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Legal Issues in Ghostwriting

Ghostwriters in Disguise

Reed Smith LLP

legal issues in ghostwriting
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”).




Using a Ghostwriter

Choosing to Use a Ghostwriter

using 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?