Tuesday, November 30, 2010

Can I Be Sued for Publishing the Truth?

Here is another post updated from a question and answer that originally appeared in my column in Debbie Ridpath Ohi's popular online newsletter of yore -- Inklings.

Q.  I am working on a nonfiction project of a very sensitive nature, and have a lot of factual material, including documents, original letters, and more.  I want to know what my rights are as far as making these things public.  These letters were written to me, and I don't know how much detail I should go into as this moment . . . . [I do not know] if I can use true names and photocopies of these letters and documents, or if I need to change names, and rewrite letters I have received to protect myself from suit.

A.  Your question raises implicates at least three separate areas of the law: defamation, privacy, and copyright.

Defamation claims arise out of false statements concerning individuals or businesses that tend to harm their reputations.  Simplistically stated, you cannot be liable for defamation if what you publish is true.  Indeed, under U.S. law, even if you inadvertently publish false information, you may escape liability if, in researching and writing your work, you have exercised the degree of care consistent with the principles of responsible journalists and authors.  The degree of fault necessary to impose liability for defamation may depend on whether the subject of an erroneous statement is a public figure or a private figure.

By contrast, under the law of privacy (particularly that branch known as "public disclosure of private facts), you can be liable in some states for publishing true statements, if they would be highly embarrassing to a reasonable person and if the statements do not related to a matter of legitimate public concern.  For example, intimate revelations about a person's sex life or embarrassing medical condition may raise invasion of privacy concerns, even if they are true.  The law as it applies to public disclosure of private facts can be quite complex.  If you are telling "your own story," and the private facts you wish to disclose are essential to that story, it may, in some instances, provide you with a defense.  But you will surely need an attorney to help you navigate those waters.  I will return to this subject in a later post.

Additionally, your question raises copyright issues.  Even though the letters were addressed to you, the copyright ownership likely remained with the letter writer.  Unless ownership was formally transferred to you or unless you received permission from the letter writer to quote from the letters, you may only quote from them to the extent permitted by "fair use."  That said, copyright right protects expression, not ideas, you may be able convey much of the information in the letters in your own words, without infringing the letter writers' rights.

When a work raises issues of defamation or invasion of privacy, a publisher may ask the writer to document and explain in detail his or her basis for making particular statements.  You may, for example, be asked to disclose to the publisher's attorney the documents and letter on which you have relied.  You will also likely be asked to warrant in your publishing agreement that your work does not violate anyone's legal rights (e.g., that your writing will not give rise to defamation, privacy, or copyright claims).

Sometimes, as you suggest, name changes and rewriting your source materials, are prudent; the best approach must be arrived at on a case-by-case basis.  Although it came out quite a few years ago, Kenneth Norwick's The Rights of Authors and Artists, published by the American Civil Liberties Union, continues to provide a good, clear, general introduction to the principles of libel and privacy law.  However, if you are about to embark on a controversial project that you fully expect will be published, whether in print or online, you may wish to consult an experienced media lawyer at the outset to discuss the libel, privacy, and copyright issues you will be facing.  If you already have a publisher, the publisher's attorney may be able to give you the early, practical advice you need.

Sunday, November 28, 2010

"Modernism and Copyright" edited by Paul K. Saint-Amour

Modernism and Copyright, an outstanding collection of essays published by Oxford University Press, is shipping now and should soon be available from online booksellers and selected brick and mortar stores.  The table of contents is reproduced here.  The editor, Paul K. Saint-Amour, is an Associate Professor of English at the University of Pennsylvania and the author of a well-regarded previous volume on copyright and literature, The Copywrights: Intellectual Property and the Literary Imagination.

Many of the essays in Copyright and Modernism  touch on the adverse effect that prolonging the term of copyright has had on literary scholarship, particularly scholarship exploring the works of modernist authors, many of which would have passed into the public domain (or would soon be doing so) but for the enactment in 1998 of the Sonny Bono Copyright Term Extension Act.

I particularly recommend an essay by Robert Spoo, "Ezra Pound, Legislator: Perpetual Copyright and Unfair Competition with the Dead."  Spoo is an interesting hybrid -- a professor of law, a practicing attorney, and a former English literature professor, who was, at one time, the editor of the James Joyce Quarterly.  Notably, Spoo was also one of the lawyers who represented Carol Loeb Shloss in her copyright battle with the James Joyce Estate over her biography of Joyce's daughter, Lucia. Shloss's account of her fascinating lawsuit, "Privacy and the Misuse of Copyright," also appears in the volume.

Full disclosure:  I contributed an essay on, among other things, the J.D. Salinger, L. Ron Hubbard, and Richard Wright copyright cases, which involved questions of the "fair use" of unpublished letters in biographies.

Can I Say That My Story Was Not Previously Published?

For several years, the Toronto-based writer and illustrator Debbie Ridpath Ohi published a wonderful and enormously popular online newsletter for writers called Inklings, to which I contributed a periodic column entitled "Ask the Lawyer." At its peak, Inklings had 50,000 subscribers.  Here, in slightly updated form, are a question and answer from a vintage Inklings column (to which I granted Debbie "first publication rights").

Q. I posted my stories on my website at the same time as submitting them to various publications.  One of them wants to buy my story, but wishes to have "first publication rights."  By putting my stories on the web, have I published them?

A. Yes and no.  In seeking first publication rights, an editor has two concerns.  First, for commercial reasons, the editor presumably wants to be the first to distribute your story to the periodical market.  Second, for legal reasons, the editor wants to be certain that no prior publication owns any conflicting rights in your story.  Your publication of your own story on your own website does not raise legal concerns about conflicting ownership rights.  However, it may be a closer question as to whether your posting of your story on your website could materially diminish the commercial value of the story to your publisher.

By way of background, as a matter of U.S. copyright law (which is not necessarily dispositive on the meaning of "publication" in a private contract with the periodical), it is not clear whether the display of the story on your website constitutes a publication.  Here is the definition of "publication" in Section 101 of the Copyright Act:
the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Thus, while the mere "display" of your story on the website may not constitute publication in the copyright sense of the word, the explicit or implicit authorization of your website visitors to download it, print it out, or redistribute it (e.g., through social media) could be.

Accordingly, to be entirely upfront (and to preserve your editor's goodwill), you may wish to disclose to him/her that you have previously posted the story on your website and that you, of course, assume that is not a problem.

An afterthought and amplification:  Should an editor of an ink-on-paper periodical care if your story appeared on your own lightly trafficked personal website?  Probably not, particularly if you take down the story when you learn that you have placed it with the periodical.  On the other hand, you can readily understand why the editor of a printed  periodical (or, perhaps especially, the editor of an online periodical) might care about the previous online posting of an article in a highly trafficked website, where it has already have been accessed by many readers and remains available online for free in competition with the periodical's (hopefully paid) publication of your work.

Wednesday, November 24, 2010

Libel Insurance for Writers

From time to time, authors ask whether they can and should buy insurance to protect themselves against claims for defamation, invasion of privacy, or copyright infringement arising out of the publication of their manuscripts.

At the outset, you should be aware that the vast majority of authors never purchase such insurance, and rightly so.  First, most manuscripts simply do not present any meaningful legal risks.  Second, many book and magazine publishers themselves carry "media perils" insurance.  In most instances, the publishers would be joined as defendants in any lawsuit and would wage a vigorous defense, which could, in some instances, include a defense for the author.  Indeed, some publishers have provisions in their insurance policies that allow them to name authors as "additional insureds."  (Don't assume this is the case; if insurance is an important consideration with regard to a particular manuscript, you or your agent should ask what coverage, if any, the publisher provides for its authors.)

Nevertheless, for a variety of reasons, risk-averse authors sometimes wish to consider purchasing insurance coverage of their own.  These days, the concern most often arises in the context of blogs or other online publishing where neither the author nor the web publisher has any applicable insurance.  Also, in the context of academic literary publishing, small journals may not have insurance coverage for themselves or their authors.  Moreover, even if a book publisher, for example, has insurance coverage, there could be exposure to the author for the publisher's deductible undeer its insurance policy (since publishing agreements almost always contain warranties whereby the authors promise that their manuscripts will not violate the rights of others).

Some writers organizations now offer insurance programs for their members.  See, for example, this program offered by the Authors Guild.  Crucially, the Authors Guild policy covers defense costs (which are frequently a greater concern than the risk of any ultimate liability to the plaintiff) and has a reasonable deductible of $2,500 to $5,000, depending on the policy.  The Media Bloggers Association has announced a similar program specifically for its member bloggers.

Other groups that offer the opportunity to buy media perils insurance as a benefit of membership include the National Federation of Press Women and the Independent Book Publishers Association.  (There may be additional requirements, such as experience in the profession and an absence of prior involvements with litigation, to receive discounted rates.)

Insurance companies such as Axis-Pro (formerly known as Media/Professional), the company that currently underwrites the Authors Guild policies, and First Media, among others, will also issue policies for individual writing projects. The premiums vary significantly by project.  Often in order to obtain insurance on a book project, an insurer will insist that the manuscript be read by a lawyer, which can add several thousand dollars to the cost.  If an author is seeking insurance to supplement the coverage of his or her book publisher, it may be possible, in some instances, to piggyback on a legal read performed by the publisher's lawyer.

University professors may be able to obtain insurance through the American Association of University Professors that covers a variety of professional hazards, including claims arising from articles published in academic journals; however, there may be limitations on the types of publications covered.

You should not rely on your homeowner's policy -- or even on your umbrella policy -- to provide protection from the kinds of claims that writers incur, unless your insurance professional has assured you that your policy specifically covers the relevant risks.  See, for example, this discussion of claims against bloggers in the Wall Street Journal.

Of course, your first line of protection against lawsuits is to make sure you have your facts straight (truth is the ultimate defense in libel actions) and to respect the intellectual property of others (e.g., observe the principles of "fair use").

Again, the vast majority of writers will never need media perils insurance.  However, if you are writing about highly contentious subjects, you may wish to explore the available options and determine whether the benefits of this specialized form of insurance are worth the not inconsiderable costs.

Tuesday, November 23, 2010

Writes for Readers: Best First Novels

The Center for Fiction in New York City will announce the winner of the 2010 Flaherty-Dunnam First Novel Prize on December 6.  Many past winners (and short listed nominees) have gone on to achieve other top honors, including Juno Diaz's The Brief Wondrous Life of Oscar Wao (Pulitzer) and Marisha Pessi's Special Topics in Calamity Physics (New York Times 10 Best Books List).  Last year's winner was The Woodsburner by John Pipken, a wonderful historical novel about Henry David Thoreau.  The little-known Tinkers, by Paul Harding, was on last year's short list and went on to win the Pulitzer.  

This year's short list consists of:

• Beneath the Lion’s Gaze by Maaza Mengiste (W.W. Norton)
• The Invisible Bridge by Julie Orringer (Alfred A. Knopf)
• Matterhorn by Karl Marlantes (Atlantic Monthly Press with El León Literary Arts)
• Mr. Peanut by Adam Ross (Alfred A. Knopf)
• The Quickening by Michelle Hoover (Other Press)
• The Report by Jessica Francis Kane (Graywolf Press)
• This is Just Exactly Like You by Drew Perry (Viking)

Full disclosure: I am a member of the Board of the Center.

Saturday, November 20, 2010

Is It Still in Copyright?

One of the most frequent questions asked by writers (and bloggers) is whether a particular work they wish to quote at length (potentially beyond the bounds of fair use) -- or even republish in its entirety -- is still protected by copyright.  It can be a more complicated question than one might expect.

One short answer is that, if a work was first published in 1922 or before, the copyright in the United States has expired, and the work is in the public domain in the United States.  However, you must be careful to quote from the work as it existed in 1922 or before.  Later editions of the work could contain new or different copyrightable expression first published after 1922, and that expression could still be copyright protected.  (There is also a bit of disagreement among courts as to when the copyright term begins if the work was first published outside of the United States without a United-States-style copyright notice, but we will skip over that subtlety here.)

Matters are further complicated by the fact that copyright is territorial.  The duration of copyright in other countries is computed differently, a subject I will return to in later posts. As a result, even though the copyright in a work has expired in the United States, it could still be copyright-protected in other nations.

Further complications arise from the fact that many post-1922 works that once enjoyed copyright in the United States have lost their copyright protection over the years by reason of the failure to register and renew the copyrights or to comply with other statutory formalities, particularly the formalities of the old 1909 Copyright Act.  Additionally, works created prior to January 1, 1978, that were unpublished as of that date, have their own complicated set of rules concerning copyright duration.

The best short summary of the duration of U.S. copyright is to be found here on the Cornell website.  It is based in part on Laura Gassaway's simpler chart found here.

Ur-Text: Writers, Understand What You're Signing Before You Sign It

One of the reasons I became a lawyer was self defense.

As a 24 year-old aspiring writer, transplanted from Akron, Ohio, to New York City, having recently dropped out of an MFA program, I signed a contract with a literary agent to co-author (with a friend of mine) a book of purported humor.  A first book for both of us, it was unexpectedly successful.  Only when a sizable advance came in from the paperback publisher did I pay any attention to a key clause in my contract with the agent.  The contract provided that my co-author and I would receive the revenues from the book, less the agent's commission, and less a "pro rata share of [the agent's] cost of operations."  When I signed the contract, I was clueless about what that clause meant. If I read the same clause today, I still would not know what it meant, but I would surely realize that its ambiguity spelled potential litigation.

When the check from the paperback publisher arrived, the agent first deducted what he regarded as the "pro rata share of [his] cost of operations," then he applied his commission against the remainder, and, finally, he split the remainder two ways between me and my co-author.  He calculated his "pro-rata share" as follows: