Publishing Industry

Publishing Industry – Author-Publisher Contracts – Script Preparation

The laws of copyright, trademark, and defamation provide just some of the many exceptions to the right of free speech. In order to reduce the possibility of a lawsuit, both the author and the publisher should constantly evaluate a writing project for potential risks. The process of reviewing a script before publication to ascertain whether the work poses a risk of liability for a legal claim is known as “vetting.”

Often, the publisher will hire an attorney to vet a script. Nevertheless, the author remains primarily liable to the publisher for any legal shortcomings in the script due to the standard warranty provisions that appear in the publishing contract. Thus, an author may want to retain an attorney for vetting purposes if the publisher does not choose to have the script legally reviewed. Keep in mind that vetting should also include any word or picture that is connected with the script such as advertising, dust jackets, and press releases.

If a legal risk is spotted in a script, the author and publisher must decide whether or not to accept the risk. Of course, the risk can be eliminated if the problematic passage is dropped. Elimination is also possible if permission is given through a release. The risk may be lowered by rewriting the passage.

To reduce risk, an author should be able to name the source of any factual material used in her script and should know if there are any restrictions in using such material. Thus, she should keep copies of any document used in creating her script with clear notes as to the document’s source and identity. A record of contact information should be kept as to any personal sources. Copies of resource documents, of computer disks, and of the script should also be kept in case of loss or damage.

Although tape recording of personal sources can be useful because it shows exactly what was said, certain steps must be followed before a tape recording can be used for legal purposes. To ensure that her recordings will be legally sufficient, an author should always make a declaration each time a recording is started stating the date, the time of day, the place, the reason for the recording, her name, and whether the subject (addressed by name) is ready to begin talking. The subject should vocally respond that he knows he is being recorded and knows that the recording will be used for the author’s script. This should be repeated any time that the tape is restarted. It is important to note that a written consent carries more weight than verbal consent such that an author may want to consider having the subject sign a written release.

An author may be asked by a subject to keep him confidential as the source of a communication. The terms of a confidentiality agreement are extremely important because the basic premise of the agreement greatly limits the author (the basic premise being that the author promises to use information given by the subject only under certain conditions). The terms should be agreed upon before the confidential matter is discussed. If possible, the author should get the subject to sign a written confidentiality agreement or to orally agree on tape.

Authors may be protected by state shield laws. Generally, such laws protect journalists from being held in contempt of court if they refuse to name their confidential sources. Whether that privilege extends to authors varies among the states. Be aware that shield laws do not protect against other types of court imposed sanctions.