Going Behind the Curtain: FAQ on Publishing and the Legal Issues of Hiring a Ghostwriter

Every year, dozens of civil lawsuits are filed that included allegations of libel or defamation.

Most of the time, these things are obscure cases that never reach the headlines, but nevertheless cost both plaintiffs and defendants sizable sums for legal fees and court costs.

Some cases, though, such as Jesse Ventura’s case against Chris Kyle’s widow or the suit filed by Terry Bollea (aka Hulk Hogan) against Gawker Media, have gained far more notoriety.

The notoriously litigious nature of the United States leaves many would-be authors with plenty of unanswered questions.

Can I write about living people?

Can I quote songs in my manuscript without inviting a copyright suit?

What about pictures do I need to get permission to print those?

We field questions like these every day, and we recognize that any author must navigate plenty of legal pitfalls to be successful.

Below we’ve compiled a list of the most frequently asked legal questions we hear about writing and ghostwriting.

Is the practice of ghostwriting legal?

Yes, absolutely. It’s a great way for leaders and experts to enlist the help of a seasoned writer to help craft and hone their message.

People can’t be great at everything, and while some have fantastic abilities to govern or lead a business, they may not be the most effective at communicating the written word.

At its core, there is some debate as to whether ghostwriting is a form of plagiarism. As David Rothschild, a representative of iThenticate.com, has written, even though ghostwriting is essentially a form of plagiarism, the agreements put in place between authors and ghostwriters provide for the legal consent required for authors to take credit for ghostwritten works.

What items should an author be sure to include in a collaboration agreement with a ghostwriter, to provide legal protection?

This is a complicated question — publishing law constitutes an entire realm of American jurisprudence. However, according to Alan Kaufman, an attorney specializing in publishing law and a former General Counsel to Penguin Books, “one always wants the issues determined upfront in a collaboration agreement, which covers compensation, the grant of rights, late or unsatisfactory delivery, credit, copyright.”

Can a ghostwriter claim that they own the work resulting from our collaboration?

If the issues of credit and copyright are addressed in a collaboration agreement, then a ghostwriter can’t violate that agreement and claim the resulting work. This is why it’s so important that very clear boundaries and expectations be settled upfront.

If structured properly, a collaboration agreement between author and ghostwriter can address all of the above-mentioned items. What’s more, agreements can also include a confidentiality clause or other restrictions against your ghostwriter using any proprietary information that you disclose for their own benefit.

If a ghostwriter, editor, or someone else reviews a book, what keeps them from stealing it?

Per Mr. Kaufman, if you send a work to someone for review, they can’t legally steal it and claim it as their own. “The U.S. Copyright Act states that copyright subsists in whatever is created from the moment of creation. So, copyright protects you.” Most collaboration agreements provide for the author’s ownership of any product resulting from the work of a ghostwriter, meaning that anything a ghostwriter writes while working on the client’s book or article is that client’s property.

These are just some of the legal issues between client and ghostwriter.

In the process of writing, a number of separate considerations need to be made for specific content, including quotes, references, and characterizations.

Here are some of the questions we frequently hear about these more technical aspects of writing, which a professional writer can help to navigate. In today’s world of self-publishing, these concerns are especially relevant.

How can I avoid getting sued if my book or article is about real people?

As many defendants in civil cases will attest, this can be a tricky area to navigate. According to Alan Kaufman, it’s important to understand that “real people are protected in two ways.  First are libel laws, which protect from defamation.  Secondly, private individuals are protected by the laws of privacy.” If a book might be controversial, an author can always have it reviewed by legal counsel to assess their potential liability.

What criteria have the courts historically used to define libel or defamation?

Business attorney and author Helen Sedwick penned the Self-Publisher’s Legal Handbook in 2014, and she speaks in-depth about these issues. As she has written in a detailed post on her website, in order to prove libel, someone must prove that an author maliciously or negligently published a lie about someone who can be identified and that hurts their reputation. If any of these qualifications are unmet, then it isn’t libel. For instance:

If the author publishes something that is true, that’s not libel.

If an author publishes a lie about someone who can’t be identified based on the published material, that doesn’t constitute libel.

If the statement doesn’t actually hurt the subject’s business or career, or hold them up for public hatred or ridicule, then that’s not libel. Simply publishing something offensive or insulting is not sufficient.

What about the invasion of privacy?

This is another subject on which Ms. Sedwick has written in detail. She indicates that privacy laws protect people from having embarrassing or unpleasant information published about them that (in the words of Ms. Sedwick) “is offensive to ordinary sensibilities and not of overriding public interest.” Most importantly, however, the person must have a reasonable expectation of privacy. Public remarks or conduct, in other words, would not be protected by privacy laws. Celebrities and other public figures, it is noted, have little expectation of privacy and (within reason) can usually be written about without their permission.

Can I quote songs in my writing without opening myself up to a lawsuit?

The short answer is yes, if done correctly. Music companies tend to be aggressive litigants, so this is an area where authors need to exercise caution. Attorney Alan Kaufman encourages writers “not to use more than a couplet.”

Can I quote other books?

To a certain degree, quoting other works is considered “fair use.” However, it’s worth noting that this is based on the total amount of original material used, relative to the total size of the book or article that is being quoted.

Unfortunately, there is no consensus on just what percentage constitutes plagiarism.

Much of the debate has been focused within academia, with many universities relying on plagiarism checkers such as TurnItIn. These checkers often limit the amount of directly-quoted text to 15% or less — however, this may still be too much if everything quoted is one continuous block of text. Some more stringent universities raise red flags if more than seven consecutive words of text show up in a paper that’s run through a plagiarism checker. For a few, the limit is even less: five words.

None of this is to say that an author can’t use the text, only that a citation needs to be included to give proper credit to the original.

The bottom line here is that when in doubt, it’s best to give credit to another author — even if it’s just for an idea.

How can I determine what pictures I can legally use?

Dr. Curtis Newbold is an Associate Professor of Communication at Westminster College, where he oversees the Master of Strategic Communications program. In addition to teaching many courses on communications, he has written extensively about the fair use of photographs. He has outlined the criteria that authors should consider when deciding if a photo can be used. A more detailed breakdown can be found on his website, but here are a few examples of photographs that can be used:

Pictures that you took yourself that are based on your own concept, for which you own all the rights. More on this later.

Pictures that someone else took, but which you are using in “an education or research setting, for limited non-profit uses.” Dr. Newbold also notes that copyrighted images shouldn’t be printed for personal or decorative purposes.

Pictures someone else has taken and you’ve secured permission to use, or for which you’ve purchased the rights (such as through a stock photo company or from a photographer).

Sara Hawkins is an attorney specializing in advertising, social media, and intellectual property. According to her, if you aren’t sure whether the photographer has released their rights to a picture, it’s best not to use it until you’ve made that determination or received express permission to use the image. There are still a lot of grey areas with plenty of exceptions. Authors are always encouraged to take as much caution as possible when dealing with potential copyright issues.

Are there any restrictions on using images that I’ve taken myself?

There are a number of issues at play there. First, if you want to publish a picture of your own, you need to consider whether the photo was truly original (not designed to resemble or mimic someone else’s photograph).

Second, you need to consider where you were when the photograph was taken to decide whether it may include anything proprietary. Generally speaking, if the picture was taken in your own home or while you were in public, then this shouldn’t be a concern.

If my pictures are of other people, do I need to get permission from the people in the pictures? What if they’re old pictures and I can’t locate the people in them?

In cases where authors want to use images that they took of other people, there are a few issues at play, including privacy laws and potential defamation or misappropriation, according to the Digital Media Law Project.

First, most states prohibit the use of “someone else’s name, likeness, or other personal attributes without permission for an exploitative purpose.” This would violate the person’s “right of publicity” — their right to make money from their name or likeness. This concern arises most often with advertising or other promotional materials. However, it can also be the case in other works like books or articles, which an author is publishing for commercial benefit. Here again, it’s better to be safe and get permission before using images.

What if I want to use an interview I did with someone in my book?

When conducting interviews to use as source material for a book, it’s a good idea to have interviewees sign a written release acknowledging that their responses may be published. If you are recording an interview, it can be sufficient to include a stated acknowledgment on the recording that the interview is being recorded, and the interviewee understands that what they say may be published. By doing so, they not only acknowledge that they’re being recorded but also that they give their consent for the interviewer to use their quotes for publication.

The same principle goes if you plan to conduct recorded interviews by phone.

There are some strict laws about phone recordings. Kelly Yamanouchi, a business reporter for the Denver Post writing for the Society of Professional Journalists, reminds us that “most states require only one-party consent to record. However, 12 states and the Commonwealth of Puerto Rico require the consent of two or more parties.” She goes on to note that, in these cases, it’s not only important to get permission to publish responses in an interview, but also “to take great care when securing permission to record.”

Her suggestion is that writers first ask the interviewee whether it’s OK to record the conversation. Then, after recording begins, it’s a good idea to have the interviewee put their permissions — both for the recording and for publication of their responses — on the record.

What if the person I interviewed has passed away, or I want to use a picture of someone who is no longer alive?

If someone that you’ve interviewed or photographed has since passed away, the right to sue dies with them. However, if you want to use someone else’s photograph, it doesn’t matter whether a person in the photograph has died — you still need to get the photographer’s permission. In fact, even if the photographer has died, their estate can still own the rights to their pictures for decades after their death.

Writing a book is no small or straightforward undertaking.

There are a number of legal issues to weigh, both with regard to the relationships between author, ghostwriter, and publisher, as well as the nature of the material to be published, source material to be quoted, and pictures to be included.


While issues in the former category can be addressed explicitly in a collaboration agreement negotiated and signed upfront, working with seasoned professionals can go a long way toward resolving issues in both of these areas.

Stay on the Write Side of the Law: Steer Clear of Publishing Woes

“A long time ago in a galaxy far, far away….” there was a copyright lawsuit between Star Wars and Battlestar Galactica.

Stars Wars had captured the hearts of adoring fans across America, and Universal Studios wanted to jump on that bandwagon, so they launched Battlestar Galactica.

But Star Wars execs saw one too many similarities in the Battlestar Galactica storyline, and the lawsuit landed in federal court. Battlestar Galactica was cancelled and the parties settled out of court, but the case illustrates the ever-present battle against copyright infringement.

That phrase–copyright infringement–makes writers cringe.

After all, you don’t want to land in court just for doing your job.

But you need to do your job within the bounds of the law, even though you may not exactly know the specifics of that law.

Read on for a quick romp through media law*, and take the first step to protecting yourself against legal missteps.

For the Record

You can only type so fast.

In interviews, it’s inevitable that you’ll miss jotting down one thing or another.

So recording interviews isn’t really optional; it’s proper professional form.

Fortunately, the law is usually on the side of writers using recording devices.

You can usually record, film, or broadcast any conversation if all parties consent.

If you’re conducting an in-person interview and your recording device is in plain view, that equates implied consent–in other words, you’re standing (or talking) on firm legal ground.

Phone conversations are a little more nuanced.

Federal law requires only one-party consent to recording a phone conversation, unless the purpose is criminal or tortious.

That one party can be the writer who is recording.

Many states have similar standards. For instance, Texas requires the consent of at least one party in an oral communication.

In one-party consent states, this law would also allow a writer to record conversations in public.

Beware, that calling a person in another state places you under the laws of that state.

About a dozen states require two-party (or more, usually all parties to a conversation) consent to recording a conversation.

So, unless you want to research the recording laws of each state before making a phone call, it’s best to just make it your standard practice to inform the other party that you’re recording the conversation.

Texting Up Trouble

Similar laws govern text messages or electronic communications.

So what type of consent do you need before using quotes from electronic communications?

“Wireless consent is ambiguous,” says Rick Walker, a Dallas-area attorney and Professor of Media Law and Regulation at the University of North Texas. “It depends on the facts of each circumstance.”

Walker suggests that before you publish any wireless communications, you ask yourself questions like:

  • Where did you get the wireless communication?
  • Can you verify that the source is authentic?
  • What is your intent with the communication? Is your intent to harass, embarrass, or defame someone? If so, you’re headed toward shaky legal ground.
  • Is it public information or a private confidence? If it’s publicly disseminated on social media, then there’s no expectation of privacy.
  • Is the person in question a private citizen or a public figure? In general, public figures should have less expectation of privacy than private citizens.
Image by Steve Buissinne from Pixabay

Crossing the Legal Line

If you secretly record someone, using a digital recorder or hidden camera, the person you recorded may lob trespass and intrusion of privacy claims at you.

These claims are shakier if the recording takes place in an office or commercial establishment open to the public.

But courts frown upon secretly recording people in their own homes, where they have a reasonable expectation of privacy.

Celebrity wrestler Hulk Hogan became embroiled in one such famous controversy.

Gawker posted a sex tape of Hogan aka Terry Gene Bollea, filmed without the celebrity’s consent. Bollea sued, won $130 million in damages, and single-handedly bankrupted Gawker.

Even worse than civil litigation, wrongful recording could land you a felony conviction.

In Texas, illegally recording an in-person conversation or electronic communication or disclosing is a felony offense.

So, think twice before you attempt to enhance your book with a juicy expose obtained through secretly recording conversations.

Sign on the Dotted Line

Even if a source knows you’re recording the interview, you may need to go one step further to protect your back and your bottom line.

Particularly with interviews for books, consider having your interviewee sign a release.

If you discuss sensitive or controversial material, this becomes prudent.

Having a well-written and signed release offers some protection against claims of libel or invasion of privacy, should your source decide that the published depiction is unflattering.

A recording of the interview that supports your assertions offers additional protection.

Many interview subjects do present special requests–perhaps wanting to read or edit your story before it is published, to remain anonymous, or have some comments kept “off the record.”

Document any request or agreement you make with interview subjects, and abide by those agreements.

Breeching such a spoken or written agreement could leave you liable for monetary damages.

Image by Andreas Breitling from Pixabay

Note those Quotes

And in quoting someone, make sure you avoid both plagiarism and copyright infringement.

The ideas overlap similar areas of law and ethics.

But plagiarism, as harrowing final exam warnings remind students, involves claiming someone’s work as your own, which is largely an ethical issue.

Copyright, however, is protected by law.

Holders of copyright own the rights to their work, including the rights to: reproduce the work, create derivative works based on it, distribute copies of the work, and publicly display or perform the work.

When quoting, aim to precisely use the words of the quote.

A writer must evaluate both the legal and ethical concerns involved in modifying quotes.

“My opinion is that a journalist should never modify quotes,” Walker says, “The definition of modifying could be either unprofessional or illegal, depending on how much liberty the writer takes in modifying.”

Walker asserts that though it’s not optimal professional form, modification is usually legal if it doesn’t materially alter a source’s statement.

The Supreme Court weighed in on this issue in Masson v. New Yorker Magazine.

That case involved an outspoken Mr. Masson, the director of the Sigmund Freud Archives.

Masson became disenchanted with Freudian theory, was fired from his position, and subsequently granted an interview to the New Yorker Magazine.

The writer paraphrased and inferred Masson’s rather unflattering statements, placing these paraphrases within quotation marks.

Masson sued the magazine for defamation, while New Yorker argued that its statements were protected under the First Amendment.

The Supreme Court disagreed, ruling that the First Amendment’s free expression clause does not protect distortions of quotes.

Nevertheless, writers do have some leeway in printing material with minor factual inaccuracies.

Under the substantial truth test, a writer can get away with conveying minor factual inaccuracies as long as those statements don’t materially alter the substance of the source’s communication.

In addition to factual content, it’s just as import to maintain proper context for the quote.

This rule trips up everyone from students to famous journalists.

For instance, John Stossel anchored a story purporting that televangelist Fred Price misused funds intended for his religious organization. On the 20/20 piece, Price is shown saying, “I live in a 25-room mansion. I have my own $6 million yacht. I have my own private jet, and I have my own helicopter, and I have seven luxury automobiles.”

Price did say these words. However, he said them during a sermon illustrating a hypothetical person whereas ABC insinuated that he was speaking of his own wealth.

The inevitable lawsuit followed, and the parties settled out of court.

If you’re worried about publishing a controversial story, remember that truth is a defense against defamation.

So, if you’re sharing factual, research-based claims, you’re protecting yourself against allegations of libel or slander.

Stick to a Fair Use Policy

Fair use allows limited use of copyrighted material without asking permission.

If you’re commenting on, criticizing, or parodying material, it usually falls under fair use policy and you are not likely to be found liable for copyright infringement.

The fair use statute looks at four factors in determining fair use:

  1. Purpose and character of the use (commercial, educational)
  2. Nature of the copyrighted work
  3. Amount of the work used in relation to the copyrighted work as a whole
  4. Effect on market value of the copyrighted work.

In the famous 1841 copyright case that provided the basis for Fair Use laws, Judge Joseph Story said, “Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”

But, to distill the message of the wordy Judge Story, what are those distinctions? How much copyrighted material can you quote before eclipsing fair use?

Unfortunately, there are no firm guidelines.

In general, the more material you use, the less likely it is to be considered fair use.

If you’re eclipsing 50% of borrowed material, appealing to the same market as the original work, and negatively affecting the original work’s economic gain, crying “fair use” probably won’t get you far.

On the other hand, if you quote only a small amount of material, use it in a work substantially different from the original, and appeal to a different market, you likely have a solid defense against copyright infringement.

Finally, a Freebie

Good news!

There is one source that isn’t going to try to sue you for pulling its quotes–the public domain.

The public owns these works, and anyone can use them without getting permissions.

Works enter the public domain through:

  • Copyright expiring
  • Copyright owner failing to renew its copyright
  • Copyright owner placing the work in the public domain
  • Inapplicable copyright law

The bottom line in principles of copyright law?

The law is still evolving with a rapidly-changing digital media landscape.

If you use third-party content without permission, you risk a lawsuit.

But if you walk out your door in America, you risk a lawsuit.

So adhere to stringent professional ethics, write or broadcast with integrity, and balance these principles with basic media law knowledge.

Not only will you be able to look yourself in the mirror, you’ll put yourself in a good position to defend against possible claims.

*The information presented here is intended for informational purposes only. Copyright law differs by state, and you should consult a knowledgeable copyright attorney with specific legal questions. The information presented here is not a substitute for consulting a licensed attorney for specific legal advice.

“Top Lawyers” Bio

Your team doesn’t have the extra time to take on a large-scale, writing-intensive project like overhauling your website or project managing a new marketing campaign – but you also don’t have time to train and micromanage an inexperienced, fresh-out-of-college freelancer.

You’ve written a draft of an article, whitepaper, or case study, and you need a fresh set of eyes to offer feedback and suggestions for improving clarity, general flow, or organization.

Your firm needs someone to take over all aspects of a major writing project, from planning and organization to writing and general project management – and you’re working with a tight deadline.

Your team needs well-written, engaging marketing collateral that connects with potential clients and clearly communicates why you are the best attorneys for the case.

If you’re like most of our clients, you probably identify with one (or all!) of these scenarios. You need a professional, experienced writer who will step in and learn your firm’s unique service offerings, pain points, differentiators, and ideal clientele – in a day or two. You need a combination project manager/editor with an eye for quality content and an unwavering commitment to your timeline.

A Smart, Responsive, Deadline-Driven Writing Team

The Writers For Hire has decades of experience providing writing, editing, and project management services for clients in dozens of specialized, highly technical industries.

  • Your new writing team includes a project manager, writer, and editor who work collaboratively, becoming a seamless extension of your in-house teams.
  • Award-winning project management software means we can organize massive amounts of content efficiently.
  • We are comfortable with quick turnaround times.
  • Your writers are adept at coming up-to-speed fast to take on complex long-term and last-minute projects.
  • Our smart teams have backgrounds in fields such as legal, healthcare, IT, science, engineering, and oil & gas.

Consider us for projects in:

Corporate Websites

Whether you’re giving an outdated site a complete overhaul or building a new site from scratch, our team can handle every part of the project – including content development, project management, navigation planning, SEO strategy, and SME feedback coordination.

Thought Leadership

Position your firm’s SMEs as industry experts with a series of white papers or thought leadership pieces, including blogs, ebooks, landing pages, and trade editorial.

Editing

Our seasoned editors can review your existing material – whether it’s a case study, a whitepaper, or a piece of corporate communication – and offer helpful, constructive feedback.

Proofreading

Our team can provide high-volume proofreading services for even the most demanding workloads, ensuring accurate, error-free drafts of your firm’s written material. We can also codify proofreading guidelines for your entire organization.

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Writing a Book for Your Business

Thinking of writing a book? Writing expert Wintress Odom, owner of The Writers for Hire, says you need to answer a few essential questions before you get started. In her interview with the host of The Price of Business, Wintress discusses how to determine whether writing a book would be beneficial to your business. Specifically, she talks about:
• The different reasons for writing a book.
• Setting realistic expectations.
• Focusing your thoughts.
• Other mediums that can support your book.

Click the play button below to listen to the interview.

Everything About Wikipedia, Part 5: Content

At this point, if you’ve been following our Wikipedia series you’ve got a pretty good grip on the rules: You know how to determine a topic’s Wiki-appropriateness. You also know how to find good, third-party sources, and you understand how to keep things neutral.

So, now what?

Now, we talk about content.

Determining Length

Wikipedia is funny: You could practically write a book about all of the rules governing sources, notability, and neutrality. But when it comes to article length, there’s not much to go on. There are a few general guidelines, but there’s very little in the way of hard-and-fast rules.

Here’s how Wikipedia sums up its guidelines on article size:

See? Not super-helpful, or super-specific. On one hand, this lack of rules is good – you have the freedom to make your article as long as it needs to be. On the other hand, though, this freedom can be a little daunting: How do you know what to include? How do you know what to leave out? How big is “too big”, exactly? How small is “too small”?

What to Put In, What to Leave Out – and How to Format It

There’s no single answer or magic formula that can help you figure out exactly how long your Wiki article should be – but you can use some of the following guidelines to help you decide what information to include, and how to organize it.

Start with a helpful lead section.

A “lead” is an introduction or overview that should summarize the contents of the article. A lead can be anywhere from a sentence or two to a few paragraphs in length, depending on the topic and the length of the article.

When we read this, we get all the important information: We know what Firefly is, we know who wrote it, and we know what kind of TV show it was. You can read on to get more in-depth about the episodes, cast, critical responses, and so on. But if you didn’t read any farther than the lead, you’d walk away with at least a basic knowledge of the topic.

Include important, relevant details.

Remember that Wikipedia is an encyclopedia. Although the online format allows for longer articles than you’d find in a traditional, printed volume, it’s best to stick to notable details that are appropriate for a general-interest audience.

Still not sure about what to include or what to leave out? Check out a few Wiki articles on similar topics, people, or companies. It’s always helpful to look at examples before getting started.

Use the search field in the top right of the page, or check out the list of Wiki categories:

Use sections and headers to group information.

Putting information into sections is a good way to keep your Wiki article from feeling too long. Plus, because most people will be reading your Wiki article on a screen, headers and sections will make your article easy to scan.

Use bullets and/or tables when appropriate.

Although Wikipedia articles should be primarily written in prose, a bulleted list or two within an article can make lengthy lists easier to read and understand. When you’ve got a long list of information – such as a list of awards won, positions held, published works, etc. – you can avoid the “wall-of-text” look by using bullet points.

You can also use tables to organize more complex lists of information. On the “Firefly” page, you can view a table that lists the details of all 14 episodes:

Most importantly, use good judgment.

There really is no set length when it comes to Wikipedia articles. The best way to ensure that your article isn’t “too short” or “too long” is to use common sense and good judgment. In other words, your article should be as long as it needs to be to get the point across.

Don’t worry about length. Don’t worry that your article about Company XYZ isn’t as long as the article about Company ABC. The best Wikipedia articles contain useful, neutral information.

That’s it for now. Still have questions? Stay tuned for our final blog of the series where we’ll wrap things up and answer some common Wiki-related questions.