Sunday, August 03, 2014

Lessons From A Pyrrhic Victory

While it would not be exactly true to say that I have a "fondness" for any underdog in any fight, I dislike unfairness, particularly when the Media piles on and stirs the pot with half truths and --what I perceive as-- maliciously inaccurate reporting.

I am talking about a recent libel suit against the estate of a deceased author, in which the majority of a jury allegedly found for the plaintiff.

Almost every talking head that I have heard has vilified the plaintiff and focused on emotional buzzwords equivalent to "motherhood" and "apple pie" to suggest that the outcome of the trial was an outrage simply because of the buzzwords associated with the defense.

This might give comfort to authors who may consider libelling (or allegedly libelling) a public figure for profit, especially when pundits on TV asseverate that anyone can publish anything (regardless of truth) about any public figure.

Perhaps the supermarket tabloids do so with impunity, but perhaps they have better insurance policies than the average debut author.

Reality check. Word Castle Publishing kindly purblishes online a sample contract, so I have made fair use (I hope) of a couple of pertinent clauses which are typical of my experience with four other publishers whose contracts I have read, but which are supposed to be confidential.

Author Warranties
3.        The work does not infringe upon any copyright, privacy rights, rights of a third party, or any common law or statutory law.
4.        The work does not contain any material of a libelous or obscene nature.

B.       Author Agrees to hold Publisher harmless and indemnify the Publisher against any claim, demand, action, suit, proceeding or any expense whatsoever, arising for claims of infringement of copyright or proprietary rights, or claims of libel, obscenity, invasion of privacy, or any other unlawfulness based upon or arising from the publication or any matter pertaining to the work.
C.       Author warrants and represents that to the best of Author’s knowledge and belief, all statements of fact contained in the work are true and based on appropriate and diligent research. A note may be added to the work to show proof of research completed if Author so desires.

Please notice such words as "privacy", "libellous", and "based on... diligent research". Also notice "indemnify the Publisher" and 'hold Publisher harmless". In theory, that means that the Publisher and the Publisher's insurance company will not pay out.

Notice also that most publishers put the entire onus of any breach of the above-mentioned warranties on the author and the author's heirs and assigns.

Interestingly, there appear to be three authors of the book, but only one is mentioned as the plaintiff. I wonder why. No matter.

Check your own contracts. Then read this account of the controversial trial. It is probably not typical.... in that the Publisher and the Insurance company is paying up.

I visited Amazon to check out the front matter of the allegedly true memoir in question, but Look Inside is not available. Preview is not available on Barnes and Noble, either.

Scribd came through with the front matter disclaimer:

"The events that happened in this book are true, recounted from the best of my memory.... we've reconstructed dialogue from memory which means that it may not be word for word...."

I guess, if you put dialogue into the mouth of someone else, and you admit in the front matter that what you remember that he (or she said) may not be word for word.... you shouldn't have a legal leg upon which to stand.

This has been a highly instructive saga.  We could all do well to learn from it, even if most of us write  science fiction and fantasy, and our front matter disclaims any resemblance of our alien characters to any real person alive or deceased.

All the best,
Rowena Cherry

alien romances

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