Media Attorneys Answer Writers’ Legal Questions
Media Attorneys Answer Writers’ Legal Questions

Photo by Melinda Gimpel on Unsplash

Most writers aren’t lawyers. But writers can encounter legal questions and issues.

The newsletter platform Substack hosted an open discussion with three U.S.-based media attorneys. Substack writers were allowed to ask the lawyers anything they wanted, as it related to United States law. The attorneys, Mike Wolfe, Lea Rosen, and Tim Hwang, answered as many questions as they could.

Below are some of the most-engaging questions that the trio answered.

Protection over what you publish

One writer asked whether or not they have copyright protection over what they publish. They’re concerned with people sharing their words on social media without giving the original author credit.

The attorneys Wolfe and Hwang answered by saying, “Copyright protection attaches the moment someone creates an ‘original work of authorship,’ providing exclusive rights to reproduce and distribute the protected work (among other things).”

But, they added, it can be difficult to enforce copyright violations. “A work needs to be registered with the Copyright Office in order to be protected in court,” Hwang and Wolfe said. The lawyers recommend that writers register their works earlier, rather than later, to ensure protection.

Receiving a cease-and-desist letter

“What should a writer do if they receive a cease-and-desist letter?” Lea Rosen fielded this question. Her first piece of advice is not to panic. She said it’s difficult to tell whether or not a cease-and-desist letter has merit, or if it’s just an intimidation tactic. “Treat it seriously as a matter of first impression,” she said.

After not panicking, she recommends reading the letter. Then she suggests contacting a lawyer. An attorney can help determine the legitimacy of a cease-and-desist request.

Being sued for defamation or libel

“When can a writer be sued for defamation or libel?” This question came from a writer who’s concerned with enforcing community guidelines. The asker pointed to a real-life example of a poet suing two people he claims caused him professional harm through defamation and libel.

Attorneys Hwang and Wolfe admitted this is a developing area of law. Their guidance is that if you’re going to make a claim about someone or an organization, it “should always be based on a reasonable belief. That’s where the law tends to offer greater protection.”

Wolfe and Hwang added that writers should be extra cautious when talking about people who aren’t public figures, such as politicians or professional athletes.

Copyright issues with linking to other articles

A question about copyright issues linking to other articles focused on headlines. The writer asked if they’re allowed to change a headline when linking to an article.

Mike Wolfe answered by saying standalone headlines are generally not copyrighted. He said, “Linking to lawful, publicly posted material is going to be just fine anywhere that I know of.”

Register as an LLC

A writer who runs a political newsletter asked if they should register their newsletter as a limited liability company (LLC). And, if they did so, would they owe additional taxes.

Wolfe and Hwang said there are pros and cons to registering as an LLC. On the pro side, a writer’s assets are protected from lawsuits if they’re operating under an LLC. The attorneys said a newsletter incorporated as an LLC shouldn’t owe more in taxes. At the same time, registration costs money. And regular paperwork is required to maintain LLC status.

The attorneys concluded by saying whether or not a writer should file as an LLC “depends on your risk preferences and the scale that you’re operating your newsletter at.”

Be informed

Most of the questions asked in Substack’s open thread related to running an email newsletter. But it applies to many writers, even those without a newsletter.

Questions about copyright, liability, and how to protect yourself are essential parts of establishing and growing your writing business. The insight above can be helpful. But as the attorneys Rosen, Hwang, and Wolfe stressed, every situation is unique. Each of us writers needs to be informed about our own needs and legal requirements.

Here are two additional resources that Wolfe, Hwang, and Rosen recommended from the Center for Media & Social Impact:
['Nicholas E. Barron']
['Writing', 'Advice', 'Law', 'Copyright', 'Legal']