Tag s | 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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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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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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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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P is for Preemptive Offer

It can be exciting if more than one publisher is interested in your book. The publishers gather their calculators and prepare to make their offers on the book. Depending on how many publishers are involved in the bidding process (we’ve had as many as nine at once for a property) …

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A is for Auction

When an agent has a client who is wanting to shop for the best deal available from publishers or if there is a particular project that is bound to garner significant interest from more than one publisher, the agent can hold what it called an auction. Or if a project …

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I is for ISBN

by Steve Laube 978-0-310-32533-8 978-0-7814-1042-7 978-1-61626-639-4 No, these are not the plays being called by a quarterback during a football game. They are the ISBN numbers on the back of three different books by three different clients. Kudos to the first person to identify the three titles in the comments …

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J is for Just-in-Time

by Steve Laube

The economics of bookselling are complex and ever changing. There is a method of inventory control called “Just-in-Time” (or JIT) that has revolutionized both the retail and manufacturing industries.

When I began as a bookseller there was no such thing as computerized inventory, at least not in the Christian bookstore business. We used a method call “Stack ‘em high and watch ‘em fly.” Because “If you stack ‘em low, they won’t go.” The idea was to merchandise large amounts of inventory because there was no quick way to replenish your stock if you ran out.

We had sheets of paper with a list of “Never Out” titles in books and music. Weekly we would physically count the remaining stock and if our inventory on a title fell below a particular level we would order more. This was our attempt to time our inventory to match the consumer demand. Titles not on the list would be reordered when that publisher’s sales rep came to visit. The rep would inventory the store and together we would determine what titles to replenish and which ones to let disappear.

Technology Caused Disruption
Computerization changed everything. Using an algorithm the computer determined the speed, or rate, of sale for each title and created order quantities to match the projected demand. This was called “Just-in-Time.” The inventory would arrive just in time to meet the customer wanting that book.

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Happy Birthday Winnie-the-Pooh!

by Steve Laube

On this day in 1926 the book Winnie the Pooh by A.A. Milne was published by Methuen in London. Our household has celebrated this day each year with my wife baking Winnie the Pooh shaped cookies. (Yes, it is a scary thing to be a man in a house of Winnie the Pooh celebrations…)

Some say the real birthday is the day Christopher Robin Milne was given his stuffed bear (August 21, 1921). But since I’m in the publishing business I prefer to mark the date with the publication of the book that started it all. And if you collect rare books I found this listing where Ernest Shepherd’s own copy (he was the illustrator) can be purchased for only $95,000.

So, “Happy 86th birthday!” to Winnie the Pooh.  (Go bake some Winnie the Pooh cookies and celebrate.)

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Inside a Publishing Company

by Steve Laube

I just returned from three days at the Write! Canada writers conference outside Toronto. During my time there I presented a six session lecture series on the Complete Publishing Process: From Idea to Print.

When the entire process is compressed into a short series like that it becomes evident how many people are involved in the publishing of a book at any given publishing company.

Recently Random House did a 10 minute video interviewing a number of key people in-house who are involved in the acquisition, editing, design, marketing, and sales of a book. Having worked for a publisher (Bethany House Publishers) this video made me smile as I remembered many of the great people I was privileged to work with (many of whom are still working there!).

What thoughts does this video invoke for you?

If you are self-publishing, how much of this are you doing yourself?

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