give any specific legal advice concerning any specific circumstances.   Libel law is fact specific.  Further, is no single body of  law applies.  Today, information travels far and wide.  Many countries do not recognize the protections we give authors and publishers.  It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

Resources

Smith v. Stewart (Red Hat Club Case)
Pring v. Penthouse
Bindrim v. Mitchell (case ended badly for the author) 
Carter-Clark v. Random House (Court of Appeals)
Carter-Clark v. Random House (Supreme Court)


Libel in Fiction Quotes

"I don't get hurt or bleed; hair doesn't muss, it's one of the advantages of being imaginary." 
    - Ted Baxter in the The Purple Rose of Cairo

"All literature is gossip."  - Truman Capote

"Novelists are inspired gossips." 
    - Margaret Drabble

“But we are the sum of all the moments of our lives---all that is ours is in them: we cannot escape or conceal it. If the writer has used the clay of life to make his book, he has only used what all men must, what none can keep from using. Fiction is not fact, but fiction is fact selected and understood, fiction is fact arranged and charged with purpose."
    - Thomas Wolfe's Preface to Look Homeward Angel

 

 

Related Blog Posts

 

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

 

Writing About the Dead

While the dead cannot be defamed, those left behind—such as family members or associates—can pursue legal action over perceived injury to their reputation. This article provides tips for minimizing legal risks when writing about the deceased.

How 'Look Inside the Book' Previews Increase Legal Risks for Authors

Joseph Iseman, a former partner at the law firm of Paul, Weiss, Rifkind & Garrison, once advised Peter Schwed, the editorial director of Simon & Schuster, that preparing an index for any nonfiction book was a dangerous activity if any of the characters were still alive.

In his autobiography, Turning the Pages: An Insider's Story of Simon & Schuster, Schwed explained Iseman's reasoning.  "Anybody who thinks he is likely to be in a book but doesn’t intend actually to read it is likely to scan the index to see if there are any references to him." 

Amazon's Look Inside the Book feature, which allows potential customers to preview a book's content before making a purchase, has made Iseman's advice to omit the names of living individuals from the index a relic of a pre-internet age. Whereas, in the 1990s, you could still minimize the chances of getting sued for libel by omitting an index to your book, there's no hiding in today's digital world.

Rest in Peace? Libel Law and the Deceased

Under U.S. law, the dead cannot be defamed. However, a person's estate may continue to pursue a defamation claim filed before death.  

Here are some strategies for minimizing legal risks when writing about the dead: 

(a) Consider the Deceased's Family. While the dead cannot be defamed, be careful about making unsupportable accusations about the living—their family, friends, and associates. Unlike the dead, they can fight back.

(b) Utilize Disclaimers. A prominent disclaimer stating that your work is fiction or that certain elements are fictionalized may help deter claims by the living. Still, as explained below, it is not an impenetrable shield against defamation.

(c) Fictionalize. Changing names, locations, and certain details can help minimize claims. However, even if labeled as fiction, if someone closely resembles a real person in ways that make them identifiable to others, that person may have grounds to sue for libel.  

(d) Truth. Truth is an absolute defense against defamation claims. If the statement can be proven true, it cannot be considered libelous, even if it harms someone's reputation. 

The most foolproof strategy for minimizing libel claims is to wait for your literary prey to die. As the old saying goes, "He who laughs last laughs best. Revenge is best served cold at your publication party—preferably with a glass of Sauvignon Blanc, Riesling, or Gewürztraminer.

*A handful of states as of this writing, including Colorado and Georgia, have criminal libel statutes that allow the dead, i.e., their estates, to sue for libel.  In Colorado, any statement "tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred contempt or ridicule,” can get you into hot water if writing about a private individual.  For more information about criminal libel, click here.

###

Related Articles 

• Legal Consequences of Using Real People in Fiction
• When Can I Legally Use, Repurpose and Publish Without Permission? 
• How to Choose a Book Title and Not Get Sued
  

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Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here. Be aware that the law may vary from state to state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website. Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through a mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.

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Outside of a Dog #3: Poe's Legal Battle

Poe's Successful Defamation Lawsuit

Outside of a Dog is a series that features publishing wisdom from a variety of classic and contemporary sources.  As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases.

The New York Times reports that the literati have reached for their plagiarism pitch folks andtorches.  This time the literary prey is the author of a work of historical fiction whose main character is Mrs. Edgar Allan Poe.  The author of The Raven's Bride is in a perilous position - a literary outcast.  Ironically, Poe was vilified by New York's carnivorous literary establishment toward the end of his career.  In defense, instead of the pen, Poe reached for a lawyer.  Long forgotten, Poe's literary feud and lawsuit are a sad account of what happens when good writers do bad things.  

While famous for The Raven, Edgar Allan Poe was notorious for writing painful, intimate sketches of New York's literati.  Three years before his death, Poe's literary output was at a virtual standstill.  However, he had no difficulty spewing gossip for Godey's Lady's Book.  An abhorer of literary cliques, he used this lofty perch for self-promotion and to mercifully skewer friend and foe alike. He also used it to settle old debts. In July 1846,  Poe picked a fight with Thomas Dunn English, a minor poet and publisher, who Poe "profiled" in The Literati of New York.  Poe took issue with English's appearance (comparing him to an ass), his poetry (allegedly plagiarized) and even punctuation.  Poe knew English from his hardscrabble days in Philadelphia. Although the two had been friendly, that friendship ended in 1843, when English published a pro temperance novel, in which he ridiculed Poe by depicting him as a deceitful and quarrelsome drunk.   While English did not name Poe, the character in the novel was unmistakably a drawn-from-life portrayal of the brilliant writer.

In payment for Poe's unkind portrayal of him in Godey's Lady's Book, English dished out double what Poe had heaped in front of him in print.  On June 23, 1846, The Evening Mirror published English's "Reply to Mr. Poe," in which he called Poe a drunk, a forger, a fraud, a plagiarist, and, channeling Monty Python, an abject poltroon.  Curiously, Poe's large head and tiny hands were spared, but not his manhood.  My theory concerning English's apparent restraint, is that he had a large forehead and small hands. Petty, nasty and prideful describes both Poe and English.  English painted Poe as an unprincipled poseur:

"He is not alone thoroughly unprincipled, base and depraved, but silly-vain and ignorant -- not alone an assassin in morals, but a quack in literature.  His frequent quotations from languages of which he is entirely ignorant, and his consequent blunders expose his to ridicule, while his cool plagiarisms from known or forgotten writers, excite the public amazement."

Poe, no longer welcome in New York's literary salons, retreated north to a small, drafty, cottage in the village of Fordham.  Blacklisted and broke, he sued the owners of The Evening Mirror (but, not English) for publishing English's rejoinder. Why did Poe drop his pen and deploy a lawyer?  Three reasons.  English challenged Poe to sue him. Poe's lawyer took the matter on a contingency fee basis.  And, in a letter to Horace Greeley, Poe wrote,  "I sue; to redeem my character from these foul accusations."  On February 17, 1847 a jury awarded "Mr. P. $225 damages and six cents costs."   He had sued for $5,000 in compensatory damages.  Within three (horrible and unhappy years) Poe was dead.

Was Godey's Lady's Book a good career move for Poe?  I don't think so.  Was challenging Poe to make good on his threat to sue him a smart move on the part of English?  Ditto. 

On a personal level, while not condoning possible bad behavior, I hope the author of The Raven Bride survives the persecution and returns as a full-member of the literary world. The journals that vilified Poe are long forgotten.  Poe is evermore. There are second acts.  

Related
Outside a Dog: Nos. 1 & 2 (Mark Twain's 1900 eBook Contract  & Reserved Rights)
Libel-in-Fiction: Is Dick Cheney a Robot?  by Lloyd J. Jassin
Poe Makes Appearance as Marmaduke Hammerhead in Tom Dunn English's 1844 Roman a Clef 

Resources
Poe's Major Crisis: His Libel Suit & New York's Literary World (1970, Duke Univ) by Sidney P. Moss
Israfel: The Life & Times of Edgar Allan Poe  (1927, Doran) by Harvey Allen
Poe's Poisoned Pen: A Study in Fiction as Vendetta (2009), by CL Givens

Edgar Allan Poe's "The Bells" sung by Phil Ochs

Ask a Lawyer: Interviews and the Law

Q: I'm writing a book based on interviews I've done with political leaders, writers, actors, and other prominent people. Do I need written permission? What can I do to avoid being sued for libel?

A: What can possibly go wrong if you don't obtain a signed release? Plenty. Leading the parade of horribles is defamation. Will the interviewee claim the edited interview, either by omission, implication or innuendo, placed them in an unfavorable light?

 

In 2016, Katie Couric was sued by a gun advocacy group for deceptive editing of an interview in a documentary titled Under the Gun. While Couric beat the $13 million dollar defamation lawsuit on appeal, a simple release could have saved time, money and the stress. 

 

While there are defenses such as innocent construction (to defamation), truth (to defamation), fair use (to copyright infringement), and implied consent (to use in other media), because of the legal what-ifs and hazy boundaries of the law, the best practice is obtain a signed release.  

Click here for sample interview release forms.

 

Spoken Releases

 

There are many reasons authors do not obtain written releases, including deadline pressure on interviews conducted by phone or Zoom. While less reliable than a signed release, recorded consent is a viable alternative, provided the scope of rights is clearly defined.

 

At the beginning of an audio or video interview ask if you have permission to record the interview, and they understand that you may edit the interview and use it for future research or in different media.

It's important that the interviewee respond. If you edit or transcribe the interview accurately, and store the recording in a safe and accessible place, you've gone a long way to reducing the risk of a successful defamation or copyright infringement lawsuit. 

 

Of course, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

The Parade of Interview Horribles

 

A  Parade of Horribles

Copyright. One of the hotly contested issues in copyright law is who owns an interview. Some copyright scholars posit that an interview is jointly owned by the interviewer and interviewee. However, to qualify as a joint work, there must be evidence that the parties intended to be joint owners. If determined to be a joint work, the co-authors are afforded equal rights in the work, subject to to a duty to account to each other.   

The Copyright Office believes that an interview consists of two separate copyrights, i.e., the interviewer and interviewee own the words they spoke. A third theory is the interviewer owns the copyright in the selection and arrangement of the questions and answers. Because it's often unclear if the interviewer and interviewee shared an intent to be co-authors, the best practice is to get a signed release.    

 

If the ownership issue can't be resolved conclusively, you may be able to roll out the fair use defense. But, it's a partial solution. For example, it won't allow you to publish an entire interview.

Fair use allows writers, podcasters, and others to copy small portions of in-copyright works for socially productive purposes without permission. A defense to copyright infringement, it enables courts to avoid rigid application of copyright law where the strict application would "stifle the very creativity which the law is designed to foster."

Unfortunately, fair use is not amendable to mechanical rules. The fair use test takes into consideration or weighs these four factors: (a) the purpose and character of the use, including whether the use is primarily commercial in nature; (b) the nature of the copyrighted work; (c) the amount and importance of what's used in relation to the original work; and (d) if the use supersedes a market for the original?

Libel. Libel is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to libel. Where the plaintiff is a celebrity or public figure, the plaintiff must show that the false statement was made with reckless disregard for the truth (aka actual malice). While a celebrity or other public figure may have a tough time winning a libel suit due to the constitutional actual malice standard, a well-drafted release will give you the right to edit and use the interview in any media without consent.

The gold standard is a well-drafted written release. Document signing apps like DocusSign and Adobe Sign are simple e-signature solutions. Today we're habituated to clicking OK boxes without much thought. So, getting a release signed need not be a burdensome task.

Media Liability Insurance

If you don't have a signed release, given the murkiness of the law, media liability insurance is something to look into. It's a specialized form of insurance that covers claims of copyright and trademark infringement, invasion of privacy, defamation, and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas and negligent publication. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

# # #

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" appears in The Huffington Post. The "Q" to my "A" is  Jeff Rivera, a journalist who reports on publishing and entertainment trends and personalities.]

Q: I'm writing a book based on interviews I've done with political leaders, writers, actors, and other prominent people. Do I need written permission? What can I do to avoid being sued for libel?

A: What can go wrong if you don't have a signed release? Leading the parade of horribles are claims for defamation, false light invasion of privacy (a misleading implication that the average person would find highly offensive), and breach of contract.   

 

If you choose to forego a release, free speech, fair use, and implied consent defenses may insulate you against specific claims. However, because of the legal what-ifs, the ill-defined boundaries of implied consent, and the fact public figures are known to have large egos, deep pockets, and lawyers on speed dial, the best practice is to obtain a release.  

 

A well-drafted release will cover more than just permission to use a person's name and statements. For example, a release can potentially sidestep a lawsuit alleging alterations made to the speaker's words have tarnished their reputation. This is especially helpful when the individual is not a public figure and the statements do not concern a matter of public interest. 

 

Another potential problem a release can prevent is a disgruntled interviewee's attempt to revoke their consent or demand certain statements be deleted. The drafter of a release will want the unambiguous right to use the individual's name, voice and likeness to promote the interview. A release may include an indemnification clause that shifts liability from the publisher or podcaster to the interviewee. If the interview can be edited at the publisher or podcaster's discretion, the interviewee might try to exclude any editorial changes made without their consent from the indemnity.

Here's a link to sample interview releases. 

 

Spoken Releases

 

Did I hear you say, "What self-respecting political leader, bestselling author, or celebrity would sign an interview or guest appearance release? Excellent point. While less effective than a signed release, you can record the subject's consent. Provided the scope of rights is clearly defined, it's a viable alternative.  

 

While recording, before the interview starts, state the interview date and the interviewee's name. State clearly that the interview may be edited and used in all media, in whole or in part, in all languages throughout the world, in perpetuity. Then ask if you have their permission to record the actual interview and their answers to your questions. 

 

Of course, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

The Parade of Interview Horribles

 

Infringement and Libel Lead the Parade of Horribles

Copyright. Will the interviewee claim ownership of the interview? Some copyright scholars posit that the interviewer and interviewee jointly own the interview. To quality as a joint work, the interviewer (or podcast host) and the interviewee must agree that they will each own the interview. But that's not how things usually work in the real world. Most interviews do not qualify as joint works under the Copyright Act. In the rare instance an interview qualifies as joint work, either co-owner can issue non-exclusive licenses without the other's consent, subject to a duty to account for any profits made. 

The Copyright Office believes that an interview consists of two separate copyrights. That is right. They believe it consists of two separate copyrights - the interviewer and interviewee each owns the words they spoke. It's an interesting theory but of little practical value to the interviewer. Another legal theory is that the interviewer owns how the questions and answers are selected and arranged. In other words, the interview as a whole. So, who owns the interview? There's no bright-line rule. That's why it's a good idea to get it in writing.  

Libel, Privacy, Publicity. Without a signed release, writers, publishers, and podcasters are vulnerable to being sued for defamation and, a lesser threat, invasion of privacy. 

Libel is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to a libel claim. Where the plaintiff is a celebrity or public figure, the plaintiff must show that the false statement was made with reckless disregard for the truth (aka actual malice). While a celebrity or other public figure may have difficulty winning a libel suit because of the legal actual malice standard, written consent is the best defense. If you transcribe accurately and can locate the recording or release, you've taken significant steps to minimize the risk of a successful libel suit. 

 

The right of publicity is the right to control the commercial exploitation of a person's name, likeness, or voice. However, the use of a celebrity's persona without their permission is generally protected under the "newsworthy" exception, provided it's related to the use and is not expressly misleading. The "newsworthy" exception applies not just to hard news but also matters of legitimate interest to the public, including sports, entertainment, and politics. In some states, a deceased person's right of publicity survives their death and may pass by will or be assigned.  

If you don't obtain consent, the advantage of interviewing a celebrity is that the First Amendment makes it difficult for a celebrity to bring a successful claim for invasion of the right of publicity and libel.   

The gold standard is a well-drafted written release. Document signing apps like DocuSign and Adobe Sign are simple e-signature solutions. Today we're habituated to clicking OK boxes without much thought. So, getting a release signed need not be a burdensome task.

Fair Use
 

If the ownership issue can't be resolved conclusively, you may be able to roll out the fair use defense. But it's a partial solution. For example, it may not allow you to publish an entire interview.

Fair use allows writers, podcasters, and others to copy (usually) small portions of in-copyright works for socially productive purposes without permission. Finally, as a defense to copyright infringement, fair use allows courts to avoid rigid application of copyright law where the strict application would "stifle the very creativity which the law is designed to foster."

Unfortunately, fair use is not amendable to mechanical rules. The fair use test takes into consideration or weighs four factors: (a) the purpose and character of the use, including whether the use is primarily commercial; (b) the nature of the copyrighted work; (c) the amount and importance of what's used in relation to the original work; and (d) if the use supersedes a market for the original?

Media Liability Insurance

If the subject matter is sensitive and you don't have a signed release, given the murkiness of the law, media liability insurance is something to look into. It's a specialized form of insurance that covers claims of copyright and trademark infringement, invasion of privacy, defamation, and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas and negligent publication. Most of these policies also cover defending a lawsuit, including attorney's fees and court costs. 

 #  # # 

 

I Shall Be Released, performed by Bob Dylan
 

 

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

THE INFORMATION PROVIDED HERE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.

What You Need to Know Before Hiring a Ghost Writer

"I can never understand how two men can write a book together; to me that's like three people getting together to have a baby." -- Evelyn Waugh

Nearly 50% of marriages end in divorce. Creative partnerships fare no better. Creative partnership breakdowns, however, can be averted by a well-drafted collaboration agreement that anticipates potential conflicts.

Good Contracts Make Good Writing Partners

Collaboration agreements define the parties' goals, rights, and remedies and anticipate what could go wrong. While there is no single reason for their failure, creative partnerships often fail due to poor communication and unrealistic expectations, compounded by the lack of a solid agreement reflecting the parties' intentions.

If you do not believe a collaboration agreement is necessary to avoid the despair and disappointment of a failed collaboration, bear in mind that many publishers require you to have one.

  

How you deal with author credit, compensation, expenses, copyright ownership, and approval of business and creative decisions depends on the parties' leverage and sense of fairness.

 

Who Owns the Work?

People jointly creating a work with the intent their contributions be merged into a single work are often caught unaware of the consequences of working without a written agreement. In the absence of a formal written agreement, the law of joint authorship fills in the gaps. In such instances, copyright law presumes equal ownership and royalties. Judges do not apportion a larger or smaller revenue share based on the collaborators' contributions, experience, or reputation. Expenses and profits are split 50/50 - unless otherwise agreed to in writing.

 

If legally determined to be a joint work, each author is treated as the owner of the entire work. Either may exploit the work.  However, a coauthor can grant non-exclusive licenses to copy, distribute, adapt, display and perform the work, subject to a duty to account to each other. Imagine a situation in which a film studio expresses interest in adapting a jointly authored biography of President Zelensky of Ukraine. The studio will demand the exclusive right to adapt the book to avoid two competing biopics. Without a written agreement addressing ownership and control, an uncooperative co-author (or a deceased co-author's estate) can prevent the licensing or sale of motion picture or other rights.

Ghost Written & "As Told To" Books 

 

If the objective is to strengthen your personal brand or create brand awareness of your business, a work for hire agreement is an acceptable way to own and control the content you've contracted for. There are two sets of circumstances that determine if a work qualifies are a work for hire: (i) an employee acting within the scope of their employment; and (ii) there's an agreement that states the work is a work for hire owned by the party that commissioned it. The influential Second and Ninth Circuits, for example, require that a work for hire agreement be signed for work begins. 

 

Just like collaboration agreements, no two ghostwriter agreements are alike. While a writer for hire may give up copyright ownership, what form of credit they receive  (discussed below), how revenue will be shared, and what happens if the hiring party decides to abandon the project is subject to negotiation. 

 

A ghostwriter agreement should clearly state what is to be delivered and when. In addition to word count, delivery dates, and revisions, you must define precisely what you need from the writer. Is it a warts and all, non-idealized memoir? Or is the ghostwriter's job to put the best face on your story without resorting to blatant deception? It's a good idea to attach a book proposal to the agreement or reference it. This establishes a standard under which the ghost writer's performance can be judged. More about this topic later.

Compensation is generally in progress payments tied to satisfactory (and timely) delivery. Typically, a portion of the writer's fee is paid on signing. Milestone payments are contingent on the subject finding the work acceptable.   

Case & Comment. Consider the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan. Because they were friends, Kaplan "did not believe a formal agreement was necessary." Orally they agreed they would share credit and split the income 60/40, with the lion's share going to Vincent. Kaplan's faith in the project was amply rewarded - a least initially. Little Brown offered to pay the authors an advance of $300,000, one-half payable upon signing their publishing agreement. After 90% of Vincent’s memoir was written, Vincent got cold feet and terminated the publishing agreement. Under Little Brown's publishing agreement, they were required to return their advances. Vincent repaid the entire $150,000 to Little Brown, allowing Kaplan to keep $60,000. The issue before the court was whether Vincent could prevent Kaplan from publishing the manuscript. See Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  Kaplan argued that he and Vincent were joint authors, allowing him to grant non-exclusive licenses. Because of the conflicting evidence of the parties' intent at this stage of the litigation, the court denied Kaplan's motion for a summary declaratory judgment on the issue of joint authorship. Likewise, the court dismissed Vincent's motion to dismiss, in which Vincent claimed he did not contemplate joint authorship. What began informally ended badly because of the lack of a collaboration agreement.

The Deal Terms

Below are the major elements of a collaboration agreement.  Whatever your negotiation style, don't lose sight of the fact a workable agreement is often a reasonable agreement. 

Responsibilities. If you are writing a nonfiction work,  you need a book proposal to secure an agent or publisher. A nonfiction book proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher. Typically, the proposal includes a detailed overview of the book, the author and writer's credentials, the competition, and information about how the book can be marketed, plus one or two sample chapters. The proposal is the bait used to solicit interest from publishers.

 A nonfiction book proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher.  Typically, a writer will predicate completion of the manuscript on a minimally acceptable advance.  

Fees & Royalties.  If the advance falls short of the parties' expectations, one party can defer all or part of their compensation from the monies advanced.  Once advance has been recouped from sales and licensing revenue, the person who deferred can start getting paid, perhaps on more favorable terms than if they had not deferred payment. Deferring payment is also a way for the subject of a book to obtain the services of a more experienced writer without having to go out of pocket for a large sum.   

 

Payment of the advance is tied to delivery requirements.  For example, a book publishing contract may specify 50% will be paid on signing, 25% on delivery of the first half of the manuscript, and the balance on delivery and acceptance of the complete manuscript. A missed deadline can result in the cancellation of a book contract and demand for the authors to repay the advance. 

Keep in mind even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important – but not copyrightable -- contribution to a book) may still share in the profits and control of a work through an appropriate contractual arrangement.   

Credit. By some estimates, up to 70% of nonfiction books are ghostwritten. It is widely believed that Theodore Sorenson wrote John F. Kennedy's Pulitzer Prize-winning book, "Profiles in Courage,” for which JFK took both the prize and sole author credit.

Writing credits take various forms.  Typical writing credits include: "by Subject and Writer" or "Subject with Writer" or "as told to Writer." By definition, if a book is ghostwritten, sole authorship credit for the work will be in the subject’s name only. When the writer's name doesn't appear on the cover, all of the career-building goodwill inures to the putative author.  That lays the foundation for a ghost requesting a higher fee.  When both parties are credited, the size and prominence of their names, and their order, need to be negotiated. 

Work for Hire.  A work for hire means that the hiring or commissioning party is the author and owner of the work.  There are two instances in which a work for hire can occur: (a) a specially ordered or commissioned work; or (b) a work created by a regular employee in the course of their employment. This definition is an oversimplification of what constitutes a work for hire. However, before you start working with a friend or a freelancer, it is crucial to clarify in writing if the work is intended as a work for hire. Include language in the agreement that explicitly states that the work is for hire and legal ownership vests in you. The agreement should include a backup assignment/transfer of copyright to cover all bases.  

Death & Disability.  What happens if someone dies, becomes disabled, or the parties determine that they just can't work together any longer? If a textbook, or other work that is regularly revised, it's a good idea to include a provision giving the surviving author the sole right to revise the work.  In the textbook arena, it's common to include a provision that reduces the royalties paid to the non-participating author.  A well-drafted collaboration agreement will also address if the person hired to work on the revision receives author credit.  

Final Approvals. Control of business affairs (e.g., who is responsible for seeking out and approving book deals?) and editorial matters (e.g., who has the authority to approve the final draft of the work or authorize revisions?) are critical issues. Unanimity may be required for certain decisions (e.g., approval of the initial publishing contract).  Suppose one party retains approval rights over the manuscript. In that case, the other party should try to impose reasonable limitations, such as a chance to correct the manuscript within (e.g., 30) days after receipt of the other party’s comments.  Requiring the party with approval rights to provide detailed editorial reasons for any dissatisfaction establishes objective criteria by which the writer can revise and have their contribution judged. 

Representations & Warranties.  From a ghostwriter, or "as told to" writer's perspective, the subject should represent and warrant that they will: (i) provide access to pertinent documents, e.g., diaries, memorabilia, legal or other documents; (ii) provide reasonable access to themselves; (iii) use their best efforts to provide the writer with access to other individuals as may be required to write or finish the book; and (iv) cooperate in good faith with the writer in pursuing a publishing deal.  Special attention should also be paid to the indemnity clause.  An indemnity is a promise to reimburse the other party should they breach their warranties. 

Reciprocal representations and warranties include: (i) no contractual commitments (e.g., a confidentiality agreement) exist that will interfere with the ability to perform their obligations; (ii) their work is original and will not violate any copyrights, rights of privacy, and publicity, or constitute a libel against, or violate any other common law rights or other rights of any person or entity.  

Suppose liability arises because of a contract breach. In that case, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid out to others.  From the writer's perspective, material written or provided by the subject should be excluded from the writer's representations and warranties.   

TIP.  Since verifiable truth is a complete defense to libel in the United States, the agreement should require both parties to retain copies of all recorded interviews, transcripts, books, notes, letters, emails, and other research materials used to prepare the book. If there is a lawsuit, you may be required to prove the truth of the published statements. (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).

Confidentiality & Non-Disparagement Clauses.

Confidentiality clauses are huge issues for celebrities and other public figures. Here's the confidentiality clause from the unsigned collaboration agreement between Fay Vincent and David Kaplan discussed above:  

All material, whether oral or written, contributed by either party for use in the manuscript, including materials and information provided before the execution hereof, shall be considered confidential. Neither party shall use any of such material or the facts or the information contained therein that have been provided with the parties' collaboration except as permitted hereunder or under an agreement with a third party to which both parties have previously agreed in writing, without the express prior written approval of the other party. In no event shall any confidential material otherwise be used by the party that has not furnished the same in the event there is any termination of the agreement. Specifically, Kaplan agrees not to participate in interviews, write any articles or books, or take any actions in or by which he discloses in any manner any of the unpublished information furnished to him hereunder, or any portion thereof, in connection with the work which is not publicly available or independently discovered by Kaplan, including any non-public aspect of the relationship of the parties involved in the preparation or the writing of the Work and/or its adaptation for use in any media whatsoever ....

I recommend that my clients include a non-disparagement clause in their agreements. For example: 

You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame Subject, his family, his business associates, company, directors, officers, shareholders, employees, agents, or attorneys, with or through any written or oral statement or image, whether or not they are made anonymously or through the use of a pseudonym. 

Nondisclosure agreements usually contain an exception, allowing one to share or discuss the agreement with their literary agent, attorney, tax preparer, or as compelled by a court or government agency (e.g., the IRS).  

 

 Conclusion

Collaboration and ghostwriter agreements are preventative medicine. Although collaborators might not feel comfortable discussing copyright ownership, death, disability, compensation, and related issues, a well-drafted agreement can limit your distress and save you thousands of dollars in lawyer fees if a dispute should arise.       

© 2013 - 2016.  Lloyd J. Jassin  

     

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors

How to Protect My Book Title

 

Disclaimer: This article discusses general legal issues of interest and is not designed to give any specific legal advice concerning any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the advice contained in this article.

About the Law Offices of Lloyd J. Jassin.  At the Law Offices of Lloyd J. Jassin, we provide more than legal advice. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment, and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide. View Lloyd's complete profile. 

Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (Email), or visit: http://www.copylaw.org. Follow us on Twitter: http://twitter.com/LloydJassin.