Pre-Publication Guidance for Freelance Writers, Book Authors, & Self-Publishers
There is a lot of misunderstanding about libel and sometimes it’s caused by well-meaning but naïve or ill-informed writing teachers. One of my book author clients told me that her writing instructor informed a group of adult authors that memoirs were the one literary category where a book author could say whatever they wanted about anyone.
The instructor is wrong. Even if every word the book author says is true and verifiable, the cost of having a lawyer respond to a cease and desist letter or persuade a judge to dismiss a complaint for defamation can cost thousands of dollars.
Litigating Lawyers: Libel in Non-Fiction
I recently discovered that We Love Memoirs Day and Love Litigating Lawyers Day share the same date–August 31. As a literary lawyer and recovered litigator, I find the juxtaposition of these two events providential and a red flag for memoirists, biographers, and other non-fiction authors. While a book author’s imperative may be to tell the truth about their Uncle Harry, Uncle Harry may have a different truth and a hungry litigating lawyer.
If that litigating lawyer demands that Harry’s nephew cease and desist defaming Uncle Harry in Chapter 7 of the nephew’s memoir, it may be time for the nephew to engage his own litigating lawyer to ward off a libel action.
Depending on Uncle Harry’s pocketbook and degree of outrage, and even if the book author has truth on his side, it could still cost the book author four to five figures in legal fees before his day in court.
How Does a Plaintiff Prove He Was Defamed?
Although the states enforce their own libel laws, certain principles apply across the state and federal courts. Whether a book author publishes a memoir or biography as fiction or non-fiction, and assuming Uncle Harry is recognizable, Uncle Harry must prove that the book author made a false statement of fact about him, that the statement has harmed him, and that the book author was negligent about the truth or falsity of the statement.
If Uncle Harry happens to be a U.S. senator, the anchor of the local news station, an archbishop, or is generally known to the public, then he is a public figure. In that case, Uncle Harry will have to show the book author was more than negligent, that the false statement was made with what the law calls malice–reckless disregard for the truth or falsity of the statement.
Pre-publication Reviews by Literary Lawyers Reduce the Risk of Libel
The literary lawyer’s favorite tool for reducing the book author’s risk of libel is a prepublication review or “vetting” of the book author’s manuscript. But its use must be timely, i.e., long before Uncle Harry or his wife buys a copy of the book at Barnes & Noble.
When writing a memoir, biography, or even a work of fiction based on real people, there are three likely stages for a pre-publication review for libel. If the book author intends to submit a book proposal to literary agents for a non-fiction work, it can be useful to have a pre-publication review before submitting the first book proposal. Another key time is upon completion of a draft of a manuscript—whether non-fiction or fiction–that precedes the final draft. The last time is immediately prior to submitting the final draft to an agent or publisher.
A pre-publication review is even more critical when the book author is a self-publisher. Although literary agents and traditional publishers cannot always be depended on to warn a book author about questionable passages or comments, they are aware of libel and accustomed to noticing potentially defamatory statements. Self-publishers have to make up for the absence of savvy gatekeepers with both experienced editors and literary lawyers to reduce the risk of defamation.
No pre-publication lawyer can guarantee any book author a libel-free-post-publication experience. However, a pre-publication review should make any book author in the business of writing about real people in fiction or non-fiction sleep easier.
Don’t Count on a Pre-publication Review by Your Publisher
Whether a publisher performs a pre-publication review for a book author’s work may depend on the contents of the manuscript, the publisher’s legal budget, or their preference to let the book author assume all risk. There are contract provisions in most traditional publishing contracts that protect the publisher from financial exposure whether or not the publisher performs a pre-publication review.
First, there are the warranty and indemnification provisions. The book author promises, i.e., warrants, that their manuscript is truthful and does not violate any laws or the personal rights of third parties. If a third party sues the publisher claiming that some aspect of the work is not truthful or breaches other author warranties, the indemnification provision is triggered. Indemnification requires the book author to take full financial responsibility for the publisher’s legal defense, attorneys’ fees, settlement costs between the parties, or judgment taken against the publisher. The book author indemnifies the publisher for all expenses even if a court declares that the publisher was not liable for defamation. If the book author is also sued, the author shall be financially responsible for their own defense.
Second is a provision that grants the publisher the opportunity to perform a pre-publication review of the book author’s manuscript for libel. (Note that the term “prepublication review” often refers to vetting a literary work not only for libel but for privacy, permissions, and publicity issues as well). However, the publisher does not make any contractual promise to perform the review. If there is no libel review and the publisher is sued for libel, the book author remains financially responsible to defend the publisher.
If the publisher performs a pre-publication review, the book author is expected to make any changes the publisher or its lawyer demands. Assuming the publisher approves the revisions and publishes the work but still becomes the defendant in a libel action, the book author remains financially responsible for the publisher’s defense.
Disguising Reality in Fiction: Defamation Has No Favorites
Biographers and memoirists often entertain the possibility of transforming their non-fiction work about living people into fiction hoping that no one recognizes their Uncle Harry.
Don’t count on that option. Living persons who have inspired fictionalized book and film characters have successfully sued for defamation even when their names were not included in the fictionalized work. Writing under a pseudonym may help disguise the book author’s relationship to Uncle Harry but he could still be recognizable depending on the story’s setting, the book author’s name, other characters, or related events.
Free 15-Minute Consultation with a Libel Lawyer
Our services begin with a free 15-minute consultation. You can tell us what you need and we’ll talk about how we can help. Current clients include:
- Authors
- Joint Authors
- Self-Publishers
- Ghostwriters
- Work-for-Hire/Freelancers
- Book/Writing Coaches
- Editors
- Bloggers
- Literary Agents
We Accept PayPal and Credit Cards
Payment Plans Available
It can be far more expensive and problematic
to hire an attorney to take action about a contract after you sign it
than it is to hire a literary attorney to review and explain
the contract’s terms before you sign it.