We’ve all been there. At a party, at a dinner table, out for coffee with the gang—you are telling a story. You’ve told this story so many times and it’s a winner. You embellish here, cut out a few boring bits there, and voilà – you are the hit of the dinner party. There’s nothing malicious, nothing untoward, just a regular part of normal human interaction. You are just telling a story.
However, sometimes that’s taken a step further. Sometimes a person has a story that is so good, or so burning inside them, that it’s not enough to simply remain as a dinner party anecdote but needs to graduate to something more grandiose and permanent. Sometimes that story needs to become a full-blown memoir or true-story book.
In today’s environment these memoirs are often written by “ghostwriters” – writing professionals who use their expertise in words to assist others in telling their stories. Politicians have been using speech writers since time immemorial. Celebrity chefs, personal trainers, rockstars and movie stars employ the services of writing professionals in crafting their latest bestsellers. And this trend has only gotten bigger.
Ghostwriting memoirs or true stories While a book filled with fat-crushing muffin recipes may not, on the face of it, present too many legal difficulties, when it comes to the world of personal memoirs and true-life stories, a ghostwriter may be walking into a legal minefield.
This can specifically happen when people tell stories about pain, abuse, addiction, violence or any of the darker and more disturbing aspects of the human experience. When people are traumatised or angered about their past they can become careless with the truth or even vindictive in their approach. The very human desire to have our pain heard and acknowledged can lead many memoir-creators into the legal shadowlands of defamation, libel and worse. Especially when this involves real people, prominent personalities in the community, or other true stories.
The question for legal practitioners is – to what extent might a ghost writer be liable for the work published under the name of their clients?
The answer, unsurprisingly, is not black and white. There is no piece of legislation that specifically protects a ghost writer, in the event that a memoir or a piece of writing becomes legally problematic. Which is why it is absolutely critical for ghost writers to have agreements in place with their clients – especially for “true-stories” involving real, actual people.
Ostensibly, the agreement between the writer and the client needs to be comprehensive and unequivocally clear about the writing obligations of each party, and in particular the scope of the ghostwriter’s role, which necessarily needs to be limited.
Agreements need to clearly articulate the proper legal releases, warranties and indemnities. There needs to be no doubt at all that the client is legally liable for all content in the book and for any action that may arise out of that content.
Check your facts It is equally important for a ghostwriter to be vigilant during the writing process. Investigative journalists have a habit of covering their bases, checking everything they write, ruthlessly fact-checking statements and so on. If a ghostwriter is dealing with sensitive subject matter they should be diligent in representing the truth and advising their client when there are departures from pure fact into the realm of artistic license.
There are no official standards on the responsibilities of a ghostwriter, but it certainly behooves them to be as diligent in the fact-checking process as can be and to approach the task of writing fact-based memoirs with the mindset of an investigative journalist and all the standards that are brought to bear on that profession.
With the proper legal protections in place, and practising within the best-practice standards of other forms of fact based writing, ghostwriters should be confident in going about their business and providing their clients with the best possible services.
Disclaimer: This article is of a general nature only and must not be relied upon as a substitute for legal advice.
About the author Sharon Givoni is an intellectual property lawyer with experience advising on all legal aspects of writing including copyright, releases, misleading conduct, publisher agreements and many more.
Sharon is also currently updating her book ‘Owning It: A Creative’s Guide to Copyright, Contracts and the Law', which has sold out quickly.
If you have any questions, or you would like a ghostwriters agreement prepared, contact: [email protected] or call 03 9527 1334.
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