Legal Issues in Ghostwriting

Ghostwriters in Disguise

Reed Smith LLP


USA March 18 2019


Every time we think about addressing ghostwriting as a recurrent plaintiff-side jury distraction in drug/device product liability litigation, we get earwormed by “Ghost Riders in the Sky.” Whether one prefers the Johnny Cash or Outlaws version of the song – or one of who knows how many other covers of the song (originally written by Stan Jones in 1948), it’s hard to stop thinking about it once you start.

The most inveterate ghostwriters are, of course, lawyers themselves. Gives us a chance (and a fee) and we’ll ghostwrite anything: opinions for judges, reports for expert witnesses (e.g., McClellan v. I-Flow Corp., 710 F. Supp.2d 1092, 1118 (D. Or. 2010)), and (most annoyingly) pleadings for supposedly “pro se” parties. But let a drug/device company provide authorship assistance to a busy doctor or a scientist, and the same plaintiffs’ lawyers who routinely massage (if not outright create) their experts’ opinions start screaming and yelling that something terrible is happening. And yet, there’s no proof (and often not even an allegation) that any of the actual science in the “ghostwritten” article was misstated.

So-called “ghostwriting” is “a fairly common, but little known practice, with a pejorative name would distract the jury and needlessly consume time.” Okuda v. Wyeth, 2012 WL 12337860, at *1 (D. Utah July 24, 2012). Plaintiffs regularly attempt to convince juries that routine “ghostwriting” is something nefarious. Defendants, just as often, try to keep this smoke-and-mirrors type evidence out. We haven’t blogged about this issue before, so we thought we’d take a look at decisions excluding ghostwriting allegations.

Perhaps the most notorious ghostwriting testimony was the inflammatory rhetoric initially admitted in In re Prempro Products Liability Litigation, 554 F. Supp.2d 871, 885 (E.D. Ark. 2008), to support punitive damages. There aren’t many judges – especially MDL judges in bellwether cases – willing to admit they were wrong and reverse a verdict, but this was one. In Prempro “Dr. Parisian testified that the FDA would not be aware of ghostwriting” but “provided no testimony linking FDA regulations and ghostwriting.” Id. at 885. Plaintiffs used these (and other) allegations to bamboozle a jury into awarding punitive damages. Id. at 889, 893, 897 (“Plaintiff asserted that ghostwriting is ‘exactly the type of conduct that necessitates punitive damages.’”) (footnote omitted). Holding that ghostwriting testimony should never have been admitted, the court granted a new trial:

[T]here is no evidence that this practice is inappropriate or that [defendant] supported articles that it knew were false or misrepresented the science. Rather, the articles supported [defendant’s] position on the state of the science. Additionally, there was evidence that ghostwriting was a common practice in the industry.

Id. at 888 (footnotes omitted). On appeal, the Court of Appeals affirmed. In re Prempro Products Liability Litigation, 586 F.3d 547, 571 (8th Cir. 2009) (“we cannot say that the district court abused its discretion”).

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Using a Ghostwriter

Choosing to Use a Ghostwriter

By Georgia Simcox

Ghost writing is not a recent phenomenon. A notable example may be Shakespeare. Although no one is sure exactly who wrote the plays published under the name of ‘William Shakespeare’, it has been suggested that Sir Francis Bacon, Edward de Vere, and Christopher Marlowe were worthy candidates for the ghostwriting position.

A ghostwriter is a professional writer, hired to effectively communicate the ideas of the ‘named’ author, if this is not something they can do themselves. Alternatively, a team of ghostwriters can work on one story to ensure the work is complete in a shorter time frame. However, they are often not given credit for their work, as someone else’s name is placed on top of something they have worked hard on.

It is not just books which are ghost written, but also pieces of journalism and many speeches given by politicians. Many political speeches since George Washington have are known to have been written by someone other than the person giving the speech. Barack Obama’s first notable ghost writing partnership was with Jonathan Favreau, who the former president said was like his “mind reader”.

Taupin has written most of John’s songs throughout his career, including ‘Tiny Dancer’, ‘Candle in the Wind’ and ‘Rocket Man’.

Elton John has worked with Bernie Taupin on his music for years, as the two have an open working relationship. Taupin has written most of John’s songs throughout his career, including ‘Tiny Dancer’, ‘Candle in the Wind’ and ‘Rocket Man’.

Some may argue that the practice of ghost writing is unethical. After all, it means taking someone else’s work and putting your own name on it. But can we really argue that such a practice is unethical when it has been working under the surface for centuries? Two people engage in a contractual agreement to work in such a way, and if they agree to have someone else’s name on their work, how unethical really is it? The ghostwriter is performing a service, just as a tailor would when altering your suit.

Returning to the literary world, author V.C. Andrews was well known for her young adult fiction with family themes. Before passing away at 63 from breast cancer, she hired Andrew Neiderman to continue the series under her name, allowing her work to continue being published posthumously under a ghostwriter.

It is important to note, however, that not all celebrities use a ghostwriter.

It comes as no surprise that many celebrities choose to use ghost writers for their work, whether it is fiction or autobiographical. They have a story to tell and a name to sell it. The professional writing of a ghostwriter will ensure the celebrity’s ideas are well-written and that the novel receives a good reception. If you look at a lot of celebrity autobiographies – take those of Robbie Williams, Katie Price and Victoria Beckham for example – you will see that they have been either completely written by or had help from a ghostwriter. It is important to note, however, that not all celebrities use a ghostwriter.

Celebrity ghostwriter Pauleanna Reid said that something she likes most about her job is the variety. She said: “The thing is, not everyone is a writer. There are people who are obviously extremely smart, but struggle to translate their thoughts onto paper. That’s where working with a ghost writer can help, to develop a person’s voice and help communicate it clearly.”

Celebrity fans seem to react negatively towards the news that their favourite celebrity hired a ghostwriter to write their novel or autobiography. However, the celebrity isn’t a professional writer, so can they really expect them to write it themselves?

Academic ghostwriting in Turkey

Turkey: The big business of academic ghostwriting

From DW.com

In Turkey, many students are using ghostwriting services to write final papers and dissertations. DW takes a look at what has become a booming business.

Turkish universities are facing a new, not very academic challenge: ghostwriting. From bachelor's and master's theses to doctor's dissertations — almost any form of written academic paper can now be ordered, for a price, from specialized companies.

Particularly at private universities, there is a veritable boom in such ghostwriting. Turkey has 63 private universities, most of them established within the past five years.

A short search on online academic forums found that some 50 companies are operating on this ghostwriter market. They ask for the equivalent of between €500 and €3,000 ($567 and $3,400) per paper. That tots up to revenue of more than €25 million per year.

Private universities to blame?

According to Gorkem Dogan, the chairman of Egitim Sen, a union for those working in education and academia, this significant rise in the number of ghostwritten dissertations has been caused solely by the uncontrolled increase in the number of private universities.

Dogan recalled the fact that many university teachers lost their jobs when a state of emergency was imposed following the failed coup of June 2016. Many more than 100,000 public service employees were formally suspended from their jobs, while more than 6,000 academics were made unemployed just by a special decree from President Erdogan.

"It may be hard to prove whether the suspension of these academics caused the marked increase in ghostwriters or not. But it is a fact that the suspensions were another real blow to Turkey's already shaken academic sphere," Dogan said.

The main users: Medical students

A DW reporter pretending to be a student writing his master's thesis asked a representative of a ghostwriting company about the going prices.

The employee said that he himself was an academic. "I am also on the examination board for both the doctoral viva and the thesis defense," he said. "I write any academic paper for 7,000 Turkish liras (€1,200)."

It became clear during the discussion that the company has specialized in medicine, clinical psychology and management. "About 70 percent of the students we cater to are from medical faculties. When we write a paper for them, we make use of the know-how of surgical or orthopedic specialists, for example. The experts we work with receive a monthly fee of €800 to €1,200 from us. Our prices for medical papers start at €1,700," the company representative said.

He said that these academic papers were invoiced. "It is not illegal, but perhaps somewhat unethical," he said. When asked whether there were problems with the examination board, he answered: "I am a member of the board myself and mostly take on the role of the person asking critical questions. What is more, the board includes friends of the advising professor. One will speak out against the paper; the other will praise it in the highest terms. And the third is there to tie up the deal."

No legal penalties

In Turkey, ghostwriting is not subject to any legal penalties. Agencies and companies that write academic papers for money operate under the name of "academic consultants." The fee received is booked under "office work."

If, however, a university does find out that a paper has not been written by a student his or herself but by a third person, the student can expect to be suspended. She or he will also be asked to rework the paper.

Back in December 2016, the Turkish higher education council, YOK, proposed making academic ghostwriting punishable by fines. The council considers such activities as plagiarism. It said that if a university teacher were discovered to have been the author of a student's paper, she or he should face exclusion from the university, which is tantamount to a dismissal. But these proposals remained just proposals.

Read more: Recep Tayyip Erdogan: The sultan of 21st-century Turkey

Ghostwritten papers are less likely at established universities like the Bogazici University in Istanbul.

Difficulty finding evidence

The private universities in the Istanbul districts of Uskudar and Nisantasi are among the institutes that are often suspected of allowing or encouraging ghostwriting. We confronted Sevil Atasoy, the vice chancellor of the Uskudar University, with the accusations that theses at her institute were being ghostwritten for money. She responded by calling on those making such accusations to present their proof.

Atasoy said that five academic staff were on the committee for a thesis defense, one of whom was from a different university. "Our staff are conscientious and work in a highly professional manner," she said. "For every dissertation that is presented, an evaluation is made as to whether it contains any indications of plagiarism, for example. Our advisers accompany every paper from the first to the last line anyway."

To this day, Atasoy said, there has never been a well-founded accusation regarding ghostwriting.

Read more: Turkey and Venezuela: The rise of a new alliance?

'Too few tenured professors'

Vahdet Ozkocak, who heads OGESEN, the union of teaching staff, is of a different opinion. He believes that the number of ghostwritten papers has risen significantly. He said there were too few experienced academic staff and tenured professors. According to Ozkocak, the ghostwriters of the dissertations are, however, very experienced, several of them being themselves academics.

He said that YOK had known about this ethical problem for years, but had never taken measures to curb it. Despite talk of a "new higher education council," nothing "new" had ever eventuated, he said. "We can't solve our problems like this. Setting up a ministry for university affairs is urgently necessary," Ozkocak said.

At established state-run universities, passing off ghostwritten papers was difficult, according to Ozkocak, while private universities saw students only as paying customers. He lamented what he called a massive loss of competence at universities over the past 20 years.

"Without recognition, competence and patriotism, the teachers turn to the unethical occupation of ghostwriting," he said.

Jeff Bezos ghostwriter prospect

Dear billionaires: Please hire me to ghostwrite open letters to your blackmailers

By Corinne Purtill - February 8, 2019

Dear Billionaire,

It is with great excitement that I write to you today in application of my dream job: the ghostwriter of open letters to your would-be blackmailers.

Being a billionaire’s ghostwriter has been my dream ever since Feb. 7, 2019, the day I first read the work of the industry’s founding legend, the person who wrote Jeff Bezos’s Medium post. This is the standard all of my ghostwritten open letters to your blackmailers will strive to meet. If I reach further than others into your enemies’ illicit dealings, it is because I stand on the shoulders of the “No thank you, Mr. Pecker” giant.

As your ghostwriter, I will pre-empt whatever your blackmailer is dangling over you in a tone so unruffled that readers will be utterly unprepared for whatever your equivalent of the cargo shorts thing is. I work discreetly and without judgment. Have you been photographed in a crotchless furry costume? Did you take a quick shot of your junk in between Davos panels? No matter. What I care about is conveying the righteousness of your position in a voice that feels true to your own, and that you retain formidable private investigators whose limitless budget we can lightly reference at the right moment.

A bit about my qualifications: I am a journalist with extensive experience pretending to be a shark, and an expert on both Toblerone and LeBron James. I created a Medium account years ago at an employer’s behest and have been unable to unsubscribe from their emails since. I have a degree in English and a lot of unexpressed anger to draw from. Currently I am a writer for Quartz, which is fine but does not provide sufficient opportunity to do the type of writing I now realize I love best: calm, clear, first-person prose saturated in contempt.

Please contact me at your earliest convenience to discuss this ghostwriting opportunity, and then leave your open Medium letters in my capable hands. You have other things you prefer to work on. Rest assured I will proceed with whatever budget is needed to pursue the facts in this matter.

Sincerely,

Corinne Purtill