Tuesday, May 25, 2010

True Crime Author Needs Truth Meter

Dear RIch: I am a retired college professor and have written a "true crime" book that is about to go to the publisher. 99% of my materials came from actual court and law enforcement documents, live interviews, etc. However, I did get a small amount of information from an inmate's website. This website is copyrighted by the inmate (in his name) and I have his written permission i.e. actual document, notarized, etc. My problem, in my mind, is that I don't know where he got the information that appears on his site. I will, of course, show my documentation as coming from the site with permission. Where, my friend, do I stand? You've done everything you're supposed to do, followed all the rules, and yet somehow, there's this nagging feeling that something could go wrong. We know how you feel. You're in the twilight zone occupied by lawyers and journalists who have first hand information but are unsure whether the first-hander is telling the truth. After all, what good is a copyright assignment or a permission agreement if the person providing it has lied or is using infringing material? So, there are two concerns here: your credibility as an author and your liability as a writer.
Credibility. If the book's credibility hinges on the unverifiable content you got from the inmate, you may need to either seek independent verification (the journalist's approach) or disclaim the veracity of the content (the lawyer's approach). For example, you can state within your book that you have been unable to verify the claims by the inmate and cannot authenticate the content provided. This won't avoid legal liability (and it won't help sell any books) but it does something to preserve your credibility --  that is, you're not trying to pull something over on the public.
Liability. Most publishing agreements require that the author indemnify the publishing company for any third party claims. For example, if the inmate makes an untruthful statement about someone who later sues for defamation; or if the inmate has copied a third party's letters and that third party sues, you would have to pay the publisher's legal costs and damages. At the same time, the disgruntled third party may come after you directly. There are some liability shifting techniques you could try. For example, you could transfer ownership of your book to an LLC or corporation and have that entity enter into the publishing arrangement. That may limit your liability -- that is, prevent someone from going after your home -- but it's not always a guaranteed shield and the publisher may possibly bypass that and demand a personal guarantee. 
Limiting Indemnity. You can also try to tweak the indemnity provision of your contract if you have the bargaining power. 
  • Try to limit indemnity to situations where a lawsuit is filed. That prevents you from having to pay simply because somebody is threatening to file, or merely complaining about something. A more stringent and protective standard would require you to pay only if you lost the legal battle with the third-party. 
  • Attempt to cap the indemnity. This is perhaps the most difficult and controversial modification to make to your indemnification obligation because it limits your liability to a specific amount--for example, you never must pay more than you earned under the agreement.
Some final thoughts ... (1) There's always insurance, and (2) We haven't mentioned this earlier since it seemed inapplicable to your decision. But whenever someone pays for permission they can request promises of authenticity and demand indemnity as well. Of course, that's only as solid as the other party's financial condition -- which is why it probably doesn't apply in your case.
BTW, The Dear Rich Staff votes this as their favorite true crime documentary about an author.