Publishamerica Legality Issues

CGHOLMES · May 16, 2008

Hi There,

My name is Charlene - and I am obviously very new too this - but thought what the hay, may as well give it a shot and see if somebody can assist me in my quest for answers.

I recently heard from a person from my past, who was boasting about having recently been published with "PUBLISH AMERICA" a publisher that judging from what I've read of the posts on this site that it is a wee bit underhanded when dealing with writers -

Having said that, my issue is the content of this particular persons book -

Firstly let me briefly tell you that his book is about surviving & conquering Heroin addiction - it is also a tell all book from my understanding, and as such includes personal information about certain person(s), which could be very detrimental to them.

Is it legal to include a person(s) name without that persons consent ?

Is it legal to allow an author the ability to destroy another persons life with their insinuations & innuendo ?

I eagerly await responses -

Charlene

Kalyke · May 16, 2008

I'm not a lawyer, first off.

I believe the injured party should see a lawyer. False or disparaging statements are called defamation. I believe that liable is another issue, but an Attorney would know which laws, if any were being broken. I personally do not think most writers on this board are lawyers, though some may be, so getting legal advice is as hit and miss as asking people out on the streets.

As for vanity presses, I would never publish anything without at least a few hours of time from a lawyer. People who self publish forget that large publishers actually have legal departments, whereas they are on their own.

I wish you luck finding the information you need.

Sheryl Nantus · May 16, 2008

the first thing to remember is that PublishAmerica does NOT check their manuscripts to see if anything is remotely illegal about them - your associate may have assumed that they would stop him/her from putting down anything that would make him/her liable for a lawsuit.

you'd be best consulting a lawyer and seeing what options you have. I do know of at least one PA book that was pulled from the shelves and PA dropping the author when the family of the author filed lawsuits contesting the depiction of a family member.

Momento Mori · May 16, 2008

CGHOLMES:
Is it legal to include a person(s) name without that persons consent ?

Is it legal to allow an author the ability to destroy another persons life with their insinuations & innuendo ?

So far as I am aware, there's nothing de facto wrong with writing about a real person in a book. Whether use of a person's name crosses into defamation however depends on a number of things, including what's specifically being alleged about that person, whether the person is specifically mentioned by name or otherwise clearly identifiable, whether any allegations being made would be regarded as defamatory in the community etc.

It's one of the reasons why non-fiction publishers stick their legal departments on a manuscript if an author is writing a memoir or biography about real persons (although 'real' publishers, unlike PA, actually read the manuscripts thoroughly before agreeing to publish them).

If you're worried about damage to your friend's reputation, then I'd recommend that they take a look at the book first to make a decision as to whether they believe it could harm their reputation and then speak to a lawyer who specialises in defamation to see what they advise.

MM

DaveKuzminski · May 16, 2008

Have the "injured" party(ies) speak with an attorney. Many will give a free consultation for issues of this sort. If the book is already published, the lawyer should go after PublishAmerica (PA) and the author. Make the lawyer aware that PA has deep pockets. The lawyer should go after PA with the intention of reaching an agreement that includes withdrawal of the book and a financial settlement. If the injuried parties want to help writers everywhere, it would be nice if the agreement also requires PA to read completely every submission before it issues an acceptance or face additional financial payments.

About the only thing that hasn't been stated yet is that any friendship that might still be lingering among the parties will probably be ended.

Unimportant · May 16, 2008

It'll also depend on whether or not the insinuations and innuendo are true.

If it's true, it's not libel. If it's not true, and the person can prove it and can prove the book is damaging to their reputation, then they've got a case.

kullervo · May 16, 2008

I took a few classes in entertainment law at UCLA while at the film school.

PA is toast.

tlblack · May 16, 2008

The PA contract is written so that PA has their butt pretty much covered from libelous issues. Paragraph 27 of my contract (One very long, comma filled run-on sentence) states about halfway through that "the Author and his legal successors and/or reps will hold harmless and keep indemnified the Publisher from all manner of claims, proceeding and expenses which may be taken or incurred on the ground that said work is subject to any such lien, claim, charge or debt, or that it is such violation, or that it contains anything libelous or illegal." (I have a different contract than the one offered by PA today.)

I'm not an attorney but to me this means that PA isn't at fault (naturally) for anything contained in the book that might get the author of said book sued. A person being included in a book (non-fiction) would only have cause to sue the author, if the things included in the book weren't true.

I agree with everyone else here. Talk to an attorney.

CGHOLMES · May 17, 2008

Many thanks for everyone's input on my query - truly appreciated and Yes we will be meeting with a lawyer early next week to see what steps we can take to have this book removed.

Charlene

DaveKuzminski · May 17, 2008

tlblack said:
The PA contract is written so that PA has their butt pretty much covered from libelous issues. Paragraph 27 of my contract (One very long, comma filled run-on sentence) states about halfway through that "the Author and his legal successors and/or reps will hold harmless and keep indemnified the Publisher from all manner of claims, proceeding and expenses which may be taken or incurred on the ground that said work is subject to any such lien, claim, charge or debt, or that it is such violation, or that it contains anything libelous or illegal." (I have a different contract than the one offered by PA today.)

Another libel suit facing similar contract provisions for another publisher has more or less proven in court that PA is not covered against libel issues. By claiming to be a publisher, PA shares in the guilt of any libel. Particularly since PA isn't reading what they publish, they're setting themselves up for a very big loss.

Talk to a lawyer and take them to court. Get all you can and make the court aware that PA needs to be monitored.

Momento Mori · May 17, 2008

tlblack:
"the Author and his legal successors and/or reps will hold harmless and keep indemnified the Publisher from all manner of claims, proceeding and expenses which may be taken or incurred on the ground that said work is subject to any such lien, claim, charge or debt, or that it is such violation, or that it contains anything libelous or illegal." (I have a different contract than the one offered by PA today.)

I'm not an attorney but to me this means that PA isn't at fault (naturally) for anything contained in the book that might get the author of said book sued. A person being included in a book (non-fiction) would only have cause to sue the author, if the things included in the book weren't true.

That's just an indemnity clause so that in the event that PA finds itself in court over a libel action, it has a right to recover its costs from the author. It doesn't go to PA's own liability, which would stem from a court judgment rather than the underlying contract. I'm not a US qualified lawyer, but in the UK I believe a publisher's liability comes from disseminating a libel rather than perpetrating it.

Of course, if an author's got no money, then the indemnity is pretty meaningless so if there was a situation where PA got taken to court or settled a suit, then there's a always a possibility that it won't get the money back from the author responsible.

Unimportant:
If it's true, it's not libel.

Again, I can't speak from a US legal perspective, but in the UK truth is not necessarily a bar to a successful libel action. A statement can be true and yet still be injurious to reputation - the difference is reflected in the damages award. This is one of the reasons why so many celebrities forum shop for the UK courts where defamation is concerned.

MM

Stacia Kane · May 17, 2008

DaveKuzminski said:
Another libel suit facing similary contract provisions for another publisher has more or less proven in court that PA is not covered against libel issues. By claiming to be a publisher, PA shares in the guilt of any libel. Particularly since PA isn't reading what they publish, they're setting themselves up for a very big loss.

That was the Rebecca Brandewyne AuthorHouse thing, right?

http://www.publishersweekly.com/article/CA6360355.html?display=breaking

MadScientistMatt · May 17, 2008

Momento Mori said:
Again, I can't speak from a US legal perspective, but in the UK truth is not necessarily a bar to a successful libel action. A statement can be true and yet still be injurious to reputation - the difference is reflected in the damages award. This is one of the reasons why so many celebrities forum shop for the UK courts where defamation is concerned.

MM

In the US, it is sometimes possible to sue for such things as invasion of privacy or portraying a person in a false light, even if the claims are factually true. It would be best to have a lawyer evaluate the situation.

I'm glad the OP didn't name the book, too. Not only could this one get PA in a world of hurt, but now with any luck the PA stooge who reads this board is going to have to go through a couple thousand books they never read to figure out which book this is.

Unimportant · May 17, 2008

Yup -- good points, y'all, and my bad. For example, making public someone's salary may be factually correct, but it's an invasion of privacy and they could take legal action.

::shudders to think what would happen to my professional reputation if my employees found out how little I'm paid!::

Momento Mori · May 17, 2008

MadScientistMatt:
In the US, it is sometimes possible to sue for such things as invasion of privacy or portraying a person in a false light,

Interesting. We've had a series of judgments in the UK over the last few years that's effectively provided a law of privacy (I think I'm right in saying that it stems from protections within the Human Rights Act) - to keep with the writing them, J. K. Rowling got a judgment under it last week after a tabloid published pictures of one of her children.

MM

DaveKuzminski · May 17, 2008

DecemberQuinn said:
That was the Rebecca Brandewyne AuthorHouse thing, right?

http://www.publishersweekly.com/article/CA6360355.html?display=breaking

Yes, I believe that was the case.

James D. Macdonald · May 18, 2008

"the Author and his legal successors and/or reps will hold harmless and keep indemnified the Publisher from all manner of claims, proceeding and expenses which may be taken or incurred on the ground that said work is subject to any such lien, claim, charge or debt, or that it is such violation, or that it contains anything libelous or illegal."

That's all very well, but the third party who was libeled didn't sign that contract, did he? PA's butt is still on the line, and they're still the ones with the deep pockets.

allenparker · May 19, 2008

I may be wrong, but...

James D. Macdonald said:
That's all very well, but the third party who was libeled didn't sign that contract, did he? PA's butt is still on the line, and they're still the ones with the deep pockets.

My understanding is that this is an agreement by the author and the publisher that the author will defend and pay damages if PA is taken to court and loses.

This doesn't affect the ability of anyone to sue PA. It just means if someone does sue and is successful, the cost for such is on the author.

What is debatable is whether Pa is able to collect for legal and other fees if they successfully defend against the claim.

Publishamerica Legality Issues

CGHOLMES

Kalyke

Sheryl Nantus

Holding out for a Superhero...

Momento Mori

Tired and Disillusioned

DaveKuzminski

Preditors & Editors

Unimportant

doggone

kullervo

minion

tlblack

nothing simple here

CGHOLMES

DaveKuzminski

Preditors & Editors

Momento Mori

Tired and Disillusioned

Stacia Kane

Girl Detective

MadScientistMatt

Empirical Storm Trooper

Unimportant

doggone

Momento Mori

Tired and Disillusioned

DaveKuzminski

Preditors & Editors

James D. Macdonald

Your Genial Uncle

allenparker

Naked Futon Guy