Some books require an extra step in the publishing process: the legal vet or legal read. For many authors, news that their manuscript has been sent to the legal department can be intimidating, so we sat down with Executive Vice President and General Counsel Katherine Trager to find out more about the process and what it really means. Keep reading to learn what kind of manuscripts go to the legal department, and what issues the team looks for.
Kathy, one of your department’s tasks is to review manuscripts. Do all manuscripts get reviewed by the legal team?
In general, the legal team looks at manuscripts that the editorial departments refer to us. This means that we tend to get a number of manuscripts where there turn out to be no legal issues presented at all. Still, it is important for someone in the legal department to review any manuscript that might contain anything potentially actionable.
When you receive an author’s manuscript, what types of issues do you look for?
Generally speaking, we read nonfiction works that talk about real, living people and that could contain potentially defamatory statements. In addition, we’re aware of potential copyright issues, and we review books that may contain extensive quotations, or books that are homages to other books, such as a parody or a satire. All of those books may involve issues of copyright infringement. We have to look for and consider carefully one or more of these issues, as well as privacy and other issues, in the books we vet.
When is there a potential for libel?
Nonfiction manuscripts that identify individuals with activities that could affect their reputation, such as criminal activities, could give rise to a libel claim. But, of course, there are many defenses.
There is also the possibility of libel in fiction, if the fiction seems to be so truthful and the character is so identifiable that even though the work is fiction, a reader could believe that the character actually engaged in the activity in real life. There’s the story of a novelist who writes a book and the villain turns out to be remarkably similar to his divorced brother-in-law. This is a realm of libel law, not very successful for plaintiffs but nonetheless something that we have to keep track of.
Issues relating to libel and identifiability of characters frequently arise in memoirs, where authors may write extensively about their friends, family, and other people in their lives. In some cases, an author may believe that she has sufficiently disguised a character, but perhaps her efforts are not adequate. These books can be fertile ground for litigation and it is important that our department works with authors to resolve any issues prior to publication.
When you look for issues relating to copyright, do you check to see if an author stole an idea, or copied from another author’s work?
Under well-established U.S. law, there’s no protection for ideas. While this might sound irrational, it is the reason why we can have so many versions of boy meets girl, boy falls in love with girl, boy loses girl, and so on. A claim that a copycat author stole an idea is almost never actionable under U.S. law.
But of course, authors do enjoy substantial protection under U.S. copyright law. While a general idea may not be copyrightable, the expression of that idea is. Substantial taking of expression— an almost word-for-word or closely paraphrased taking from a work—could give rise to a copyright infringement action.
There are a number of variations on this, one of which is a doctrine of what is called “comparable literal similarity.” Under this doctrine, the taking of the scope, sequence, manner of presentation, tone, etc., of a work can also give rise to a claim. A famous case involving the Twin Peaks TV series exemplified this doctrine: The author summarized in his own words the plots of Twin Peaks, and even though he did not copy word for word, the court found his work to be copyright infringement.
What do you do if you find a problematic passage?
In the vetting process, we try to talk to the author directly. We will ask right up front: Is this character someone you know, someone you’re related to? One problem is that an author can be completely sincere when he says, “I’ve made up this person’s name, their occupation, their hair color, and there’s no one in my life like this.” And then lo and behold, the person with that name shows up. That’s not because the author has withheld information from us, but because we all walk around with information in our brains we forget we have and it leaks into the things we do and the passages we write.
What advice would you give to an author who is undergoing a legal vet for the first time?
Don’t be nervous. Our attorneys love books and enjoy being part of your publishing process. We are also some of your first “cold” readers and can provide valuable early feedback. The legal vet is not in place to change your book or remove content. We are here to help, and are just as committed to your book as every member of your publishing team.
Emily Condlin works in the legal department and on cross-departmental corporate projects at Penguin Random House.
Kathy Trager is Penguin Random House Executive Vice President and General Counsel.