No writer wants to be sued. But since self-publishing has become so common, writers for hire are particularly vulnerable.
And they know it.
When Marcia Layton Turner, the executive director of the Association of Ghostwriters, interviewed me during an Association teleseminar, the most common question members posed was “how do I avoid getting dragged into a lawsuit brought against someone who has hired me to write for them?”
If you write for hire, you may call yourself a ghostwriter, collaborator, independent contractor, or garden-variety freelancer. Typically, you are paid to prepare a written work of some kind and to assign your copyright and other intellectual property interests in the content to the hiring party. The hiring party then takes your place as the legal “author” of the work you prepare. Under copyright law, the assignment must be in writing and signed by both the writer and the prospective author.
Many authors engage writers for hire, but it is the authors who intend to self-publish who should concern writers most. Though the term “self-publisher” presumes one possesses and exercises publishing skills, the reality is otherwise. Self-published authors are not likely to consult with an agent, publisher or attorney who can ring the alarm about libelous descriptions, failure to obtain permissions, obscenity, or potential intrusions on rights to privacy or publicity. Some self-published authors have unknowingly evaded a claim or lawsuit only because they never sold or distributed enough copies to bring any attention to the legal potholes in their material.
Although the writer for hire assigns their intellectual property interests to the author, the writer continues to bear risks associated with their original ownership rights. The typical write for hire contract requires you to promise, i.e., “to represent and warrant,” that what you write is truthful and accurate and that your content will not cause anyone in the world to sue the author for libel, failure to obtain permissions, obscenity, or creating content that could potentially intrude on anyone’s right to privacy or publicity. And if the author is sued because a third-party claims your promises are untrue, you also agree to compensate or “indemnify” the author for the author’s legal expenses.
Like a flight captain, the author is entitled to make all the final decisions about the content of the work—decisions that could lead to a lawsuit. No matter how influential you believe you are over the author, you are contractually merely a co-pilot. If you are a professional writer and more aware of potential legal issues associated with publishing than the author is, this lopsided relationship is as ironic as it is traditional.
So, how do you avoid or lessen your liability if the author who paid you to write is sued?
By negotiating a more equitable agreement before you sign it. This is not the answer you will want if you have been served with a complaint. In that case, there is little to do except engage a good attorney. But the future matters. As of today, consider adding the following to your own contracts or those you are offered.
- Pre-publication Review. Include a provision that requires the author to pay for a pre-publication review of the work once it is substantially completed. The review can be performed by a literary or entertainment attorney or a publishing professional who is familiar with the laws that address libel, permissions, publicity, privacy and obscenity. After interviewing the author and reading the work, the reviewer determines whether there is any content that would give a third-party reason to sue the author and/or any writer who performed research and writing services for the author. The contract should entitle you to receive a copy of the reviewer’s conclusions and to be present during any consultation. You need to be as knowledgeable as the author about what parts of the work are vulnerable to a lawsuit since you may have to persuade the author to agree to the recommended revisions as well as make them.
- Limits on Indemnification. If possible, limit your indemnification of the author to (a) the total sum you were paid under the contract and/or (b) a final judgment for damages based on your actual breach of your warranties instead of indemnification based on an unproven allegation.
- Do Not Take Responsibility for the Author’s Mistakes. You should not be liable if the author makes a mistake that leads to a claim or lawsuit. Be sure that your warranty and indemnity provisions exclude you from responsibility for editorial revisions or additions to the work made by the author or any other entity or individual. Keep accurate records of any additions or changes the author makes to your content.
Does adding these provisions guarantee protection from a lawsuit?
No. But the inclusion of even one provision may make the difference between continuing to earn your living as a professional writer or being forced into bankruptcy—liability is that unpredictable. Obviously, writing a children’s story or how-to series of posts about knitting is less likely to keep you awake at night than describing the true-crime adventures of a controversial detective or the sexual peccadilloes of the author’s rich and famous neighbors. Still, untested family remedies may sicken some readers and outdated instructions about training wild animals may injure others.
The point is to make the author aware that if certain passages in the work create a legal minefield, the author should take responsibility for disarming the risks that are most likely to explode.
And if the author is unwilling to assume that burden? You may have two options.
First, consider purchasing professional liability insurance. If that proves unfeasible, the second option is unavoidable–politely terminate the negotiations with the author and look for a hiring party who is more amenable to sharing risk.
Your peace of mind and financial future are worth it.
For more information about the Association of Ghostwriters, see www.associationofghostwriters.com. To contact Denise Gibbon, email dhgibbon@abovethedottedline.com.