Ask Author Law

Who controls the right to write about people?

January 9, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Freelance, IP Law, Intellectual Property, Author, Publishing, First Amendment

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I wrote a book that was to include information about a well-known (and somewhat controversial) local minister, now deceased, who was an integral player in the story I was telling. During the course of my research I interviewed many members of his congregation, some of his colleagues, and his successor. I showed a copy of my manuscript to one of the prominent members of his congregation to review for accuracy and to see if he would give me a quote I could use as a cover blurb.

A few days later, out of the blue, I received a letter from a lawyer representing the church. The letter said that the church’s board of trustees had voted unanimously to withdraw permission to write about the minister because it had been his wish not to be written about.

It went on to say, “the Board, therefore, insists that you cease and desist from publishing any article or book about Rev. John Doe (name changed) in any form or manner,” and warned that if my book was published with the material on the minister included they would take legal action against me. This material is an important part of my book, which has already been accepted by a publisher. What can I do?

A: In the United States we have the right to write accurately about people and events. The subject of a book or article (or his associates) has no right to prevent you from writing about him, as long as you are truthful. When the subject is dead, you can’t even libel him or invade his privacy.

In my opinion, you can either ignore the letter or respond politely, saying that there is no legal basis behind these demands and that you intend to exercise your first amendment right to write about the minister. As an alternative to responding yourself, you could ask a lawyer write on your behalf. That might give the response more weight. From a strategic perspective, I’d advise responding with a polite but firm letter from either you or a lawyer just because it’s helpful to all writers to correct grossly mistaken views such as those expressed in this letter.

You should also be careful in negotiating the publishing contract to make sure that you are only responsible for “damages finally sustained” in the event of a lawsuit, rather than any “claims” or other results short of a final damage award based on an actual breach of your warranty. If you think there is a risk of a nuisance suit, you may want to see if the publisher will add you to its insurance. If you’ve already signed a publishing contract, you should probably consult with the publisher about ways to manage this risk. Many publishers will back you up. Some might want you to bear all the risk. If you have doubts about your legal liability, you should probably enlist the help of an attorney.