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Publishing Law

"i Can't Get No": The Publisher Satisfaction Clause, Starstruck Strikes Out, Further Readings

The body of law relating to the publication of books, magazines, newspapers, electronic materials, and other artistic works.

Publishing law is not a discrete legal topic with its own laws. It is a collection of often disparate legal areas, such as contracts, INTELLECTUAL PROPERTY, TORTS, and the FIRST AMENDMENT.

Publishing is the act of distributing or otherwise making public a visual or literary work. The key players in publishing are publishers and authors. Publishers are those persons or organizations that dispense information to the public. The term author commonly describes writers and journalists, but where publishing is concerned, the term also describes photographers, filmmakers, video artists, and other artists whose work is published. Most publishers designate a lawyer to review a publishable work and identify its potential legal pitfalls. This person, called a legal liaison, may confer with outside legal counsel to ensure that the publication does not ensnare the publisher or author in legal conflict. A legal liaison should be familiar with the many legal issues peculiar to publishing, including COPYRIGHT and TRADEMARK infringement, sales, advertising, distribution policies, subscription agreements, special sales arrangements, insurance, free speech, tax matters, and antitrust concerns stemming from the publisher's membership in trade associations. Other employees of publishers, such as editors, also should be trained to spot potential legal problems with a publishable work and bring them to the attention of the legal liaison before publication.

Publishers may be held liable for omissions, mistakes, and transgressions of their authors, as well as their own omissions, mistakes, and transgressions. One of the first and foremost concerns of publishers is copyright and trademark issues. Publishers should conduct thorough research on copyright and trademark issues before publishing a work. Among other things, publishers should ensure that copyrights are properly registered; the appropriate copyright notice is placed in each work; copyrights for work published prior to the effective date of the most recent federal copyright act, the Copyright Amendments Act of 1992 (2 U.S.C.A. § 179 et seq.), are renewed; the work does not violate the copyrights or trademark rights of another publisher or author; all copyrights are duly affixed to the work; all copyrights from source materials have been released or paid for; the work does not defame anyone; the work does not invade a person's right of privacy; all obligations to authors, creators, and illustrators under the contract are being met; information from sources can be verified or has been confirmed; and any material derived from a dialogue between real people that is placed in quotation marks correctly sets forth the actual words spoken.

Failure to confirm quotations can lead to lengthy litigation if the quotations defame the speaker. In Masson v. New Yorker Magazine Inc., 686 F. Supp. 1396 (N.D. Cal. 1987), aff'd, 881 F.2d 1452 (9th Cir. 1989), and superseded, 895 F.2d 1535 (9th Cir. 1990), and rev'd, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), on remand 832 F. Supp. 1350 (N.D. Cal. 1993), 85 F.3d 1394 (9th Cir. 1996), psychoanalyst Jeffrey M. Masson sued New Yorker magazine, its publisher Alfred A. Knopf, Inc., and freelance writer Janet Malcolm after Malcolm wrote a quite unflattering article about Masson for the New Yorker that included quotations by Masson that Malcolm could not substantiate. The defendants ultimately prevailed but only after more than a decade of litigation.

Some publishable works run the risk of invading a person's right of privacy. A person whose privacy is invaded may recover damages for the loss of privacy, for mental and emotional distress suffered as a result of the intrusion, and for any specific injuries or financial losses stemming from the intrusion. The four basic types of privacy invasion are public disclosure of private and embarrassing facts, publicity that places an individual in a false light, intrusion into seclusion, and misappropriation of a person's name or likeness for commercial advantage. Generally, public figures do not receive as much privacy protection as do private individuals.

Publishers also must ensure that a work does not infringe upon a person's right of publicity. The right of publicity protects a person's exclusive right to control the exploitation of his name, likeness, or persona for commercial purposes. Generally, to qualify for this protection, the person must have commercially exploited his persona. A publisher violates a person's right of publicity by publishing, without consent, the person's performance, name, or likeness for advertising or trade purposes.

Several other torts may be committed in the publication of a work. Among other torts, publishers should be on guard for intentional or negligent infliction of emotional distress, incitement and negligent publication, breach of confidentiality, TRESPASS, assault, and BATTERY. Trespass, assault, and battery are most common in news-gathering situations, where the competition to break stories can lead writers, photographers, and video artists to engage in questionable behavior. Battery, for example, can occur if a photographer or interviewer intentionally touches a subject in an offensive way. An assault occurs if a person puts another person in reasonable fear of a harmful or offensive physical contact, and a person commits trespass by entering on land without permission of the legal occupant.

Infliction of emotional distress is tortious conduct that causes severe emotional distress to the subject of a work. For example, a publisher could be held liable under this theory of recovery for printing a photograph in a pornographic magazine and incorrectly identifying the person in the picture if the identified person experiences work interruptions, nightmares, terror, humiliation, or other emotional distress as a result. A plaintiff in such an action may recover for both physical and mental harm resulting from the tort. A subject need not suffer physical or bodily injury to recover damages for this tort; emotional damage is sufficient. The main issue in such torts is whether the conduct by the author or publisher was so extreme and outrageous as to permit recovery for the subject's emotional distress.

The tort of incitement is speech directed to inciting or producing imminent lawless action that is likely to incite or produce such action. Such speech must be explicit to constitute incitement. Publishers generally will not be held liable if warnings are included in the work or the publication does not produce a CLEAR AND PRESENT DANGER of imminent injury. Negligent publication is the unintentional publication of incorrect facts that results in injury. This tort requires that the publisher owe a specific duty of care toward the injured party. This duty is difficult, but not impossible, to establish. If, for example, a publisher markets a flight manual to airplane pilots and the manual contains errors, the publisher may be liable for injuries if an airplane crashes because its pilot followed the faulty information.

Breach of confidentiality generally arises from an individual's assertion that the publisher had a duty not to disclose certain information about her. The duty may be expressed in a written or oral agreement between the parties. It also may be implied or required by law. Such statutes are designed to protect an individual's general privacy interest, protect certain sensitive information, or shield certain government information or functions from public knowledge. For example, some states maintain statutes that prohibit the publication of the full name of a juvenile accused of a crime. Another example is the federal statute that creates a CAUSE OF ACTION against persons who tape conversations without consent for criminal or tortious purposes (title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. § 2520 [1997]). If a publisher or author breaches confidentiality, she may be liable to the exposed party for injuries and financial losses stemming from the publication. In some states breach of confidentiality does not itself constitute a cause of action, but aggrieved plaintiffs may seek recovery under a breach of contract or invasion of privacy action.

The First Amendment guarantee of free speech, and free press is a frequent refuge for publishers. Publishers assert the First Amendment as a defense to claims for invasion of privacy, breach of confidentiality, intentional or negligent infliction of emotional distress, incitement and negligent publication, breach of confidentiality, and right of publicity claims.

In some situations the First Amendment also provides members of the press a right of access to information. If the press has historically been granted access to a certain proceeding, and if press access would further societal interests, journalists may have a right to be present at a proceeding or to gain access to certain information (Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 [1980]). In Richmond, the Supreme Court held that a First Amendment right of access prohibited trial courts from excluding journalists and the public from criminal trials.

The Supreme Court has recognized a journalist's right to access judicial documents, but it has yet to recognize a constitutional right to access all government records. However, most states, as well as the federal government, have enacted so-called sunshine laws, which, with some exceptions, give the general public access to public records.

Most publishers maintain insurance against risks of loss. In-house or outside insurance specialists may negotiate coverage for an assortment of risks, ranging from personal injury and property damage to media perils such as invasion of privacy, copyright and trademark infringement, UNFAIR COMPETITION, injuries related to faulty advertising, errors and omissions in the published product, and DEFAMATION, an intentionally false communication that injures another person's reputation or good name.

Only a handful of insurers protect against media perils because of the large potential losses involved. The few insurers that do protect against media perils do not provide coverage for all forms of media liability, and some do not offer coverage for both damage awards and legal defense costs. It is common for insurers to automatically cover authors of books in blanket policies for book publishers, but software, newspaper, and magazine publishers usually must obtain coverage for their writers by negotiating their inclusion in blanket policies.

Publishers often find that they are in legal conflict with their own authors. The conflicts between authors and publishers are usually contractual in nature, and courts use ordinary contract law principles to resolve the cases. One of the most common complaints of authors is that a publisher did not sufficiently promote their books. In deciding such a claim, a court generally looks at the facts surrounding the case to determine whether the publisher used its best efforts to market the book. Another point of conflict for authors is the satisfaction clause, a boilerplate clause in book contracts that allows publishers to reject a final manuscript and demand the return of any advances if the work is not satisfactory to the publisher.

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