Home » Copyright/Intellectual Property, Kristine Kathryn Rusch, Legal Stuff » Business Musings: Ghostwriting, Plagiarism, and the Latest Scandal

Business Musings: Ghostwriting, Plagiarism, and the Latest Scandal

26 February 2019

From Kristine Kathryn Rusch:

Recently, I’ve been getting a lot of questions from interviewers that I have never gotten before. They ask, “Are you going to join the latest trend and hire ghostwriters to put out more books in your series?”

So far, I have managed to refrain (at least on podcasts) from responding, “Are you fucking kidding me?” and simply say, “No, I’m too much of a control freak.”

But I have a longer answer in my head. The answer is complicated. Let me see if I can break it down for you.

Readers don’t buy plots. They buy a writer’s point of view, her style, and the way she tells a story. Some idiot whose name I will not repeat and whose blog I will not link to wrote in response to the latest scandal (which I will discuss below): “What constitutes plagiarism in a genre in which formulaic storylines and themes are the norm?”

If the idiot understood copyright, she would know the answer to that question: What gets copyrighted is the form the work takes, not tropes or the formula.

Readers like tropes and formulas. They like familiar stories well told. They also like familiar stories with twists that take the familiar and make it something new.

Readers follow writers, as a brand, and readers are very smart. Readers know that a book by James Patterson will have one voice, but a book by James Patterson and Maxine Paetro will have a completely different voice. Readers will often say (even in the reviews) that they might like Patterson by himself, but refuse to read the books he’s written in collaboration with someone else.

The voice changes when someone else writes a book in the same series. Ian Fleming’s James Bond is not the same as Jeffrey Deaver’s, no matter how hard Deaver (whose work I love) tried to catch Fleming’s Bond.

If I want to remain true to my characters and my readers, I will never bring in a ghostwriter. Never.

If I worked with another writer, that writer would get credit in a shared byline.

. . . .

I’m also aware of the fact that writing in someone else’s universe is a skill that not every writer has. I’ve played in other people’s universes. I’ve written more tie-in novels than I want to think about. My favorites were Star Trek novels, but I have written a Star Wars novel, and X-Men, and several others, often in collaboration with my husband Dean. Note that these are media properties that already have more than one writer on board. In fact, they have an entire team of people putting the properties together, because media properties are, by definition, assembled collaboratively.

And still, people oversee these novelizations. The licensors review them with a fine-tooth comb. They make sure that nothing violates the rules of the universe and that the characters are consistent and that everything fits into what the fans expect.

. . . .

Because fans get angry when someone writes something that doesn’t fit in an established universe. Some established universes bring in lawyers. And all involve contracts state in unequivocal terms that the writer is writing original material in a particular universe, and that the words and writings are the writer’s own, not cribbed from other sources.

Here’s the thing about contracts: the lawyers who write them try to see every eventuality, but sometimes they miss. And when they miss, they rectify that miss in the next contract. So the fact that there are long clauses about originality and plagiarism and libel and all of those things in traditional publishing work-for-hire contracts means that somewhere, somewhen, someone plagiarized or libeled someone in a work-for-hire project.

. . . .

When I watched the collaboration start in the indie world—and when one big selling KDP author told me that he doesn’t have contracts with his collaborators because they all trust each other, well, I just about had a fit. I tried to talk him into contracts, but no, that’s a trust thing, apparently. And it’ll bite him one day, in a very bad way.

Then, shortly thereafter, I learned that dozens of big selling indie authors can’t produce books fast enough to game the Amazon algorithms, so those writers started hiring ghostwriters to produce more books, so the writer had time to write more books too.

I remembered thinking: that’s not how it works. A writer with a dozen ghostwriters would be spending all her time overseeing those writers, not writing more. She’d have less time not more.

Unless she hired someone to oversee them. And then she’d have to trust that person implicitly. I thought about the infrastructure it would take to maintain that, the readers and the lawyers for the contracts and thought, well that’s a blog post one day, warning writers away from doing this.

. . . .

In the last twenty-four hours, things got even more complicated. A few people Serruya had hired as ghostwriters –and who quit when they saw what they had to work with—claim that Serruya cobbled the books together from random quotes from various novels, and had the ghostwriters polish the damn things.

. . . .

[W]hat’s to stop the ghostwriters from plagiarizing? It’s not their name on the manuscript. And I know some of the writers who are hiring ghostwriters. Those writers aren’t vetting the books. They’re not doing the kind of due diligence that college professors and high school teachers do to see if the writing is plagiarized.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG will add a note to the description of standard legal contracts in the OP.

Standard contracts that a large organization uses never get shorter. Over time, they grow. When a situation arises that hasn’t been clearly addressed in the contract, a new contract provision is drafted and inserted. If a new court decision comes down relating to the subject of the contract, a clarifying paragraph is added. If a lawyer for the company sees a similar contract from another company that includes a provision the lawyer hasn’t seen before, the new provision will be dropped into the standard contract.

If the contract is used over a period of several years, it grows and grows and grows. A ten-page contract becomes a twenty-page contract on its way to becoming a thirty-page contract.

If counsel is not paying attention to a long contract, a new provision might conflict with or create an ambiguity in the meaning of a prior provision in the contract, so the careful lawyer will do at least a quick review of the entire document to avoid this problem.

On the question of copyright protection for contracts, technically, there is nothing in the U.S. copyright laws that precludes registering a contract for copyright protection. Undoubtedly, it has happened at some time, but PG hasn’t heard of any litigation filed by one lawyer successfully asserting infringement of a copyright on a contract by another lawyer. (He would be happy to learn about such litigation in the comments if anyone knows of such happening.)

Law books containing form contracts of various types are available for purchase through major legal publishers. As far as copyright for individual contracts in such a book, the purpose for which attorneys purchase such publications is to use them as a basis for drafting contracts for their own clients. One might argue an implied license to do so accompanies each such book.

Back to a copyright claim for an individual contract, PG suggests it might be difficult for the author to establish he/she had not utilized material created by others in the creation of the contract and to demonstrate the contract as a whole was the result of original creative work by the author.

PG will note that an interesting lawsuit was filed several years ago by an insurance company which had labored to create a plain-English version of its previous policies and related documents which were definitely-not-plain-English. Another insurance company copied the plain-English versions verbatim and was sued by the first company. In that case, the court found the first company had a valid copyright to its documents and the second company had infringed those copyrights.

In the fraternity/sorority of lawyers, PG suspects any attorney who claimed a copyright in a contract form would certainly be regarded as a jerk. Again, lawyers copy from the legal work of other lawyers all the time, in part, as a way of saving clients the expense of paying a lawyer to create a contract from a blank screen.

Copyright/Intellectual Property, Kristine Kathryn Rusch, Legal Stuff

18 Comments to “Business Musings: Ghostwriting, Plagiarism, and the Latest Scandal”

  1. I’ve had friends whose major publisher contracts have a clause in which they cannot share that contract or their sales figures with anyone but their agent. One author got in a sh*tload of legal trouble when she did, and no big publisher will touch her books after many years. That’s also one of the problems with author sales data collection. Because of the secrecy required by contracts, many authors are afraid to share that info., even it’s anonymous.

    In defense of a big author having a newbie as a co-writer, for years in the science fiction/fantasy community, big authors would share their world and add their name to other authors’ works in order to build the newbie’s resume. (The fight for the few open slots in this very small market were brutal.) I’m sure that those authors writing under the James Patterson brand have that in mind when they agree to this deal.

    Writers who use ghostwriters thinking that readers won’t notice the difference are idiots. A vast majority of plagiarism cases start because sharp readers recognize the style and voice of another writer and contact the original writer or publisher.

    • I remember how one of Marion Zimmer Bradley’s friends finished her manuscript after MZB passed.

      The difference in voice was sudden and stunning. The new writer’s name wasn’t on the book at all, but I knew who it was by the end of the first page.

      There’s no way to miss such a sudden change.

  2. I remembered thinking: that’s not how it works. A writer with a dozen ghostwriters would be spending all her time overseeing those writers, not writing more. She’d have less time not more.

    If I were an android I’d have blue screened just now, because I just can’t compute the thought process of the writer Kris is talking about.

    Back in the day, reporters used to run up to me with corrections they needed to make for their breaking news stories, after I’d posted them online. They’d apologize for “bothering” me with their updates.

    And I’d reply, “Are you serious? Your name is on this story. You have every right to be conscientious.” I didn’t care if they were “bothering” me; I cared that the story should be as accurate and complete as possible. That was for non-fiction. Fiction would involve so much more: the voice, the style, not to mention the execution of the premise.

    Does not compute. Does not compute.

    • Maybe the ghost-herder has no distinctive voice:

      https://kriswrites.com/2016/02/03/business-musings-serious-writer-voice/

      …and has recruited a horde of writers able to suppress theirs.

      • I honestly never considered that possibility. It’s odd to think of not bringing your personality to whatever you’re writing — I’m particularly apt to amuse myself whenever I have to write something that’s otherwise dull. When building a webpage for my old paper, I’d comment out the beginning and end of the ad widgets by writing “advent of the adblock / here endeth the adblock.”***

        “I love you,” she lied is the sort of writing I love to read; I associate it with the kind of storytelling that keeps me laughing on every other page. It’s surprising, and surprises are good for building interest. The other option, not so much.

        So you may have a point, that the ghost-herder probably doesn’t bring much personality and verve to her stories. Unfortunate, but I guess that would explain her approach to ghostwriting.

        ***upon closer reflection, I could see why my editor insisted I “keep the code boring.” You never know when you’ll get sued. But fiction shouldn’t have that issue.

        • Richard Hershberger

          My take on the ghost-herder (I like that, by that way) is that voice, much less art, has nothing to do with it. This is strictly business. The point of the high volume is to game the Amazon algorithm, keeping this stuff up front. I assume the quality is generally terrible, but presumably a successful gaming of the algorithm will result in enough sales to make this profitable.

          • Not necessarily terrible.
            In fact, true success requires decent writing. The idea is to keep readers coming back over and over for more of the same. The whole point is the basic mantra of the BPHs: the same as xxx, just (slightly) different.

            Remember, this is an old, old practice, going back 100 years.

            Think Doc Savage, the Shadow, all the classic pulps.
            More recently, Mack Bolan; there really was a Don Pendleton who started it all. Just as Ian Fleming started the steady stream of James Bond books and movies.

            Or, think of Eric Flint’s 163x project. He gives full credit to the actual writers but the series just goes on and on well beyond what he intended and well beyond what he himself might be able to research and produce because the underlying concept has legs. And it has an audience. Cha-ching.

            Brand writing is neither new, limited to gaming algorithms, nor inherently “scammy”. It’s just another business model. Sometimes a creator intends it, sometimes they stumble into it. Sometimes they keep it to themselves, sometimes they bring in collaborators. If people are willing to pay for it, why not? Isn’t that the whole point of commercial writing?

            It’s a whole spectrum of series storytelling models being monetized: whether it’s one author spinning story after story in the same milieu because his publisher won’t accept anything else from him (Piers Anthony) or a variety of authors intrigued by a concept, leading to a shared world (Thieves World, Wildcards), or a team of ghostwriters feeding a pulpish series, Brand writing takes many forms. Most are legit and even readable which is why the true scammers are so noticeable.

            So yes, it’s all about the money but that in itself is nothing to be ashamed of. Doing it sloppily, incompetently, stealing the work of others… whole different story.

            • Richard Hershberger

              As a former avid reader of the Hardy Boys, who knew even then that Franklin W. Dixon wasn’t a real person, I totally get brand writing. This feels different. Yes, brand writing depends on a predictable standard of writing, because it is selling the brand. I don’t think that is the case here. The idea isn’t to establish an author’s name as a go-to brand for a devoted following, but simply to come up prominently on the Amazon page. Some small fraction of people will click on “buy” for that reason alone. Keep the costs of production low enough and this can be a profitable business model. It depends on an Amazon algorithm that favors high numbers of titles and recent releases. In other words, the author’s name is a brand, but aimed at Amazon rather than the readers, and Amazon doesn’t care about minimum standards of literary quality.

              • Hmm, targeting the distributor as your customer is tradpub thinking. I’m not sure how successful they can be in an environment with free samples, quick returns, and KU.

                I don’t doubt some are doing it but I do doubt how many are successful ($$$) at it.

                The product still needs to be moderately readable to pass scrutiny or avoid getting returned because in the ebook world readers are increasingly moving away from stockpiling to just in time buy-and-read.

                Getting readers’ attention is only half the game. Keeping it long enough to cash the check is a different story.

                • Richard Hershberger

                  “targeting the distributor as your customer is tradpub thinking”

                  Less so than formerly. One of the more interesting trends is publishers pushing direct purchases from their own sites, including offering discounts. This would have been unthinkable just a few years ago, but half of paper book sales are through Amazon, and publishers regard Amazon as the competition. Keeping Ingram happy becomes less of a priority.

                • Felix, I don’t disbelieve you but is there real evidence – not just anecdotage – of a move from stockpiling to buy-and-read?

                  I’ll admit that I have about a dozen private wishlists for e-books I hope to read someday – if I live long enough – but I also have a bunch of authors and my Price Too High wishlist on eReaderIQ so I can buy (stockpile) when things go on sale. And is the whole success of the likes of Bookbub not predicated on a stockpiling model?

                • No smoking gun but there’s a few empty cases lying around to add to the anecdotal evidence.

                  The most compelling to me is the flattening of sales for name authors. There total sales don’t seem to have dropped much but they are taking longer to reach their normal levels.

                  A slightly less smoky hint is that the decline in tradpub “bestseller” launch week numbers is bigger than their total sales drop. Again, the books are moving but more slowly. So even with print the traditional rush to buy before title goes away doesn’t seem to be there.

                  Between digital and used books the pressure to stockpile seems to be lower. Which is what I hear on Mobileread and other reader sites. I’ve also heard of people culling their free ebooks and being less quick to jump on freebies. A lot of the reports of declining sales may be coming from unread books rather than people reading less.

                  Bookbub has been taken over mostly by tradpub backlist, no? That puts it more in line with bargain seekers than front list stockpilers.

                  Bargain seekers being opportunistic shoppers you would expect them to be intermitent buyers rather than steady stockpilers lagging their regular TBR lists.

  3. One of PG’s tangents brings some relatively recent controversy to mind: Do Lexis/Westlaw violate a lawyer’s copyright when they post copies of that lawyer’s pleadings or briefs online, in editable form?

    The answer: Almost certainly not. And the lawyer who complained was treated as a jerk by many in the profession (I explicitly do not make any statement regarding him). A few years previously, a big class-action firm tried the same thing… and everybody (even, or perhaps especially, other class-action lawyers on the “same side”) knew that they were jerks long before that.

    But what this really comes back to is the definition of “original” that the Supreme Court has said is an essential part of copyright, as a constitutional imperative (Feist). That’s certainly a more-prominent issue for works of fiction than it is for boilerplate contracts, <sarcasm> but that probably means that royalty statements are copyrightable given that they’re usually “creative nonfiction” at best and outright fiction most of the time </sarcasm>.

    • C.E. – With respect to objections to publication of pleadings and briefs on Lexis/Westlaw, there’s also the issue that a pleading in a court case becomes a public document when it’s filed. The only exception I can think of offhand is if the judge seals the file for some reason in which case it’s still a public document, but access to it is limited.

      Additionally, an attorney is acting on behalf of a client and explicitly makes all court filings in the name of the client. That sounds a bit like a work made for hire to me.

      For the author of a pleading, the right to copy without the author’s consent shouldn’t be any surprise. Open records laws abound. Is the court clerk violating a copyright when she/he makes a copy of a pleading for a newspaper reporter?

      If a newspaper elects to publish a complete copy of a pleading, is a lame copyright claim going to trump the First Amendment and the interests of the public in receiving full information with respect to the conduct of the courts?

      Would a judge be interested in a motion to cite an attorney for contempt of court if the attorney was interfering or attempting to interfere with the use of a copy of court document by someone else?

  4. I did say that the relevant legal subcommunities considered them jerks… even (especially?) after they sent cease-and-desist letters to other lawyers asserting copyright in the respective pleadings and briefs and threatening an infringement action. Needless to say, to my knowledge (and I’ve looked) no infringement action was ever actually filed.

    The problem is that the Copyright Act of 1976 does not provide a means for an author to repudiate the copyright in a copyrightable work. The copyright comes into effect upon fixation, and lasts until expiration. Sure, failure to register limits means of enforcement (although rights in unregistered works certainly can be asserted, such as through a DMCA notice). But this is a blind spot in the statute, which otherwise requires a writing to do anything with ownership of a copyright. Under the 1909 Act, repudiation arguably occurred when the work was published and not registered within five years thereafter — even for “private letters” and such.

    But this is getting rather too tangential. Even for me.

    • Good points, as usual, C.E.

    • Myself, I would view any submission to a Court as carrying an implied non-exclusive assignment of copyright. Written, video deposition, whatever (fixed in tangible form at submission – verbal arguments, as fixed in tangible form by the Reporter, are of course original and sometimes creative, but not in their tangible form).

      Ah, well, as noted, we are probably a bit far down the rabbit hole.

  5. Readers don’t buy plots. They buy a writer’s point of view, her style, and the way she tells a story.

    Of course they buy plots. And some buy POV, and some buy style. Others buy character development. Some even buy diversity. Consumers buy all kinds of things, and don’t even think about what suppliers want them to do. Suppliers don’t speak for consumers.

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