2018 BIO Conference Panel – New Wrinkles in Literary Law

Kirk Schroeder, an attorney who specializes in entertainment and the arts, warned his audience: “There’s always something in a book, particularly nonfiction that can arise and surprise an author.” One issue that can bedevil biographers is fair use. Schroeder noted that what constitutes fair use often “comes back to haunt you.” Fair use applies to how much a writer can use from a copyrighted work without seeking permission from the copyright holder. Material created before 1923 is no longer under copyright. Copyright protection in the United States lasts for 95 years, and it encompasses a large body of work.

Fellow panelist Eric Rayman, whose practice focuses on media, publishing, and copyright, examined some ways biographers can avoid pitfalls, snares, and traps in a project. He said there is great value in having subjects sign releases, although they are not necessarily required. “At least make sure there is a written record of the conversation.” If using a recording device (including phones), biographers should say that up front, although not all states require that all parties consent. Rayman said, “It can help you,” if push comes to shove, over what was said or the biographer’s right to use. As to “oral promises” to allow the use of a conversation or anything else, Rayman said, “I’d think they can be retracted,” while a written agreement cannot. In short, “a retraction can make trouble for you.”

Moderator Diane Kiesel asked Schroeder about access to materials and intellectual property rights regarding materials given to you but not created by the subject. He then asked a rhetorical question: “What about photos that came from a professional photographer and are now in the possession of the subject?” Can the subject legally hand those images to the writer for his or her use? “They might be in the public domain,” Schroeder said, but that is not guaranteed. So, depending on when the image was made and the applicable copyright statute, “this means you have to get the permission of the photographer. . . . Just because someone gave you the photo, doesn’t mean you have permission to publish.”

If the permission issue or any other issue ends up in court, Schroeder said who pays for the biographer’s legal representation depends upon how the contract is written. Any agreement on the part of the publisher to cover possible legal costs “will go against the advance,” if there is any, “to get an insurance policy.” But even in this arrangement, Schroeder said the insurer may stipulate that the policy does not cover certain points that can lead to lawsuits.

Considering libel, Rayman said, “Truth is a defense.” Regarding what can be written about public officials and public figures, the standing Supreme Court decision is New York Times Co. v. Sullivan (1964). The court unanimously ruled in that decision, which has since been extended to “public figures,” that the plaintiff has to show that the material was defamatory and that the publication or broadcast was done with actual malice and with a reckless disregard for the facts. Both panelists noted, however, that the definition of “public figure” is not clear cut.

Given the broad American defense in these libel cases for writers and publishers, Rayman noted that “libel tourism” has become a way for plaintiffs to seek legal recourse. By going to a judicial system operating under British Common Law, e.g., the United Kingdom and the Commonwealth of Nations, they could bring suit and often win. There is no “actual malice” defense in that system.

Both panelists said that consulting an attorney who specializes in libel or other issues related to publishing isn’t always necessary before entering an agreement with an agent or a publisher. But, Rayman said, “If you’re not sure . . . you might need a lawyer” and not one who handles real estate or family matters, but a specialist.

—John Grady