Publishing A-Z

L Is for Libel

To libel someone is to injure a person’s reputation via the written word (slander is for the spoken word). I recently wrote about indemnification but only touched on this topic. Let’s take a deeper look today.

First, be aware that the laws that define defamation vary from state to state; however, there are some commonly accepted guidelines. Anyone can claim to have been “defamed”; but to prove it they usually have to show that the written statement has all four of the following elements: (1) published, (2) false, (3) injurious, (4) unprivileged.

The first is obvious. Posting something on Twitter or Facebook is “published.” And yet a few years ago, a federal judge ruled that a blogger has the same defamation protection as a journalist. (Read the article here.) But beware that the legal system has been in flux in relation to free speech since that time.

The second means that what was written was wrong. This means writing something untrue. Simply being mean or snarky is not being “false.” I might feel defamed if you write that I’m an idiot, but it doesn’t mean you were wrong. The word “false” has been bandied about quite often, especially in the media. Even satire, like a number of pieces written by the Babylon Bee, has come under attack despite being clearly satirical.

Third, the person claiming they were defamed has to prove they were hurt by it. For instance, the person lost out on a freelance job; was shunned by church members; or was harassed by the press because of what was written. The burden of proof is on the defamed party. For example, J.K. Rowling, famous author, sued a newspaper in England for libel, for an article that “caused distress.”

Last is unprivileged words. My understanding is that this was originally defined, in part, to protect someone on the witness stand in a trial or giving a deposition. We want a witness to tell everything as they understand it without fear of saying or writing something defamatory. A legal testimony would be considered privileged. Writing something injurious and false on your blog is not privileged.

One other nuance to consider. A government official or a famous person has a higher burden of proof for defamation than the average person. When government officials or a famous movie star or a famous athlete are accused of doing something wrong, they have to prove all of the four above elements of defamation and must also prove that the writer acted with “actual malice.” The definition of “actual malice” was outlined by the Supreme Court case decided in 1988 in the famous Hustler magazine versus Jerry Falwell case.

If you are writing something controversial or something that could possibly have someone sue for libel, your publisher may add a clause to your contract that allows them to have a legal reading of the manuscript and ask you to make changes. The clause, in part, looks a little like this:

If, in the opinion of the Publisher, the Work contains material which may involve the Publisher in litigation, the Publisher may elect to engage outside legal, professional or technical expert(s) to review the manuscript. … If the Author refuses to make such changes as are advised by the Publisher or its reviewer(s), the Publisher will have no obligation to publish the Work, and will have the right to terminate this Agreement.

“But what about fiction?” you ask. What if you use a real person, a real business, or a real sports team in your novel? Can you be guilty of libel? Isn’t it “fiction,” as in “not true”? This is a great question, and I recommend reading this brilliant and comprehensive answer from professor Ron Hansen in his speech on “The Ethics of Fiction” (click on the provided link). In simple terms, I’d avoid putting them in your story unless absolutely critical (like historical fiction). It would be an unnecessary distraction from the story itself. For example, in the novel The Natural by Bernard Malamud, the baseball player is on a team called the New York Knights.

Hope this short overview was helpful. These are the broad strokes on the topic. If you want more, read this article on The Legal Guide for Bloggers site. Or see this online slide show for the Carol Burnett versus The National Enquirer case. Or get a copy of The Law (in Plain English) for Writers by Leonard DuBoff and Sara Tugman (Fifth Edition, 2018).

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I Is for Indemnification

by Steve Laube

Publishing is not without risks. Plagiarism, fraud, and libel by an author are real possibilities. Thus within a book contract is a legal clause called indemnification inserted to protect the publisher from your antics.

The indemnification clause, in essence, says that if someone sues your publisher because of your book, claiming something like libel (defamation) or plagiarism etc., your publisher can make you pay the fees to compensate for their losses. This is to “indemnify” which is defined as “to compensate (someone) for harm or loss.” Bottom line: The publisher has the right to hire its own attorneys (at the author’s expense) to defend against these claims.

Doesn’t sound like a happy clause does it? But you can understand why it is there. This clause and the Warranty clause are notoriously difficult to negotiate. (The Warranty clause is where the things the author guarantees or warrants are listed; i.e. the book is original, it is not libelous in content, etc. This clause will be more fully covered by me at another time) The language has been written by the publisher’s attorneys and are usually set in stone.

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F Is for Foreign Rights

by Steve Laube

Publishing is a global concern. The new Penguin Random House (co-owned by Bertlesmann from Germany and Pearson from the UK) is the largest publisher in the world. The fourth largest publisher is based in the Netherlands. (See this link for a list of the top 50 largest publishers worldwide.) There are thousands of publishers outside the U.S. most of which publish in their native language. Therefore, in most contracts, the foreign rights or translation rights are negotiated.

Some publishers have a dedicated rights division which handles the licensing of your book into other languages. Your contract defines how any income is to be split between you and your publisher. (It is usually a 50/50 split.) Often we have negotiated with the publisher who is doing the English language edition to also manage foreign language licensed. However our agency has also handled the licensing for book published in Korean, Dutch, German, and Slovakian. It is quite fun to look on our shelves and find our client’s books also printed in Russian, Polish, Czechoslovakian, Indonesian, Spanish, Portuguese, and French.

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A Is for Agent

by Steve Laube

I thought it might be fun to write a series that addresses some of the basic terms that define our industry. The perfect place to start, of course, is the letter “A.” And even better to start with the word “Agent.”

If you are a writer, you’ve got it easy. When you say you are a writer your audience lights up because they know what that means. (Their perception is that you sit around all day thinking profound thoughts. And that you are rich.)

If you are an editor, you got it sort of easy. Your audience knows you work with words and all you do is sit around and read all day. In my editorial days I was often told, “I’d love to have your job.”

But tell someone you are an agent and there is a blink and a pause. If they don’t know the publishing industry they think “insurance agent” or “real estate agent” or “secret agent.” Or if they follow sports or entertainment they think “sleazy liar who makes deals and talks on the phone all day.” I resent people thinking that I talk on the phone all day. (Hah!)

Even at a writers conference I always have someone ask, “What is it that you do?”

Deal Maker

An agent works on commission. Fifteen percent of the money earned in a contract they have sold to a publisher on behalf of a writer. I will be bold to say that any prospective agent who asks you for money up front is someone you should stay away from.

This is the category that most people focus on when defining the role of the agent. But it is only one small facet of what we do. Two months ago I published a list of the activities our agency had recently done as a way to help dispel the myth that we are only deal makers. It is how we earn our living but only a small part of our work.

Don’t get me wrong. This is a crucial part of what we do. Our contract negotiations are critical to the long-term health of the publishing/author relationship. Last Fall I taught a course at a conference called “Landmines in Your Book Contract.” Each time I read one from an “offending” contract there were gasps in the room. There is a good reason to have a professional review any book contract you are ready to sign.

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B Is for Buy Back

by Steve Laube

Many authors are also speakers and as such usually have a book table in the back of the room where the audience can purchase a copy of their book during an event. This can be a very valuable source of income for the author if they have negotiated a “buy back” price (also known as the author’s discount) at the time of signing their book contract.

Check Your Contract Restrictions
It is crucial that you read your contract if you plan on selling copies of your book. No publisher will allow you to resell your books to a commercial account. In other words don’t try to buy thousands of books at your author discount and then re-sell them to Wal-Mart at a special price. That is a no-no. And is a logical restriction.

Also, there are a couple publishers that do not allow you, by contract, to sell your books in any public venue. If you scoff at this after signing the contract and are caught, you are in breach of contract and could face the consequences.

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D Is for Dispute Resolution

by Steve Laube

Pray that it never happens to you. But if there is a situation where you find yourself in a legal battle with your publisher regarding your book contract there are terms that will dictate how that disagreement is handled.

Here is one version from an old contract:

Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the rules of a mutually agreed upon alternative dispute resolution service. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties agree that these methods shall be the sole remedy for any controversy or claim arising out of this Agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

Regardless of the place of its physical execution, this contract shall be interpreted under the laws of the State of XXXXXXXXXX and of the United States of America.

If you read this carefully you’ll see it lays out the rules that keeps a dispute out of the court system and forces the two parties to use binding arbitration instead.

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C Is for Noncompete

by Steve Laube

Both Tamela and Karen wanted “C” to stand for coffee or chocolate since both seen to be must-haves for any writer. Instead I’m going to fudge a little (pun intended) and write about the “non-Compete” clause in your contract. This clause has become the latest playground for negotiations.

Here is a simple version of a non-compete clause:

The Author will not publish or authorize the publication of any other work which would adversely affect the sale of the Work without the Publisher’s prior written consent.

Seems fairly innocuous, and it is. This publisher is basically saying “don’t write another book similar to this one.”

Take a look at this language from another publisher’s contract:

Author will neither publish nor authorize the publication anywhere of any Competing Work, including any Competing Work co-written by Author, in any form equivalent to a Physical Version, Digital Version, or in any form hereafter devised. A “Competing Work” shall be any work on the same or similar topic contained in the Work, treated in the same manner and depth, and directed to the same audience.

Imagine you have written a book about anger in the workplace and then later want to write about anger as a parent for a different publisher. Are those “competing” works? Would the second adversely affect the sale of the first?

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B is for Binding

When a book is physically printed, there are two, among many, decisions that must be made. One is trim size. This means the size of the book itself (5.5” x 8.5”? or something else?). The other is our topic for today. The binding. Binding is the process of gathering the …

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A Is for Advance

by Steve Laube

Whenever I lecture about money the room becomes unusually quiet. Instead of a common restlessness from listeners there is a thrumming impatience to reveal the punch line. The punch line that declares every writer will be rich.

Now that I have our attention let’s turn to the topic of the day. The Advance. This is defined as the money a publisher pays to the author in “advance” of the publication of the finished book. We read about the seven-figure advances in the news because they are unusual and quite substantial. The amount given to everyone else can be rather different. (Read the article where Rachelle Gardner answers the question “What is the Typical Advance.”)

Payout Schedule

The money is not given all at once. There is usually an amount given for signing the book contract and the balance comes at various stages of the writing process. Some pay half on signing, half on acceptance of an acceptable manuscript. Some pay one-third on signing, one-third on acceptance, and one-third on publication. There can be other triggers to create payments like an acceptable proposal for subsequent books in a multi-book deal. We even had one highly unusual situation where the total amount of the advance was divided up over the course of 15 months and the publisher paid the author monthly.

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What Goes on the Copyright Page?

I have an odd habit born of being in this industry for four decades. Whenever I pick up a physical book, I look at the front cover, back cover, and then the copyright page. I know, it’s a rather nerdy thing to do; but you would be surprised what information …

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