What is the Legal Liability of a Ghost Writer?

Question by Sushrut Karmarkar, Purdue University.

Jurisdiction – India, USA

A ghost writer is a person who has written a work on behalf of someone else without getting credit for the work.[1] The person for whom the work is written and is given credit is the “guest author” while the ghost writer remains anonymous. Ghost writers are commonly used for writing autobiographies, speeches, research papers, and books.

Copyright in Works Written by Ghost Writers

Copyright generally vests with the original author of a work.[2] Since the ghost writer is the first author of the work, the copyright for the same would originally vest with it and not the guest author.

However, ghost writers are required to enter into written contracts to assign the copyright to the guest author. Such contracts are entered into at the time of commissioning the work from the ghost writer. The assignment contract would contain details such as –

  • Rights assigned – any or all of the right to reproduce, translate or create an adaptation of the copyrighted work can be assigned;
  • Compensation – monetary or other remuneration paid for writing the work;
  • Moral rights – the two moral rights – right to be recognized as the author of the work (paternity) and right to prevent derogatory treatment of the work (integrity) cannot be assigned. They can, however, be waived through the contract in some countries. The right to paternity of the ghost writer will have to be waived for a valid assignment.
  • Confidentiality – the ghost writer will be required maintain confidentiality about its role in creation of the work. This clause continues to apply even after the termination of the rest of the agreement.
  • Other terms – if either party wants to introduce any more clauses they can do so. For instance, the liabilities of the respective parties can be specified or the ghost writer can be prohibited from resorting to plagiarism.

Legal Liability

The manner in which the ghost writer is required to perform its duties will usually be stipulated in the contract. If the ghost writer fails to abide by the contractual conditions, the guest author can initiate action for breach of contract. For instance, if the contract prohibits plagiarism and the ghost writer engages in the same, the ghost writer can be held liable for the violating the contract.

The extent of liability of the parties can also be specified in the contract. Generally, contracts stipulate that the ghost writer shall be liable for the part written by it and the guest author shall be liable for the portion written by it (in case both have authored portions of the work). In such a clause is present and the ghost writer has authored the entire work then he can be liable if the data contained in the work is false or incorrect.

If there is no liability clause in the contract, then both – the ghost writer and the guest author – can be held liable if any harm arises due to the written work. For example, if a physician relies upon an article containing false or manipulated data and recommends a medicine to a patient that causes injury then ghost writer and the guest author can both be held liable for the injury caused. The action would be initiated against the guest author because the article would be published in its name who would then likely implead the ghost writer as a party for writing the article.

Legal and Ethical Issues with Ghost Writing

The practice of ghost writing has been severely criticized for being unethical and unlawful. Authors have argued that if a guest author takes credit for an article written by another person, it amounts to legal fraud.

Fraud is defined as misrepresentation of a fact made knowingly with the intention of taking advantage.[3] Ghost writing, especially of research papers, clearly falls under this definition. Research papers are authored by ghost writers but published under a reputed guest author’s name to improve the value of the paper and chances of publication. There is misrepresentation in the actual authorship which is done intentionally to gain the advantage of securing publication under another’s name.

To eliminate ghost writing, the World Association of Medical Editors has stated that all submitting authors have the responsibility of naming all contributors to the work. If the same is not done, all parties who worked on developing the article can be held responsible for ghost writing. The International Committee of Medical Journal Editors has laid down guidelines to prevent ghost writing which state that a person claiming credit as an author must –

  1. Make substantial contributions to conception and design, acquisition of data, or analysis and interpretation of data;
  2. Draft or critically revise the article for important intellectual content;
  3. Give final approval of the version to be published;
  4. Agree to be accountable for all aspects of the work in ensuring that questions related to the accuracy or integrity of any part of the work are appropriately investigated and resolved.

Under these guidelines, ghost writing is not possible because guest authors do not fulfil the first two conditions. Also, the guidelines impose liability on the submitting author to ensure that the work is accurate and correct.

Featured image from here.

[1] https://en.oxforddictionaries.com/definition/us/ghostwriter.

[2] For example, section 17 of the Indian Copyright Act; §201 of the Copyright Law of the United States of America.

[3] Similar definitions are uniformly followed in most jurisdictions. Rakes v. Life Investors Insurance Company of America (2009) [U.S.]; Commissioner of Customs v. M/S. Aafloat Textiles (2009) [India].


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s