Today my guest is entertainment attorney Mike Farris of Vincent, Lopez, Serafino & Jenevein, PC in Dallas.
Comment to this post through August 31 to be entered to win 30 minutes of legal counsel by phone from Mike Farris about your book project.
Mike Farris is a 1983 cum laude graduate of Texas Tech University School of Law, where he was an associate editor on the Texas Tech Law Review and was inducted into the prestigious Order of the Coif. Mike joined Vincent Lopez Serafino Jenevein as Of Counsel in 2010, where his practice includes complex commercial litigation as well as entertainment law, focusing on the movie and publishing industries.
In addition to his law practice, Mike and his wife, Susan, also an attorney, run Farris Literary Agency, Inc. As an agent, Mike has placed several award-winning novels for publication, including Balaam Gimble’s Gumption by Mike Nichols, winner of the 2004 Texas Institute of Letters John Bloom Humor Award, and Sheldon Russell’s Dreams to Dust: A Tale of the Oklahoma Land Rush, winner of the 2006 Langum Prize for Excellence in American Historical Fiction. Mr. Russell’s mystery novel The Insane Train was named as one of the top six mysteries of 2010 by Publisher’s Weekly. Mike also represents various university presses and has successfully placed subsidiary rights to their published books, including negotiating the sale of movie rights to producers and Hollywood studios.
Mike is the 2011 Vice-chair of the Dallas Bar’s Sports and Entertainment Law Section, after serving as the Chair in 2009, and is an adjunct professor at the University of Dallas in its Sports & Entertainment Management MBA program, where he serves on the Sports & Entertainment Advisory Board. He has taught trial advocacy as an adjunct professor at Texas Wesleyan University Law School and creative writing at Richland College in Dallas.
Mike is much in demand as a presenter at writers’ conferences around the country, speaking on topics ranging from legal issues for writers and understanding publishing contracts to how to get published. He created and taught a seminar sponsored by the Dallas Bar’s Sports & Entertainment Law Section entitled Beyond Briefs: Other Forms of Fiction Writing for Lawyers, and he has presented at the State Bar’s Entertainment Law Institute. As a regular presenter at the Screenwriting Conference in Santa Fe, he has taught seminars on the art and craft of adapting source material into screenplays, teaching alongside his collaborator and former Air Force U-2 pilot-turned-New York Times-best-selling novelist Patrick A. Davis, whose novels Mike has adapted to screenplays. He was quoted extensively in Les Edgerton’s book Hooked: Write Fiction that Grabs Readers at Page One and Never Lets Them Go, published by Writer’s Digest Books in 2007 and re-released in 2009.
As a book writer, Mike collaborated with former ABC-TV anchorman Murphy Martin to write Martin’s memoir of his years in journalism, entitled Front Row Seat: A Veteran Reporter Relives the Four Decades That Reshaped America (Eakin Press). In 2009, the University of Oklahoma Press released Call Me Lucky: A Texan in Hollywood, Mike’s collaboration with rodeo cowboy-turned-actor/producer/director Robert Hinkle on Hinkle’s memoir of his years in show business. His Hawaiian thriller, Kanaka Blues, was released in 2010 by Savant Books and Publications of Honolulu, and his novel Manifest Intent was released in December 2010, also by Savant Books and Publications.
Mike is also an award-winning screenwriter, having been optioned multiple times. His short film adaptation of the award-winning novel Balaam Gimble’s Gumption was released in 2010.
Mike is AV® Peer Review Rated by LexisNexis Martindale-Hubbell.
I’m often approached by writers — both screenwriters and book writers — who want to know the legal pitfalls to look for when writing a true story. At some point in the discussion, the question always comes up: “Can they sue me if I do X, Y, or Z?” The answer is always the same: “Anyone can sue you fo anything.”
Then comes what, to them, is the crux of the matter: “Can I win?” At that point, I usually advise that the first question was the important one, not the second. Your goal as a writer is not to win a lawsuit; it’s to avoid getting sued in the first place. It’s expensive to hire lawyers and defend lawsuits, and you can go broke “winning” (with apologies to Charlie Sheen).
In the world of letters, you have to worry about everything from libel (defamation falls into two categories; libel is written defamation
and slander is spoken defamation) to invasion of privacy to copyright or
trademark infringement to infringing on someone’s right of publicity, ad infinitum. There is no sure-fire potion to insulate yourself from being sued, but here are some suggestions on how to lessen the chances of a lawsuit:
1. Ask yourself whether the book or screenplay you are writing has to be a true story. If not, fictionalize it. There’s nothing wrong with writing a story that is “inspired by” or “based upon” real events. It won’t immunize you from litigation, but it at least adds a layer of protection. If, when you’re finished, the story and the characters in it are still easily recognizable, you’ve got some more insulating to do.
2. If it just has to be a true story, get as many permissions or “releases” as you can from the people you’ll be writing about. Talk to a lawyer about what to include in the release, but cover your bases so no one can later say you didn’t have the right to include them in the book or screenplay.
3. Don’t say bad things about real people. That sounds kind of simple, but it’s not, and is one of the reasons to fictionalize your story rather than tout it as being a true story. Calling a real live person a crook or a liar, in print, is often a direct road to the courthouse. But sometimes simply implying that a real live person is a crook or liar can also get you there. Again, consult with a lawyer before saying anything in print that might lead to the descriptive term “defendant” after your name.
4. Be aware of other rights that people might have. For instance, as a general rule in law, you can’t defame the dead. That means that, once a person has deceased, their estate can’t sue you for defamation. But some jurisdictions recognize other personal rights that survive the person’s death, such as the right of publicity, and the family members of the deceased person still have rights of their own even if they can’t sue on behalf of the deceased.
5. When doing your research on a real event, whether historical or contemporary, make your research as broad as possible. If there is only one book on the subject, you run the risk of being accused of copyright infringement if you write on the same subject and use that book as your sole source. The more sources you use, the more you insulate yourself from liability. Notice I didn’t say you insulate yourself from getting sued; just that you insulate yourself from liability.
This is certainly not an exhaustive discussion of the topic, nor is it intended to be, but I hope it gives a general idea of at least the kinds of legal pitfalls that lurk on the writing landscape. And, of course, nothing I’ve said here should be construed as legal advice. Laws may vary from jurisdiction to jurisdiction, and you should always consult with your own attorney when addressing any of these issues.
Thanks for saving us from stepping on a legal land mine, Mike!
Fortunatly, in writing HF, I am writing about historical people who are at least a hundred years dead…
Although one of my villains was real … at some point I will encounter one of his descendents. That might be fun. Fortunatly his villainy was established historical fact. 😀
I always learn something new from Mike! My current project has led me to ask some questions of which you’ve given the answers here. I’m glad I opted to broaden my research…
Thanks, Mike and Stephanie, for this great interview!
Another fascinating post and I appreciate it very much. There is nothing wrong with writing an “inspired by” book. Truth is simply a perspective that changes through the ages. Calling someone a name is a jumping-off point for understanding them a year later. Understanding does not mean forgiving, rather, it means wisdom gained and nothing more than that.
Mike’s stories of his agent life at a Women Writing the West conference in Santa Fe had us in stitches. I write historical fiction based on real people and use their names and speak with descendants. So far, no suits even though the portrayal isn’t always positive. I like the idea of insulating oneself. Good thoughts. Interesting post. Thanks!
This is a question I have been wondering about since I started the book I’m working on. It’s based on a true incident that took place in 1891. So far I’ve been using real names and wondered if I would be able to stick with that, or have to change the names. The book is mainly fiction as I was not there in 1891 and can’t fill in the actual events and conversations. The factual parts I know are from newspaper accounts and court abstracts, so I’m not repeating anything that has not already been in print at some point. Guess I’ll have to get more info once the book is finished.
This reminds of a Flannery O’Connor quote, “Only fiction does not lie.” Evidently the fiction writer can still be sued for defamation in print if the character is recognizable. But if written as the truth, not verified by court action or irrefutable proof, truth can still be sued? I had no idea, again, of so many pitfalls waiting for the ignorant writer. Mike sounds like a good person to know! Thank you.
The catch phrase is “anyone can sue anyone for anything” and that’s what is hard to protect against. The only character in my book that I said something harsh about was named in his ex-wife’s will as getting nothing. She noted, “Anything Charley got would just go to bootleggers and gamblers.” That pretty well spells out his nature.
Excellent post! I too, remember Mike’s stories from the WWW conference. It’s hard to believe people can be so…dumb?!
Thanks for the tips.
Some interesting points. I presume all this would also apply to corporations, organizations, institutions, etc. Raises questions (to me, a novice) regarding use of copyrighted terms used by such groups.
Do you need to use the registered, copyright and trademark symbols when mentioning a product?
As a trained journalist who has taught the subject and is now co-writing a memoir with my husband about his life with Dissociative Identity Disorder (DID), Mike raises some serious questions. We have taken from multiple sources and have tried to secure legal papers — most of which we are told were destroyed after 10 years. Because DID is caused by severe abuse early in life, the manuscript names the perpetrators. He knows what happened to him and part of our reason for writing is to bring at least a couple of them to justice. So you’re saying we can’t or at least shouldn’t name the school librarian who molested him? What if the man is still active in the community? We should use a different name and just let him continue molesting kids? The school board in Arkansas knows exactly who he is but will not divulge more information than that.
This was a good crash course in communications/entertainment law. Thanks for posting!