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.


Quoting from an actual letter

January 5, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Infringement, IP Law, Intellectual Property, Plagiarism, Freelance, Fiction

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: Could you please give me an opinion on what is or is not plagiarism in fiction. For example, is it plagiarism to rewrite a letter in a fictionalized biography, so that the sense is the same as the original, but with very different wording, with original material added by the writer? In other words, how close does the prose have to be to fit the definition? Do you need permission in such a case, or is it enough simply to give credit?

A: You asked about plagiarism, but I’m also going to discuss infringement. All infringement is plagiarism, but all plagiarism is not necessarily infringement. Plagiarism is an academic concept regarding the failure to attribute the source of information or by misleading the reader as to the source. Infringement is the violation of a copyright. In cases of infringement, the issue is illegal copying, not attribution. You may be able to avoid charges of plagiarism by giving credit, but you need permission to use copyrighted work, except for very short quotes that constitute fair use. The situation you have described has the potential for both plagiarism and infringement.

There is no copyright protection for facts, so you’re free to fictionalize by inventing things based on the facts. The writer of a letter (published or unpublished) owns a copyright interest in the text of a letter, so you’re not free to make whatever use you wish of this other person’s work. The same legal guidelines would apply to quoting someone else’s copyrighted work in fiction as in nonfiction. Short quotes might be considered fair use, but I wouldn’t count on that.

Probably the safest way to handle this situation would be to paraphrase the actual letter and use indirect quotations. “I will love you until the end of my days and beyond,” a direct quote, could be handled like this: Mary expressed her feelings in a passionate letter to John, saying that she would love him until she dies. Even when paraphrasing, it is important to change the actual words enough to avoid repeating distinctive phrases.

I would not advise making up a fictional letter and using direct quotes from it. That strikes me as moving a step beyond making up fictional dialogue. Rewriting something does not necessarily protect you from charges of plagiarism or infringement. Such revision would certainly be considered improper by academic standards and I’m not sure how you would handle quoting from a fabricated letter without misleading the reader. Basing a fictional letter on an actual letter could also be copyright infringement, even when you change the words. So, for all these reasons, I would stick to paraphrasing an actual letter by describing its existence and the gist of its contents. If you must use direct quotes, make them short and quote from the actual letter, not a fictionalized version.