by Sara Hawkins
I met Sara on Google+, where I seem to be spending more and more time lately. When I realized that she was both an attorney and someone who understands the world of bloggers, online publishers, and authors, I asked her to write an article that would highlight legal issues authors face, and how those issues affect self-publishers. Here’s her response.
As an author, you probably don’t often consider many legal issues about writing your book. Sure, there’s the contract with the publisher, designer, or copyeditor. Traditionally, for most authors there just weren’t many legalities to consider. That was until traditional book authorship and publishing met the internet and created their lovechild called self-publishing.
We all know the publishing industry has changed. One of the biggest changes is that unless you’re an A-list author you’re responsible for much more in the writing, editing, promoting, as well as publishing process than in the past.
Fewer people shepherding a book in the traditional publishing industry means authors no longer have legions of experts to comb through their manuscript. One thing that can be counted on is that the publisher will have their legal department check your book out before it’s printed.
Not that authors are sued all the time, but when you take the route of self-publishing you also take on the liability that comes with the various legal issues. Most authors, though, aren’t lawyers. You’re experts in your own field or creative-types who spend countless hours developing characters and settings to create an authentic experience for the reader. Navigating the legal hurdles of publishing is now something authors must be concerned with.
Authors are likely aware of the basics of copyright when it comes to their book—they write the book, they own the copyright. But there are a few other key legal concerns that can greatly impact authors and self-publishers throughout the entire process, from conceiving the idea to all the subsequent updates, from pre-marketing to post-publication marketing. And while many authors may not initially see themselves as self-publishers, the changing landscape of the publishing world may eventually lead you down that road. Even if you do go the route of traditional publishing, you will likely still need to have a digital presence, which comes with a host of legal issues that you’ll want to know.
5 Top Legal Issues for Authors and Self-Publishers
1. Copyright of images and graphics
Basic copyright law says that if you create it then you own it. Yes, there are exceptions and nuances, but for the most part you can do whatever you wish with your own creations. However, as an author you may want to add graphics and images to enhance your story or your discussion and it’s easy to turn to the internet to find something you think would work perfectly.
Unfortunately there isn’t a clear-cut statement of whether an author can or can not use an image or graphic found online through a basic browser search. In typical lawyer form I say “maybe”. But that doesn’t help you much. No one wants to publish a book thinking they might get sued.
Today there are many resources where authors can find public domain images and graphics, but as with all things internet it’s up to the user to ensure that the work is indeed in the public domain and freely usable. That may be difficult if your source is a search engine, so using reliable sites can offer some peace of mind.
In addition to public domain images, creative commons licenses are another way to source images and graphics. But, again, you need to know what each of the licenses means and choose images that permit commercial use. If you can’t get permission and there is no Creative Commons or public domain work suitable for your needs, your next avenue is to determine if you can use another’s work under the Fair Use doctrine.
Fair Use is an exception to copyright infringement and allows a third party to use a copyrighted work under very specific circumstances. Unfortunately, there is no checklist or strict reading of this law, creating challenges for many authors. Since you may not have the counsel of a publisher, you’ll need to read up on this concept and determine if your use would fit the guidelines. Commercial works may have a claim of Fair Use, however as with all Fair Use claims it is a case-by-case determination.
2. Copyright of text and music lyrics
The discussion for copyright of text and music lyrics is similar to that of images and graphics, but they are not exactly parallel. With a graphic or image, you’re likely using the entire work, whereas with text or music lyrics you’re only using a portion. It is much more clear that using an entire text or reproducing the full music lyrics would violate copyright, the question now becomes how much can be used so that you’re not.
Traditional publishers may have guidelines, but they’re also willing to defend them if challenged. For self-published authors, being sued for using “too much” of a work may not be a risk worth taking.
Of course, there is still the ability to ask for a license before using the work if you are concerned with the legalities of using copyrighted material. There is, also, Fair Use. However, as was mentioned with regard to images and graphics, it’s not a clearly defined exception.
Unlike the discussion above, though, with text or music lyrics you’re likely only using a portion of the work so there is a stronger argument with regard to the quantity of the work used. Nonetheless, Fair Use goes beyond just a “word count” and you must be able to establish that your use does not interfere with the owner’s rights.
3. Registration of your copyright
While Joel has addressed what has to be on the copyright page of your book, some of you may wonder if you have to actually take that next step and register your copyright. This is one of the areas where most lawyers will agree that the small fee is definitely worth paying. While it’s not required, because copyright of your book exists without registration, to pursue most legal action the work must be registered.
4. Use of brand names and trademarks
In a fiction work, your characters are three-dimensional and may live in the same world we inhabit, with all of the brands and trademarks we’re familiar with. It makes sense that your heroine wears Prada or your leading man is sporting a Purple Label tux, but what do the brands think?
There are several legal theories in trademark that come in to play, “trademark infringement”, “trademark dilution” and “trademark tarnishment”. The most significant concerns for authors are with “dilution” and “tarnishment”. Xerox has been mounting a fight for decades to prevent all photocopying from being referred to as “xeroxing”, as has Kimberly-Clark been concerned with all facial tissues being generically referred to as “Kleenex”.
More recently, Google has brought in their legal team to prevent their trademark from becoming an equivalent to the default word for searching the internet. Using a trademark, whether registered or not, to describe a product or service generically can draw attention to your work and create potential liability. Brand names should be reserved for describing that particular product or service offered by the company.
When it comes to using a brand name in a negative light, authors walk a very fine line. Brand “tarnishment” is akin to defamation, and disparaging use of a brand name is often easier to find as publishing moves to the ebook and audiobook formats. Unless there is a compelling artistic reason to disparage a brand, creating a fictional brand would be prudent. If, however, you feel your story would be compromised without using the actual brand name, seek counsel to evaluate the risks and determine how best to minimize them.
5. What if it’s your work that’s taken?
Without a big publisher behind you, policing your copyright adds to your post-publication duties. If you’ve taken the steps to register your work, enforcing your copyright through the court system is a little easier. Often the difficulty comes in identifying that your work has been copied, but with a well-established community it’s likely one of your readers or supporters will spot the infringement and bring it to your attention. Then what?
For many, the first step is to contact the author (and/or publisher) and tell them they’re violating your copyright. Depending on how much of your work has been taken; you may want to speak to an attorney to find out the best way to approach the author and/or publisher of the allegedly infringing work. If your work has not been registered yet, and the alleged infringement is significant, registering your work should be done immediately.
One of the benefits of online booksellers is you can avail yourself of the DMCA takedown process, which does not require that your work be registered, if you have a good faith belief your work is being infringed. The reporting process is often incorporated into larger bookseller websites, making it easy to report violation and have the allegedly offending book taken down.
Unfortunately, this DMCA takedown process must be repeated for every site promoting the sale or distribution of the allegedly infringing book. In addition, there is the confrontation factor when you have to notify the person whose work you allege is infringing.
In addition to the DMCA takedown process you may likely need to work with the traditional route of copyright infringement notification. Speaking with a Copyright enforcement attorney may be necessary, although you may be able to resolve the matter without escalating it and involving an attorney.
Regardless of whether the book is a physical or electronic publication, it is a multi-step process to getting the book taken down from sale sites, notifying a publisher, contacting the author, and submitting a takedown request to a hosting company if an author is hawking the book on their site.
Part of learning is making mistakes. Unfortunately, with self-publishing mistakes the consequences can be quite harsh. Few people set out to purposely infringe another’s work. But it happens. Authors are not often versed in the nuances of copyright law and may unwittingly find themselves on the wrong end of a copyright infringement conversation.
As authors look to extend their reach beyond a single book, a single act of copyright infringement can be a turn-off to a traditional publisher, movie agent, movie studio, or speaker’s bureau. A self-published author’s credibility is tied into more than just the words of their book.
Whereas an author who is working with a traditional publisher may have multiple checks along the way, self-publishing requires you to wear many more hats. No one is expecting you to become a lawyer along this path. However, understanding just a few legal topics means making more informed choices, avoiding potential liability, and being able to act quickly to protect your rights.
Disclosure: This article and any associated comments are for informational purposes only and should not be considered legal advice. Photo: bigstockphoto.com
Sara Hawkins is the creator of a Blog Law series, which aims to help bloggers, entrepreneurs, and online professionals gain legal confidence. Sara is a licensed attorney providing counsel to entrepreneurs and online professionals. She can be found on Twitter at @Saving4Someday.