Media Law 101: What Writers Need to Know About Libel and Defamation

When I wrote a post that provided a checklist of all the items an author needed to include in his or her completed manuscript, one item on the list that generated a few questions:

"15. Signed releases from subjects mentioned by name or likeness in your book (changing a subject's name is not enough)"

And then there's the news of Kathryn Stockett, author of The Help, being sued by Ablene Cooper, who claims the book's character "Aibileen Clark" is actually her. Ms. Cooper feels embarrassed by the image and says that Ms. Stockett promised her that she would not be included in the book. Get the full story here.

I don't know any of the stipulations in this case, but it seems like a challenging ordeal that most authors can avoid, and I want to help you do that. I'll start by defining libel, defamation law, and right of privacy. Then I'll talk about ways you can protect yourself and respect the rights of those whose name or image you would like to include in your fiction or nonfiction piece.

THE BASICS

Libel involves the publication of written defamatory material, or a defamatory statement recorded in some other permanent form (such as videotape or film). It can occur through the use of an inaccurate quotation, a miscaptioned photograph, or the omission of pertinent facts. Both fiction and nonfiction works can be defamatory.

A defamatory statement is a false statement of fact that injures or harms the reputation of a living person or an existing business. You cannot libel someone who is dead. The statement must have been published, and read or heard by someone other than the person who was defamed. Because of the First Amendment and the fact that defamation law is a state law, the tests for liability depends on whether the person suing is a public official or a celebrity or just a private person, or whether the defamatory statement concerns a matter of public or private interest.

The injured person must establish all of the following to be true:

1. The statement made about them was false. This is not so cut and dry and can be all about interpretation.
2. The statement had a defamatory meaning—injuring reputation; impeaching honesty, integrity, and sanity; or affecting a person's political office, profession, business, or ownership or interest in land or real estate
3. The statement clearly pointed to their person or identity by name or likeness.
4. The statement was published.
5. The statement caused damage to the person's reputation.
6. The person who wrote the statement is indeed at fault.

In certain circumstances the injured person must also prove economic harm—loss of wages or opportunity.

The right of privacy protects a person's peace of mind, sensibilities, and feelings. So it goes beyond what even defamation law protects, which is truth and reputation. People have a legal right to be free from unwarranted and unauthorized exposure of his or her person, or those personal affairs in which the public has no legitimate interest. In others words, we all have a right to be left alone.

A person's privacy can be violated in four ways:

1. Physical intrusion
2. Disclosure of private facts
3. Publicizing them in a false light
4. Misappropriating the use of his or her name or likeness for commercial purposes

MINIMIZING YOUR LIABILITY

Here are some ways to minimize libel claims:

1. Double check the accuracy of all statements about any living person, business entity, or product.
2. Keep detailed logs of calls and contacts made during the fact-checking process, and take outstanding notes documenting what you have done (including your failed attempts to reach people).
3. Obtain written releases whenever possible. (I give a lesson on how to draw one up here.)
4. Recognize the people who are most likely to sue: doctors, lawyers, chiropractors, accountants, public figures, religious figures, educators, business executives, even figures who are not central to the main story but are shown in an unflattering light
5. Watch out for red-flag statements that imply that a person committed a crime, acted irrationally or unethically, was incompetent, is financially irresponsible, acted in a heretical manner, or is involved with a disreputable organization.
6. Use criminal law terminology accurately.
7. If your story is partially or wholly fictional, but based on real people, change the names, places, and identifying information sufficiently so that no live person can be identified. And don't use the names of other real people.
8. Review the entire manuscript—including preface, forward, captions, and illustrations—prior to publication.
9. Organize your research and be certain that all factual statements can be verified by adequate evidence.

A person (author, journalist, publisher, etc.) can defend against invasion of privacy accusations by proving

1. They had the subject's consent.
2. The shared information was public information.
3. The shared information was newsworthy and of public interest. (Note that this defense may weaken over time, because information that was once of public concern can become private with the passage of time.)
4. The shared information was from court records.
5. The shared information was about a deceased person (which does not hold up in some states like Florida).
6. The shared information was not offensive, which could be arguable.

I know this was a long post, and I definitely didn't cover every detail, but I really hope it gets you headed in the right direction. Realize that all of these things have to be proven and defended and then interpreted and decided by a judge. Also know that while you think something isn't a big deal, you can be sued. It doesn't mean you will be proven guilty, but who wants to even go there? Study up on this topic if you are writing a memoir, autobiography, or nonfiction book with personal accounts in them. It will be worth your time.

I am not a lawyer, but I do recommend that you work closely with one to help you sort out your individual concerns or issues. Your editor should also have an excellent working knowledge of media law and may be able to provide you with great advice and counsel.

The definitions and terms in this post are adapted from handouts from a Media Law Seminar conducted at Charisma Media on January 19, 1999 by Allen, Dyer, Doppelt, Milbrath & Gilchrist,PA.

The New Author Platform Is About Building Community

Like everything else in the book business these days, things have changed and all bets are off.

—Alan Rinzler

Every so often on my blog, I capture a bit of data about the publishing industry from secondary sources for my archives. I do this to mark things about publishing that feed my passion for the work I do, give me rare perspective or insight, highlight a significant paradigm shift, help me view the industry through someone else's eyes, or allow me to further support the authors I work with every day.

Today, I share (and archive) the following:

Veteran editor Alan Rinzler blogged about how publishing's view of author platform has changed—past tense. So if you're still operating and thinking in terms of the old model, it's time to upgrade.

The main difference between the old model platform and the new model, Alan says, is that the new author platform now focuses on "developing an unobstructed back and forth between authors and their readers, with the authors—not the publishers—controlling the flow....It's the author, not a publicist, who inspires readers to buy the book."

The new author platform is about the author personally building a community or a tribe around their books—loyal followers, raving fans, engaged evangelists. The middle man (publishers) can't create this kind of synergy on it's own on behalf of the author anymore. Technology and social media have ruined that concept—and I love that they have.

Alan says that an author who masters the following four traits can expect to be successful:

1. Personality

2. Authenticity

3. Expertise

4. Subtlety

He goes into much more detail about all four of these and even provides examples of books and authors who have effectively used them. I urge you to read and bookmark his post for your personal and professional benefit.

Studying these attributes and implementing them in your publishing strategy will keep you ahead of the game. Seeing something behaving in a way you aspire to behave, causes you to take on a portion of that behavior.

"By beholding, you become changed."

I encourage you to get into community with some authors who are doing it right. Follow their blogs, subscribe to their RSS feeds, visit their websites. Take on one new trait or best practice at a time, mastering it before moving to the next. You won't be left behind.

What new methods have you had to adapt to regarding your author platform that have shown positive results?

What Are the Components of a Completed Manuscript?

I write this assuming you are a writer whose book has sold to a publisher and now you are working with your manuscript—writing, researching, gathering facts, honing your key concepts, and all the other necessary goodies that make for a best-selling book.

This post may not apply to the author who was well-coached and managed by a fantastic agent, where everything on my list below was presented at the time of initial query.

But for everyone else...

This is the stage between contract and submission of your final manuscript. What I find when I am wearing my editorial hat (and not my acquisitions hat) is many times I receive a manuscript from an author that is missing quite a few vital components. These components should be part of the writing phase as the author prepares his or her manuscript for publication. I realize that some authors may not be aware of what is part of their manuscript prep and what the editor does during the editorial phase. So often, the things I mention below are overlooked and, by default, land on the editor's plate. (For a refresher of what an editor does, see a previous post.)

Now if you're an author who values a good editor, this should be very disturbing, because what you want is for your editor to spend as much quality time with your content as the editorial schedule will allow. An editor is an expert at making sure the author is all neat and tucked in, but should they also be responsible for doing things the author should have prepared beforehand?

That's a rhetorical question.

But here's another angle. With the whirlwind of trying to get published in the first place and then negotiating the best contract terms, deciphering publishing agreement jargon, working with marketing and sales on best strategies, and fighting through writer's block while working a nine-to-five job, maybe authors are just ready to get that all-consuming thing off of their desk, collect their advance, and are not going back to see what their publisher needs from them to count their manuscript as complete.

Well I'd like to help authors and editors everywhere by providing a little checklist of items and tasks that need to be completed before an author submits their final manuscript to their publisher. Not all of these elements will apply to all projects.

Here's what you need to turn in with your manuscript:

1. Endorsements
2. Dedication
3. Acknowledgments
4. Foreword
5. Preface
6. Prologue
7. Introduction
8. Table of contents
9. List of tables, charts, graphs, or images
10. Charts/tables
11. Graphs
12. Photographs, graphics, or other images
13. Print licenses for song or poetry lyrics; long quotes from books, websites, and news articles; use of charts, graphs, or photographs; or any other copyrighted material
14. Full sourcing (or citation) information for all borrowed and quoted material including author, title, publisher's city and state, publisher's name, publishing date, page number, and/or web link
15. Signed releases from subjects mentioned by name or likeness in your book (changing a subject's name is not enough)
16. Conclusion
17. Epilogue
18. Appendices
19. Bibliography
20. Endnotes or footnotes
21. Index list
22. About the author page

If I were an author at this stage (between contract and final manuscript), I would print this list and put it up in my writing station.

Just sayin'.

Many times, and maybe other editors can relate, chasing down and completing this information impose on my edit time—especially signed releases, print licenses, and sourcing. While I love the thrill of a chase, my time could be better spent really homing in on the author's message or story and helping them make it shiny and life-changing for their readers. It's for the readers that publishers and authors do any of it, right?

Those are just my thoughts as they occurred to me today. What do you think? Did I miss anything? If so, please add them to the comments. Also if you need clarification on what any of the items on the list mean and how to go about getting them, let me know. I'll blog about it for you.