Writers write. They also spend time in jail or courts.
Occasionally they are murdered. It is best when they
An interesting question from Steve: "I have a contract
with a large media company in the US. I work out of
London, cover meetings and write dispatches from
them. I take a lot of notes and get a lot of material
but my contracted company doesn't want to use all of
it. Is it OK for me to take those notes and interviews
and make new articles to sell to new markets?"
I couldn't give him legal advice although I did say that
all freelance handbooks I've read advise freelancers to
collect research for more than one assignment. The contract
or freelance writer owns the research, the writing, the
interviews unless he's foolishly signed it all away in
an "all-rights" or "work-for-hire" contract.
There are a lot of legal and ethical questions in writing
and publishing. What follows is meant to inform writers on
subjects that can prove prickly if you are ignorant of them.
In the resource box below I have put a generous supply of
links that help define and explain the terms.
Writers can stay out of hot water by using common sense.
Pay attention to that red flag as it stands erect on
something you are about to write.
Don't be the reporter who got the Weekly Standard in Dutch
in 1997 when he interviewed disreputable sources for a
story on Deepak Chopra and ended up costing the Standard
a lot of money and embarrassment.
Or Drudge who ended up with egg on his face over the rumor
of the Kerry affair.
Writers, whether they are on staff or freelance have the
same responsibilities as those who publish them. Magazines,
especially, are so paranoid of law suits that editors will
usually cross out references in stories that send up any
red-flag. It's a narrow road sometimes. After all,
journalism is dealing with bad people, bad companies, bad
institutions all the time in a contentious society. A good
magazine is running the risk of pissing off someone at any
Libel and plagiarism are two legal thickets that can
get a writer in trouble. There have been a rash of book
writers, famous scholars, newspaper reporters, and others
whose reputations have been damaged by, especially,
plagiarism. The other difficult legal quandary is when
the courts give a reporter the option of revealing their
source or go to jail.
I certainly recommend the media law blog to anyone
interested in these questions.
A crucial battle is building between the traditional
"shield laws" writers have enjoyed in the past and the new
post-9/11 world. The courts are more repressive, and more
concerned with "get the guy" than with the public's right
Contempt of court is landing more journalists in jail now
than ever. In the last several decades 14 writers have
been jailed; in the last couple of years there have
been seven arrests. There is a definite chill in the air.
The right to know is becoming a kind of idealism the courts
nowadays tend to brush aside.
"These are journalists with national stature working for
mainstream, well-respected publications and broadcast
entities ... so I don't think they're going to be
intimidated into revealing their confidential sources,"
said Lucy Dalglish, executive director of the Reporters
Committee for the Freedom of the Press.
A recent case involves Jim Taricani, TV reporter in
Providence R.I. He's been a reporter for thirty years. He
ignored a court order to reveal who gave him a tape
damaging to a defendant in a political corruption case and
was found guilty of criminal contempt. He was sentenced to
a six-month house arrest.
The statement he made after being found guilty underscores
the real significance of all this. "I wish all of my sources
could be on the record, but when people are afraid, a
promise of confidentiality may be the only way to get the
information to the public, and in some cases, to protect
the well-being of the source."
Confidentiality is the cornerstone of the public's right to
know. More media types are alarmed over this than they
have been over other hot subjects of late.
The outbreak of these cases has prompted a great deal of
interest in the shield laws.
This link contains many resources on the shield laws.
Judith Miller is another case. She was given information
about a leak in the Bush Administration's outing of a CIA
The court demanded the source, she and her co-defendant
refused--they will probably spend some time in jail. What
makes this more disturbing is that Miller never wrote an
article on the information she had; she merely conducted an
interview in anticipation of writing the article.
Most writers don't have to worry about this problem.
I doubt if food writers or copywriters are going to
be held in contempt for making a secret family recipe
public. But if a bitter rivalry broke out between
two chefs and one was found murdered and a third party
went to the food writer and told her what happened and
she wrote the story, then she may be forced to reveal
the source or go to jail.
We all need to worry about the effect on whistle-blowers
and others who will hesitate going to journalists
if the shield laws don't work.
Deep Throat remains the most famous concealed source in our
time and Bob Woodward still refuses to reveal who he is
because "the man told a lot of lies to people he's closest
to..." So, we won't find out until the man leaves the Earth.
"Writing the truth, and being ready to prove it to be the
truth, is the only absolutely solid way of dealing with
libel actions." --John Morrish, Magazine Editing
Media lawyer Kevin Goering says, "If it's something you
wouldn't want to have said about you, it's probably
Libel is far more a concern for writers and editors than
One thing the last few years have proven is that juries
like to award people who have been libeled by writers and
publishers with lots of money. Retraction goes a long way
to minimize the damage but it doesn't prevent a lawsuit
In the AP Stylebook and Briefing on Media Law it is pointed
out that most libel suits come from small, seemingly
innocuous notices about court cases, implying someone is
a criminal. And most of these suits, as the Associated Press
outlines it, occur in the "publication of charges of crime,
immorality, incompetence or inefficiency."
According to The Magazine from Cover to Cover, writers are
negligent if they don't contact the person being defamed,
fail to verify information through excellent sources, or
a disagreement occurs between the writer and the source over
what exactly was said.
Lately it has been the "right to privacy" that writers and
journalists have to be aware of. Violation of the right to
privacy can be an actionable offense and includes
trespassing onto a source's private property, among other
things. Written consent is always the best policy if you are
Bunin and Beren in The Writer's Legal Handbook suggest that
the best defense to libel action is simply to scrutinize the
story. Does anything in the story point to associating a
person with something deemed "bad?" If so, look at it
carefully, look at the facts that have been asserted and
only include it if you are absolutely certain of that fact.
Messing up at that stage could be very costly to your
reputation and pocketbook.
If you are a reporter and cover a meeting in which a
public official makes a libelous statement, then report
it, you are not held accountable in most cases. It is called
"privilege defense," and assumes you are fair in the
reporting of the public meeting.
If you criticize someone or something in an article you need
to give all the reasons why you are criticizing him or her
or the restaurant or the museum. Why did you come to form
the opinion you did? If that is written out then you have a
fair comment or criticism defense against libel.
According to the Columbia Encyclopedia businesses account
for about 70% of all libel lawsuits against the media.
Journalists rightly argue that suits of this nature can
have a very chilling effect on the ability and desire to
find out the facts for the public good. Remember that it's
not a "fact" that protects a writer from libel but a
"provable fact." And that is a different beast.
In the past six months a new type of suit has emerged,
what the Society of Professional Journalists calls a SLAPP
suit, "strategic lawsuit against public participation."
According to a Columbia Journalism Review story, in a TV
Broadcast a dentist in Cincinnati was accused of
malfeasance. He didn't sue the station, but sued the people
who had accused him, a tactic used to make the accusers
retract statements and leave the station without
There was a disheartening story out of Kansas. It appears
that a teacher flunked her entire class because they had
plagiarized their work. The parents protested and went to
the school board, who stood behind the parents and not the
teacher. She, naturally, quit and went on to better things
The plagiarism of Jayson Blair brought the New York Times
to its knees. The USA Today was embarrassed by a similar
scandal. In these cases it was a matter of shocking
disregard for journalism ethics and a quick exit from the
For others it is a bit more confusing; not quite as black
Sometimes responsibility is shared by the writer and the
publication he writes for. In 2003 a feature writer for the
Norristown Times Herald was caught copying twelve paragraphs
from another daily. He was fired. To get his job back, he
filed a grievance. The arbitrator said while he did
plagiarize, the publication was equally at fault for not
educating the newsroom about how to properly attribute
information they got from the internet.
Most writers understand the concept of plagiarism. They
know if they take someone's work and submit it as their
own it is plagiarism. They know if they go up on the Net
and get information and paste it into their own copy
that it is plagiarism. They know if they have not documented
references they are plagiarizing. What they may not suspect
is if they take a piece of writing of their own, change
a few words around, and then submit it to another magazine
as a different work it would be considered a plagiarized
The habits of this problem can be learned very early on.
Most teachers say they encounter plagiarism or what they
suspect is plagiarism every school term.
These sites provide an excellent survey of the problem and
some resources to rectify it.
From a legal standpoint plagiarism is a violation of
copyright and "fair use" of another's material. From an
ethical standpoint it is using someone else's work and
getting credit for it.
When we read something we are always mentally cataloging
that material in one form or another, arguing with it,
skimming over it, and so forth. The best way to avoid
plagiarism is to write down the story you intend to write,
in your own style, thinking through what you are going to
say, and then start the process of research. And when you
come across something you didn't know before, note it in
the article, then, if justified, attribute it to the person
who came up with the idea. That is the safest way to go,
the fair way, the right way.
A spot-on piece of advice: "Don't sign anything you don't
understand." Most freelance contracts are fairly simple but
book contracts can be complicated. Even if you have an agent
or lawyer you must read that contract line by line and
understand what every statement means. When you are
satisfied then you sign it. If any part of the contract
confuses you, you must address it with the agent, the
publishing house, the lawyer, whomever you are dealing with.
Avoid "work for hire" or "all rights" contracts. Editors are
instructed to get these type of contracts because magazines
or newspapers know the different channels of distribution a
particular piece of writing can go. If you decide to sign a
contract only do so if the publishers up their offer and if
you are convinced you aren't going to do anything more with
the piece. But, obviously, the publication wants exclusive
rights to the piece so it means they already know of other
markets they can stream that piece to.