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Issue for June 2011

Getting Sued for Doing Your Job

Posted on Wednesday, June 29, 2011 at 10:27 AM

Potential legal liability for exercising your editorial discretion!

By Meredith L. Dias

No matter how savvy an editor you are, risks of potential legal liability are always present. With them comes the threat of hefty litigation-defense expenses and possible monetary damage awards -- sometimes massive. Some of the risks are not obvious. This month, attorney Lawrence Savell sat down with us to discuss the potential liability of editors and their publications. We focused on circumstances when editorial discretion allegedly becomes editorial indiscretion.

EO: Editors are usually quite vigilant about copyright issues. They know that, before they publish an article, they've got to have the right to do so. If they don't, they could be sued. You've pointed out that editors are open to other risks. There is the possibility of being sued for other decisions they make in their work as editors.

LS: That's right. Although editors and publishers have traditionally enjoyed the right to make reasonable edits, from a legal perspective the bounds of editorial discretion are not limitless.

EO: What are the limits? On what basis have claims been brought?

LS: Creative plaintiffs' lawyers have attempted to invoke in such contexts a broad range of traditional theories in response to perceived excesses or other wrongs. These include alleged copyright violation, trademark violation, unfair competition, breach of contract, misrepresentation -- and even defamation.

EO: Can you give us examples of some cases?

LS: One of the earliest and most widely-cited cases involved the Monty Python troupe, who asked a court to block re-broadcast of heavily-edited versions of their programs. The alterations allegedly were quite extensive, including deleting more than a quarter of the original show, with the removed content including the climax of routines or essential elements in the development of story lines -- which made the segments very hard (if not impossible) to follow. The court granted the requested preliminary injunction. It concluded that unauthorized changes in a work that are so extensive in volume and effect as to impair the integrity of the original work go beyond the normal degree of latitude allowed in making changes, and may possibly constitute a basis for liability.

EO: Have there been cases involving extensive deletion of content where publications have fared better?

LS: Yes. For example, in a case brought against Harper's Magazine by the author of a letter, the court found, among other things, that the published excerpted version of the letter (which deleted about half its content) was in fact representative of and did not substantially distort the original.

EO: In what other contexts have claims been brought?

LS: Another case involved the alleged addition of typos and other inaccuracies in the course of the editing process. In this case, a law student alleged that a law journal's editorial staff had so "mangled" his submitted piece through numerous substantive and typographical errors that its publication in that form, among other claims, constituted a violation of federal unfair competition/trademark law, prohibiting "false designation of origin" for the journal to refer to him as the article's author. The trial court ruled for the journal and dismissed the complaint and the appeals court affirmed that dismissal. Among other things, the court found that, as contrasted with the situation in the Monty Python case, the deviation was not as significant as the writer alleged.

EO: Editors know that they have to give appropriate credit to authors. But have there been cases where editors or publishers have gotten into hot water when attributing a work to an author?

LS: Yes. There is a case currently on appeal in federal court in Pennsylvania brought by two law professors against a major legal publishing company. The professors had previously authored a treatise for the publisher, but alleged that, although due to a compensation dispute they did not participate in the preparation of a subsequent update, the update was nevertheless attributed to them as authors. They claimed the update, prepared by others, was so poor that it defamed them because of the implication to readers that they were responsible for it. A jury in December issued a verdict for the professors on their defamation and false light invasion of privacy claims, and awarded each $90,000 compensatory and $2.5 million punitive damages. This April, the trial court entered judgment in favor of the professors but in the reduced total amount of $200,000 for each. Both sides have appealed -- basically, the professors would like to get more money, and the publisher would like to get the decision reversed.

EO: Have claims been brought that attempt to invoke other types of legal theories?

LS: Yes. Many of the cases in this area have (expressly or implicitly) included claims that the editor or publisher's (or similar entity's) actions violated the author's "moral rights" (from the French term droit moral). This is a concept which historically has been more extensively recognized in countries other than the United States. In legal systems where recognized, moral rights can protect the reputation of authors through, among other things, the right of attribution (whether the author's name is associated with or withdrawn from a work) and the right of integrity (distortion, modification or mutilation of a work).

EO: Has there been legislation in the US recognizing moral rights?

LS: In the United States, the Visual Artists Rights Act of 1990 provides protection but to only a limited scope of works, and expressly excludes any "motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication . . . ." Some states have enacted forms of moral rights legislation, but these are also typically narrow. Some courts and commentators have pointed to, among other things, such narrow enactments and various First Amendment considerations, as making it difficult for plaintiffs to pursue certain moral rights claims in traditional publishing contexts.

EO: In light of all this, what's your advice to editors?

LS: Although this area of media law continues to evolve, there are nevertheless steps that editors and publishers can take to reduce potential exposure.

The first is obvious -- make sure that changes you make are accurate and do not add typographical or substantive errors to the work.

Second, if an article does require massive editing, consider not accepting/running it or asking the author for a re-write. If you do plan to make significant deletions or major substantive changes, notify the author and seek written consent in advance of publication.

As is the case with numerous aspects of the editor-author relationship, the safest course may be to address all of this specifically in your written contract with the author. Affirmatively specify that the editor or publisher has broad power to edit and otherwise change the work. But be mindful of (and, if agreed to, make sure you comply with) terms that certain authors -- such as celebrities or others with particular negotiating leverage -- might impose, which might instead prohibit or severely limit edits. In many of the cases in this area, there were written agreements bearing to varying degrees on the issues, but such agreements were not always as clear or comprehensive as they might have been.

Meredith Dias is senior editor of Editors Only.

Lawrence Savell is a litigation attorney concentrating on products liability and media law in the New York office of Chadbourne & Parke. He can be reached at lsavell@chadbourne.com, 212-408-5343.

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From Lead Onward

Posted on Wednesday, June 29, 2011 at 10:27 AM

An article that tells and shows what solid reporting, deep understanding, and passionate writing can accomplish.

By Peter P. Jacobi

Yes, I've said to you that when it comes to leads, be careful about using questions. They're too easy. Any story, every story can start with a question that the writer then sets about to answer. But sometimes, a question lead makes for the very best way to get things underway.

An Exception to the Rule

Take a powerfully written piece that The New York Times ran on a Sunday in May that closely followed the brutal invasion of Joplin, Missouri, by that monster tornado. Dan Berry wrote the story under the headline, "When Everything Is Gone, Including a Sense of Direction." And to give due credit, Barry did the reporting, along with colleagues Richard Oppel, Jr., and A.G. Sulzberger.

Here's the lead; it covers three paragraphs:

"Where is Dude's Daylight Donuts, whose glazed treats made mornings better? Where is the Elks lodge, the place to go on Friday nights for a meal, a few beers and a lot of laughs? Where is St. Mary's Roman Catholic Church, and the parochial school always by its side, like an obedient child?

"Where is the El Vaquero restaurant, with its tangy margaritas? And Jack's barber shop, where the world's problems were solved snip by snip? And the Glory Days music store, with those drum sets daring would-be Ringos to find the beat? And the houses? The thousands of houses?

"Where is one-third of Joplin?"

This is not a question but a questions lead, one consisting of a series, and it really works to establish the scope of physical and historical loss that the storm caused. The landscape, the cityscape, was wiped clean of its past. Each question identifies one element now gone and bound to be missed.

Solid Reporting

Barry and company discovered the facts through on-the-scene observation. Then, Barry tied them together, question by question, and with each, the devastation grows. Think how much reporting was needed to make that lead possible. Think how much reporting it took to go on. The lead by itself leaves the reader hanging. The meanings must be filled in.

"All this was here last Sunday afternoon, rooted in the Missouri ground and in the Joplin psyche, as permanent as anything of concrete and routine can be," the next sentence explains. With it, you immediately discover that Barry seeks, through his copy, to give us an understanding of how a disaster, by ripping to shreds the landmarks of a community and the gathering spots of a neighborhood, can tear away the bonds of togetherness as long forged through local traditions and habits.

Answering the Questions

As the story develops, the subjects of those questions posed will receive a follow-up. "Down at the donut shop, Dude Pendergast looked forward to another predawn Monday of rolling dough and making coffee for his early-bird pals. At St. Mary's school, Monday lunch was to be Mexicali chicken, Spanish rice and golden corn. Now all this is gone."

We're told that "Longtime residents, including the mayor, will tell you that even when on the central thoroughfare of South Main Street, they are not always sure where they stand. There is a splintered landscape, defined by remnants of houses, overturned cars and bark-stripped trees that jut from the earth like hands reaching for help. The devastation can become one endless, numbing landfill..."

Deep Understanding

Barry's story has a sense of direction that the unfortunate citizens of Joplin, so soon after the storm, lack. It also features rich detail so that the reader, though not on the scene, can get at least an idea of what has happened, as much of one as words on paper can provide.

"But then some stray piece in the sprawl of brokenness will catch the eye, demanding context," the story continues. A short list comes next: "a small oxygen tank, a full jar of oregano, a Kermit the Frog doll. And the context is Joplin, a specific place with a specific American history."

Passionate Writing

The writing is so sensual: the "sprawl of brokenness" mentioned above. And this: "Traffic crawls at a stunned pace, with cars carrying the traumatized and those who need to see to believe." And: "The stillness of the piles along the roadside is disturbed only by people, digging."

Dude's Daylight Donuts: it is "Gone. But Dude is still here, hip-deep in the rubble of the business he ran for more than half a century, standing right where he used to stack the sacks of flour." St. Mary's is "sacred shambles ... where the wood pews are crumpled, the organ smashed and the baptismal font filled with ripped-away insulation."

Barry writes: "Turning right or left on any street leads to houses gone or close to it, as well as to stories and moments of heartbreak, weirdness and resolve." A "distraught man" relates one story, of how, "while helping to dig in search of the living, he heard the distant cry of a little girl. 'Don't worry, honey, I'm getting there!' he called out, again and again, digging so frantically that his hands began to bleed. Then, suddenly, he was there. He uncovered a talking doll, and he wept. Then he dug elsewhere, he says. This time he uncovered a dead girl, and he wept."

Just one article, and from it one learns again about tragedy and courage, from it one is reminded of the human need to go on, to reclaim and rebuild. From what one reads throughout, the signs are there that Joplin and its people will not only remember but mend and, once more, thrive.

Journalistically, that one article tells and shows so much about what solid reporting, deep understanding, and passionate writing can accomplish from lead onward. You'll find the story on page 16 of section 1 in The New York Times of Sunday, May 29.

Peter P. Jacobi is a Professor Emeritus at Indiana University. He is a writing and editing consultant for numerous associations and magazines, speech coach, and workshop leader for various institutions and corporations. He can be reached at 812-334-0063.

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The Fog Index

Posted on Wednesday, June 29, 2011 at 10:27 AM

Assessing the readability of a NYTimes.com excerpt.

This month, we examine a shorter passage from a June 25, 2011, NYTimes.com article ("Lessons in Communication, for Newspapers Themselves," by Bryan Burrough):

"The abysmal state of newspapers today has largely been precipitated by the loss of classified advertising to Craigslist and other online sites; by the mass migration of readers to free online news sites; and, to a degree I hadn't appreciated, the scandals in the early 2000s that revealed how thoroughly some newspapers had been misstating circulation numbers for years. Once those papers had to issue correct numbers, official circulations fell sharply, with a corresponding loss of credibility among major advertisers."

--Word count: 80
--Average sentence length: 40 words (59, 21)
--Words with 3+ syllables: 19 percent (15/80 words)
--Fog Index: (40+19)*.4 = 23 (no rounding)

This is one of the highest Fog Index scores we've encountered in our column. The clear culprit is the first sentence, which weighs in at a hefty 59 words. Let's see if we can bring the Fog score below 12.

"Newspapers today are in abysmal shape. First, they have lost classifieds to Craigslist and other websites. Readers have also flocked to free news websites to a degree I hadn't appreciated. The scandals of the early 2000s revealed just how much some newspapers had been misstating circulation numbers for years. Once those papers had to issue correct numbers, circulation totals fell sharply. As a result, they lost credibility with major advertisers."

--Word count: 70
--Average sentence length: 12 words (6, 10, 14, 19, 12, 9)
--Words with 3+ syllables: 13 percent (9/70 words)
--Fog Index: (12+13)*.4 = 10 (no rounding)

This was a tough sample to trim. The original version contained just two sentences, so we had to break them up into shorter, easier-to-digest portions. This required some rewriting. The end result: a Fog Index reduction of more than a half.

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The Jose Antonio Vargas Story

Posted on Wednesday, June 29, 2011 at 10:27 AM

In the news: A groundbreaking New York Times story is making big waves.

The story of Pulitzer Prize–winning journalist Jose Antonio Vargas has taken the editing and publishing world by storm. Last week, Vargas confessed to the New York Times and an audience millions wide that he is an illegal Filipino immigrant. Now, his former employer, Washington Post, is under fire for its alleged knowledge of Vargas' illegal status.

According to Vargas, his editor at Washington Post knew about his illegal immigrant status and declined to alert anyone at the company. As TheAtlanticWire.com indicates, this means that the newspaper could face charges for knowingly employing an illegal immigrant. Other editors for whom he has worked may come under similar fire for harboring an undocumented worker. Read more here and here.

Also notable:

Editorial Content and E-commerce

Hearst wants to bring readers closer to advertiser products, and thanks to a recent partnership with Pixazza, they may have found a way to make editorial content reap more immediate rewards. Now, readers of Hearst's digital magazines will be able to click or scroll over spreads and text to access product and purchasing information instantly. For example, in one Hearst magazine, readers can scroll over the paint color in a home decorating article image and learn the brand and paint color. Will this trend toward intermingled editorial content and e-commerce take off? Read more.

Red Bull: The Magazine

As tablet and smartphone publishing gain momentum, more and more brands are publishing digital content—and it's not just magazine publishers anymore. Red Bull publishes its The Red Bulletin on the iPad, complete with high-quality photos and videos. The magazine is linked to the brand's popular energy drinks. Read more.

Is It a Magazine?

When does an online magazine stray so far that it ceases to become a magazine? Zinio's chief marketing officer, Jeanniey Mullen, shares her thoughts in her ClickZ column. She cautions editors against "reinventing the wheel" and, instead, encourages them to make their magazine matter online. Read more.

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