A publisher’s contract with a book author contains a clause referred to as the warranty. The warranty clause requires the author to affirm that the book to which the publisher is acquiring rights is:
- −An original work
- −Not previously published
- −Not in the public domain
- −Owned by the author, who has not otherwise encumbered or transferred the rights being granted to the publisher
- −Not libelous or unlawful
- −Not a violation of anyone’s right to privacy
- −True, or based on accepted standards for professional research, when the book claims to be factual
- −Not an infringement of copyrights, trademarks, trade secrets, or other rights
- −Not a means of instruction that might create harm or injury
The standard warranty in a book contract places full responsibility for all of these matters on the author and releases the publisher from liability. Furthermore, the warranty survives the book contract. In other words, even after publication rights have reverted to the author, the warranty remains in effect, protecting the publisher from future claims involving the book it sold and from the expense of a legal defense against any such claims.
Naturally, the stipulations of the warranty in the publisher’s contract with the author are negotiable—to some extent. However, book publishers considering manuscripts they suspect don’t comply with the terms of a warranty clause usually will have other manuscripts to choose from and can simply reject anything remotely problematic. An almost undetectable flicker of a red flag can be enough to discourage an acquiring editor from giving an author’s work more than a moment’s consideration before rejecting it.
Libel and privacy
Novelists write about what they know and experience. They incorporate in their stories the characteristics and actions of people they have loved, hated, observed, and been deeply affected by. Often, creative writers compile the traits of several fascinating personalities into a single character in a story or novel. The process of fabrication typically overcomes any suggestion that the fictional character actually exists to be harmed by either defamation or the exposure of private matters.
When a writer fails to take the appropriate precautions, the Web can make swift work of corroborating readers’ suspicions that a character in a work of fiction is based on a real person. Entertainment attorney Mark Litwak warns writers that “if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.” Litwak’s summary of the applicable laws was written for filmmakers, but it’s also relevant to fiction writers.
Libel and privacy are complex areas of litigation. To some provocateurs, legally risky writing is a deliberate marketing strategy. Laws that prohibit defamation and invasion of privacy are designed to protect individuals’ reputations, social standing, and careers from writers who recklessly disregard the rights of others. Unfortunately, it’s too easy for the amiable author who means no harm to overlook the potential consequences of merging truth and fiction.
Three decades ago, novelist, poet, and playwright Gwen Davis was sued by a psychologist who claimed she defamed him by fictionalizing actual events in which he’d participated. The ensuing controversy was later described in an article in New York magazine.
Know the laws
Writers, regardless of publication medium (including bloggers), who want to avoid lawsuits can consult the following resources to educate themselves. Being unaware of the laws is never a defense for violating them.
International Libel & Privacy Handbook
(2nd edition) by Charles J. Glasser, Jr.
The Writer’s Legal Guide: An Authors Guild Desk Reference
(3rd edition) by Tad Crawford & Kay Murray
The Authors Guild offers its members media liability insurance underwritten by Axis Pro.