Thursday, January 9, 2020

Libel in Fiction

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 is helpful. Libel is defined as 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, 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 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 the that person, there's no veil of fiction to hide behind for purposes of libel law.   

Happily for writers (and The Weekly World News) when the original upon which a fictional character is based sues the claim generally doesn't survive summary judgment. That's because courts recognize a number of 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 in favor of 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 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 (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? Aside from their name, can they be identified from their ethnicity, appearance, historical, employment 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."

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 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, libel will not 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) 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 their 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. 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 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 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. 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 of 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 likeable and honest, rather than than vicious unscrupulous miscreants. While it's tempting to retaliate in print against those who have injured us, 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 mis-identification. 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 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, 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 media law or publishing attorney. They will review your manuscript for potential liability and suggest ways to mitigate or avoid many of the risks associated with writing about real people and actual events.


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 and national consistency is lacking. Each state applies the law of that state 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. give authors and publishers. We strongly advise that you obtain professional legal advice before acting upon any of the information contained 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 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

Tuesday, October 8, 2019

Jassin Quoted in Fortune

I'm quoted in Fortune: Twitter Took a Trump Tweet Down, but Should It Have? And is Nickelback to Blame?

 


Lloyd Jassin discusses fair use.

In Jeff John Roberts' column in Fortune I talk about Fair Use, and the expanding scope of transformative use in the context of political discussion.   

Friday, November 23, 2018

Sometimes Success Comes Later in Life . . . Sometimes in the Afterlife

Milton'

MILTON’S PARADISE ROYALTIES LOST

Victor Bohnam Carter's Authors by Professiontells the sad story of John Milton, blind, deprived of his pension and suffering from financial hardships, signing a hellish publishing contract for his epic poem, Paradise Lost. "The agreement was dated April 27, 1667, and provided that Milton receive £5 for the first edition or impression of 1300 copies, £5 for the second, and the same for the third.” Under the agreement, Milton transferred "All that Booke, Copy, or Manuscript" to his publisher with "the full benefit, profit, and advantage thereof, or w[hic]h shall or may arise thereby." Milton died  in 1674.  During his lifetime he received a total of £10 from his publisher Samuel Symons.  Milton’s widow later sold the copyright to Symons for £8. 

*In today's currency, £5 is approximately £570.00



Milton publishing contract
Contract for John Milton's "Paradise Lost"


Sunday, August 19, 2018

Selling Your Publishing Company: Where Lies the Danger for Indie Publishers?

When the owner of an independently operated publishing company wishes to sell their company, they will need to establish the value of the business they have built. The sale price will be based on the discounted cash flow of the company, and, ultimately, the soundness of its author agreements. Many start-ups are poorly financed, and in the beginning the owners have neither the time nor foresight to focus on their most important asset, their author contract template. This error at the outset of a publisher's career can frustrate their ability to sell the company in later years.

Pre-Exit Planning for Independent Publishers

Problems often arise when publishers borrow an agreement found online.  Lacking  legal acumen, a start-up publisher may delete important provisions that they do not fully understand - or inadvertently carry forward a "poison pill."  For example, an anti-assignment clause.   Generally, a contract is fully assignable unless it contains such a clause. 


Sample Anti-Assignment Clause
Sinclair Lewis' "Kingsblood Royal"
Experience is a hard school.   To illustrate:  Owen, a successful independent publisher, with a backlist of 65 books, decides to sell the assets of his company.  In his late-50s, with no children to take over the business, his exit strategy is to bankroll the sale of his growing company into an early retirement.  As part of the seller's due diligence process he compiles all of the company’s author agreements, foreign translation licenses, financials and other important documents for a prospective buyer to review. To his dismay, his attorney and broker call to say the deal has gone south because the publishing agreement he filched off the Internet when money was tight, contains a non-assignment clause.  The clause reads, “Neither this agreement nor any right or obligation hereunder may be assigned or delegated, in whole or part, by either party without the prior express written consent of the other. 

What should have been a straight forward business transaction, now requires the consent of all of Owen's authors, and in one instance, all of a deceased author's uncompromising heirs. Plus, the author of the crown jewel of Owen's backlist (which generates 50% of the company's gross annual revenue) will use the pending sale to renegotiate her contract -- a contract she desperately wants to get out of.  Is there a way around the discretionary power Owen inadvertently invested in his authors?  Perhaps.  

There are two ways to buy a company.  Stock sales and asset sales.  In certain states the acquisition of stock in the target company will not violate an anti-assignment clause.  However, buyers prefer assets sales.   

If an agent, or author, wishes to insert an anti-assignment clause in your agreement, resist.  Or, consider carving out exceptions for the sale of substantially all of your company's assets, or the sale of the company to a related company.  
TIP:  If you change a boilerplate contract clause for a particular transaction, be careful not to use the revised contract as a template for future deals, unless that is your express intention.
While there are publishing programs at many universities, and organizations such as the IBPA to educate future publishers, at best you will receive an introduction to contracts.  When starting out, don't hesitate to hire a lawyer familiar with the industry.  There are a fair number of attorneys across the country who are intimately familiar with the book publishing industry.  You can't afford not to call one of them.   

If you want to succeed as a publisher you must have a well drafted author-publisher agreement.  Then, through persistence and luck, you are in a position to make the most of the opportunities ahead. 

Lloyd J. Jassin is a publishing attorney and entertainment lawyer.  He counsels clients on contract, licensing, copyright, trademark, unfair competition, defamation, right of privacy and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution and litigation. A graduate of Benjamin N. Cardozo Law School, he is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com.


Related Blog Post

A Helpful Checklist for Book Contract Negotiations

Contact:

Law Offices of Lloyd J. Jassin
The Paramount Building
1501 Broadway, Floor 12
New York, NY 10036
212-354-4442 (tel.)
jassin@copylaw.com (email)
www.copylaw.org


Disclaimer - Terms of Use

By using our blog you agree to be bound by the following Terms of Use.

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 publishing 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 mutual agreement in writing.  Please do not send us any confidential information until an attorney-client relationship has been established.

Attorney Advertising.  While intended as general advice, this blog and its contents may be considered attorney advertising under the rules of certain jurisdictions.  Hiring an attorney is an important decision, and should not be based solely on advertising.  Past results are no guarantee of future results. 

Limitation of Liability.  We disclaim any liability, loss, damage, injury or cost (including, without limitation, attorneys' fees, lost profits, or data) caused by the contents of this blog or website. 

Links.  This website contains links to third-party websites and other resources. These links are provided solely for your convenience and for educational purposes.  They should not be construed as endorsements by the Law Offices of Lloyd J. Jassin.
Jurisdiction.    By using this website you have irrevocably agreed to the sole and exclusive jurisdiction and venue of the U.S. federal and state courts located in New York City, USA.  Any action, suit or proceeding involving the use of this website, the information contained in this website, to the extent permitted by federal law, will be governed by the laws of the State of New York (excluding New York's choice of law rules) in the absence of applicable federal law.

Trademarks.  Copylaw is a registered trademark of the Law Office of Lloyd J. Jassin


(c) 2018.  Law Offices of Lloyd J. Jassin. 


Monday, May 28, 2018

Estate Planning and Copyrights

 By Lloyd J. Jassin & Ronald M. Finkelstein



The focus of this article is on lifetime planning to ensure the
beneficiaries of your estate are protected, and are in a position to take control of your copyrights and legacy.

The control and licensing of copyrights is an awesome responsibility. Long term planning is needed because copyrights are long term propositions. For works published before 1978, copyrights last  for 95 years from the date of first publication. For works created after 1977, copyright lasts for the life of the author plus another 70 years. 

Who will deal with the myriad of issues that arise during the life of a copyright?  Read on.

Who Will Oversee Your Literary Legacy?

While during your life you may be able to play catch-up with legal formalities, unless you have a well-drafted will, or have created a valid trust (or both) for the benefit of others, you have left the ownership and care of your creative or literary legacy largely to chance.

John Keat's 1820 Will
Ideally, authors should name a "Literary Executor" in their will.  An "executor" is a person responsible for settling a deceased person's estate. Among the duties of a General Executor (as opposed to Literary Executor) are contacting an attorney to file a petition for probate of the will; collecting debts owed to the estate; filing for life insurance and other benefits; contacting an accountant (or attorney) to prepare the decedent's final income tax returns, a federal estate tax return and state estate and inheritance tax returns as may be required; and notifying the beneficiaries named in the will. 

A Literary Executor, as opposed to a General Executor, is the


person selected for the limited purpose of managing your published and unpublished after you pass on. The person responsible for keeping your works and reputation alive can be a family member, a trusted business associate, collaborator, agent or attorney; or some combination thereof.  
One court described the Literary Executor's role as "requir[ing] a delicate balance between economic enhancement and cultural nurture." If you have made the appropriate provisions in your will, your Literary Executor will distribute all of the literary property that you owned at the time of your death, and manage your literary estate on an ongoing basis.  

The Literary Executor, acting on behalf of the beneficiaries under your will (e.g. family members, a designated charity, a research library or archive), will be responsible for entering into contracts for exploitation of your copyrights and other intellectual property rights; controlling access to unpublished works; collecting royalties; maintaining your copyrights and legacy; and, if called for, donating your letters, unpublished manuscripts, and other literary materials to a library, special collection or historical society. 
Unlike a general executor who gets the deceased's estate ready to distribute, the literary executor's job is not for a limited time.  It is coextensive with the life of the copyright.
Because of the enduring, and changeable, nature of copyrights (e.g. revised editions, film adaptations, new technologies), the duties of a Literary Executor, or Literary Trustee, projects decades into the future and are ongoing. 

Be forewarned.  Copyrights are complicated. For example, a literary executor is trusted to advise an author's heirs on the process of copyright termination.  The Copyright Act gives an  author's heirs the inalienable right to terminate certain agreements made during an author's lifetime - even if those agreements were in perpetuity.  The mechanics of the termination process are astonishingly complex. Notices must be served within a prescribed period.  If the author's heirs miss the window, or file an improperly drafted notice, the grant or transfer made during the author's lifetime continues in full force for the life of the copyright.    

Selecting a Literary Executor

A General Executor will often be a spouse or other family member who is entrusted with the moral and financial responsibility of protecting copyrights, entering into contracts, and guarding reputations. Because of the specialized nature of these responsibilities, you should consider entrusting the care of your papers, existing contracts and unpublished works to a Literary Executor, who may, or not be, a family member. 

By taking the time to carefully select a Literary Executor, you lessen the likelihood of bitter infra-family disputes over control of your work or works. Family squabbles over copyright control can easily frustrate the ability of scholars, publishers and producers who want to quote, publish or produce your work.  And, if your final wish is that your unfinished manuscripts go unpublished, you can provide in your will that your Literary Executor destroy your unpublished works after your death. By way of example, Ernest Hemingway (1898 - 1961) made it clear during his lifetime that he did not want his unfinished and unpublished story fragments and manuscripts published after his death. However, since his will was silent on the subject, his estate edited and released not just his early stories, but  three unfinished novels (one of which was a posthumous collaboration with his son, Patrick). All three were reviewed poorly.

Ideally, your Literary Executor should be someone who understands how the publishing industry works. That person should also be comfortable with negotiating contracts, and  savvy enough to hire an attorney with appropriate expertise. A Literary Executor should also be someone who will carry out your intentions - even at the expense to your beneficiaries of foregoing untapped royalties. And, since all things come to an end -- including Literary Executors -- you should provide in your will for a replacement when the estate's Literary Executor dies or becomes incapacitated.

Defining the Literary Executor's Duties


Because the duties and powers of a Literary Executor are not defined by statute, it is imperative that the person drafting your will take great care in describing the scope of your Literary Executor's duties. The powers of a Literary Executor should be as broad and comprehensive as possible, unless, of course, you believe there should be limitations, qualifications or conditions imposed upon your Literary Executor (e.g., different executors appointed for book publishing and theater-related matters).

In preparing the powers of a Literary Executor, you must consider the following questions: 

  • Will the Literary Executor have the sole and exclusive right to make all decisions regarding appropriate publication, republication, sale, license or other exploitation of your work? Or, should she merely be appointed as an advisor to the General Executor?
  • Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication? 
  • Will the Literary Executor have the right to terminate copyright licenses?
  • Will they have the power to destroy any letters or papers they believe should be destroyed? 
  • In return for their services, will the Literary Executor receive a fee or commission for their services? What is fair compensation? What about reimbursement for expenses? 
  • Will the Literary Executor be required to maintain a separate bank account for such monies? 
  • Will the Literary Executor have the sole right to sue for infringement of copyrights? 
  • Will the Literary Executor have the authority to pay accountants attorneys, agents, subagents and others? 
  • In the event the Literary Executor is unwilling or unable to perform her duties, what are the provisions for appointing her successor? Or, will the General Executor assume those duties?
While a family member may agree to work for free, attorneys and literary agents will most likely seek a fee of between 10% and 15% for new contracts they negotiate on behalf of the estate. With regard to administering existing contracts, fee arrangements can vary greatly depending upon the size of the literary estate and the responsibilities of the Literary Executor.

The Literary Trustee 

In some instances, an author may create a lifetime (“inter-vivos”) trust and transfer literary assets to the trust. In this case, a trustee will be appointed to carry out responsibilities similar to an Executor. In such instances, the author appoints a "Literary Trustee" who acts in much the same manner as a "Literary Executor" would under a decedent's will. Furthermore, if an author names trusts as beneficiaries under his will and literary assets will be transferred to such trusts, then the author must also name, in addition to a Literary Executor, a Literary Trustee (who would be the same person) in order to continue acting in such a capacity after the literary assets have been transferred to the trusts.

Valuation


If you have accumulated enough wealth so that your assets will be subject to an estate tax upon your death, then the Executor will be responsible for valuing all of your assets at that time, including manuscripts, copyrights and contractual rights derived from the publication and reproduction of your works. The Executor (or Literary Executor, as the case may be) should hire an appraiser with significant experience in appraising -- or valuing -- these interests. Authors with significant estates should meet with their attorney or accountant now to determine whether any lifetime planning can be employed to reduce the value of their estates at their death so that more assets can pass to their heirs.  

(c) 2002 -2019 Lloyd J. Jassin and Ronald M. Finkelstein


Lloyd J. Jassin, JD is a publishing attorney. He counsels clients on contract, licensing, copyright, trademark, unfair competition, libel, right of privacy and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution and litigation. He is a graduate of Benjamin N. Cardozo Law School, and is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com, or you can visit www.copylaw.org 

Ronald M. Finkelstein, JD, CPA, is a Tax Partner at Marcum, a nationally recognized accounting firm, and national Co-Partner-in-Charge of their Trusts and Estates Practice group. He can be reached at 631-414-4370 or by e-mail at ronald.finkelstein@marcumllp.com, or you can visit his firm's website at www.marcumllp.com)

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