5 Top Legal Issues for Authors and Self-Publishers

by | Mar 8, 2013

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.

Conclusion

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

self-publishing lawSara 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.

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169 Comments

  1. Kevin Rice

    I am currently working on a book with a very dear friend. He is an old minster and I am a well published medical research who is also a minster. The book is a religious book as I am sure you have concluded. I have published many medical peer review articles with multiple authors but I have never published a book. I have written chapters for text books before but that is a strange publishing field.

    My question is how do you define authorship with multiple authors on the same book. I have noticed that some book with two authors list “First Author and Second Author” others list “First Author with Second Author” what is the difference ?

  2. M. E. Bakos

    Long story short. I wrote and sold all rights to several short stories to a magazine that is now defunct. It was bought out by someone else. I did not receive payment for my last story it published.

    I want to rewrite one story that the original company published 10 years ago, (I did get payment) and self publish on line. Is there any problem with this? Do I need to request rights back? How do I do this? Or is it too old to worry about? Thank you.

  3. Robbie McDerment

    Hello, I wrote my own Star Wars episode 7 Script. My first, a few years ago. I’m refining it to final. And I really don’t want anything but peeps to read it. I wrote it for 2 very certain reason. Most willnt agree what I did to achieve those reasons. But id like to read/hear them with out getting sued. Thank you for your time.

    • Sara

      You don’t come out and ask a question, but I’m thinking you’re wondering what you can do with your script.

      First, the Walt Disney Corporation owns the rights to Star Wars so your work likely infringes on their Copyright. Many people, however, write what is known as “Fan Fiction” and publish it on various websites. Fan Fiction never asserts rights and is not offered in a commercial way. Much like people creating videos of themselves singing their favorite Disney song, Fan Fiction is often treated on a case by case basis as to whether the copyright holder will pursue action. What you’ve created is called a Derivative Work, for which the Copyright holder has exclusive rights.

      Second, if all you want is for people to read it and you don’t want to publish it or sell it there are likely Star Wars fan sites that publish this type of work.

      Hope this is helpful.

      Sara

  4. Claire

    I would like to write about my experiences as a patient. I don’t intend to identify practitioners so would take steps to avoid such, however I’m not sure where I stand legally in mentioning the health authority involved, in fact can I even say “nhs” for example?

    Thank you in advance

  5. David

    Hi guys,

    so to clarify part: 4. Use of brand names and trademarks
    if I’m writing a book and it involves basketball for example, let’s say the NBA.
    Am I able to mention the teams names, say as an example “we were in the crowd watching the NBA game Lakes and the Knicks at Staples Center” or would it need to be made up names, in made up arenas, and a made up league?

    • Sara

      David, in typical lawyer fashion I’m going to say it depends. There is context that would need to be known and whether or not it’s even germane to the story. Unfortunately, there is no one answer.

      • David

        Thanks…. it’s relevant to the story.
        here’s an overview to show the type of context:

        Jack is involved in horse racing in Kentucky, works with a stable, and a few of the local jockeys. He’s heard of people trying to ‘fix’ races, and is trying to find out more information.

        Now, could I use the Kentucky Derby, or Churchill Downs (the track) just as historical references, or places of location, ie: Jack is spending a day at Churchill Downs where one of his fictitious horses is running in a fictitious race, as a lead up to the world-famous Kentucky Derby on the first Sunday in May

        hope this sheds some light.

  6. Sharon

    A top publishers published my books eight years ago. They haven’t given my my rights back (my agent asks every six months), although they haven’t sold a book in years.

    If I want to self publish those stories, how much do I have to change them without getting into trouble?

    • Joel Friedlander

      Sharon, it’s unusual in my experience for an agent to allow an author to sign a contract without a “reversion” clause that includes the rights reverting if the title goes out of print. It’s one of the main clauses in these agreements. Any story you write based on your previous work might be seen as a “derivative” work and therefore still protected by the original copyright (and license to the publisher). I’m not a lawyer, but I think you need one to extricate yourself from this situation.

    • Sara Hawkins

      Sharon, agree with Joel that the contract likely has a clause regarding reversion rights. You should examine the contract and see what it says about such rights and if it is silent then definitely request the rights be returned to you.

      Given that your agreement is from 8 years ago it may not have mention of electronic media, which is posing some difficulties for authors now since nothing is really “out of print” with on-demand printing.

      Best of luck,
      Sara

  7. Rob

    Hi Sara,
    I read your article and I would thank for trying and helping us, (self-publishing) writers, with your legal counsel and advices.
    But I have a few questions related to a non-fiction ebook. This specific kind of writings is rarely treated and I found very little to help me in my search for answers.
    I would really appreciate an answer since I can’t consult a lawyer.
    I’m writing a book on an international company (Company X) and its fans. I intend to ‘speak’ extensively about its strategy and/or marketing choices, its products and services, comparing them with what the competition has to offer. I’ll be saying that Company X products and services are definitely not the best while providing proof and evidence and sources for (most of) my claims.
    I’ll also focus on its fans, the false ideas, believes and claims they help propagate (indirectly and directly going after Company X’s image –brand equity) and prove them wrong.
    So, I won’t depict Company X or its fans in a favorable way yet will cite its name and products/services a lot.
    So, here are my questions (they are 2 essentially on fair use):
    – Can I do it without risking a trial because I would simply analyze/criticize actual products, services etc… Like a journalist would? And even so it’s to criticize them.
    – Can I use a picture/drawing/image containing Company X’s logo on my cover (knowing that the title will by itself imply that Company X doesn’t endorse my work in any way)? Even so it’s simply part of the image and not the only focus of it? What if it’s a caricature containing a reworked logo, not the actual logo but recognizable enough to know whose logo it is? Could I use a pic of a product?
    A secondary one to this would be if I can use Company’s X products image inside the book to actually show what I’m talking about?
    That’s more than 2 questions, sorry… ;-)
    Thank you in advance for your answers.

    • Rob

      And I forgot: Can I use the name of Company X in the form of “Company X’s fans …..” in my title since it will be the topic of my book?

      Again thank you for sharing your knowledge and, hopefully, for answering my questions.

      • Joel Friedlander

        Rob, I don’t think these are the kinds of questions that are best answered in a blog comment, so I would suggest you contact an intellectual property lawyer so you can go into your issues in the depth that they deserve.

  8. Helena Garilano

    I would like to publish my first digital book on Amazon.com . What do I have to know about what taxes I have to pay and to who and what record keeping I need to do. ? Can I use Quicken to keep records. What records must I keep to pay taxes? What deductions can I take . I will be writing 4 books. I am publishing online only , do I need a business license and what does my state require if any ? I live in New Jersey.

    • Sara Hawkins

      Helena,

      You’re asking for a lot of information that Joel covers on his website, and for which there are excellent author resources. Joel has a book that may be very helpful, as well.

      Unfortunately, the questions you are asking require specific advice that I can not provide. You may want to consider joining a few author groups on G+ or FB.

      Best of luck,
      Sara

  9. Angela Jane Yu

    Hello,

    Thanks for these information they are very helpful. I am just wondering about one thing. I signed a contract in a publishing company. It’s been a year but still they haven’t paying me and the book is going to be released this year. My concern is, what is my stand when the publisher releases my book without paying me? In the contract, when to pay the author is not inlcluded. What if they release the book without the payment? Are there legal matters for this that I can claim? I hope for your response. I’d appreciate it so much.

    Thanks,
    Angela

    • Sara Hawkins

      In the US, payment terms would be a material part of a contract. Overlooking this is why it’s very important to have an attorney review contracts before signing them. With your situation, if you are unable to reach an amicable determination you will likely need to seek legal counsel and find out what your options are based on both contract law as well as what is in the contract. If the contract requires arbitration, suing won’t really help. Look at your contract and find out how a breach is to be resolved.

      Since you have a written contract, that will likely govern the relationship so it’s impossible to know what you can claim.

      Best of luck.

      • Angela Jane Yu

        Hi.

        Thank you so much. Since when to release the payment is not included in the contract I will seek legal counsel. Thanks for the reply. Appreciate it much.

  10. ashley

    Hi

    Thanks for all the really useful content, fascinating! I wondered if you had a moment to share some advice. I am in the process of finishing an educational ebook. Nothing about the content is new, in so much as it is based in fact and well documented in many other books and online resources, but the way I talk about the facts and exercises that I offer to help potential students are based on my own teaching experiences. The ebook will be a self-study resource with embedded audio as well as being an accompaniment to my own private teaching. I also intend to make self-study video versions of the content. Both the ebook and videos will be sold initially through my website, but I might also be interested in using amazon or other established marketing platforms. I want check for potential plagiarism before launching these products, and wondered if you could point me in the direction of some trusted and rigorous service providers? That would be fantastic and much appreciated! Thanks in advance, Ashley.

    • Sara Hawkins

      There are several ways to check for potential plagiarism. Search for “plagiarism checker” and you can find options. Everyone seems to have their favorite, so it’s best to try a few.

  11. Nate

    Hi
    I’m wondering if you can help me. I’m in the middle of writing my first book and know nothing about legality. One of the subjects that I’m covering requires the telling of first-hand, real-life stories. However, all the stories I’ve gathered are either home- made interviews that I’ve found on YouTube, clips of someone’s personal real-life experience that was told on a TV show that I found on YouTube, or written stories or filled-out questionnaires that I’ve found on websites. I’m wondering what my limitations are in describing these real life stories? For example, is it okay to use the story? And if so do I simply change their name or can I use the person’s actual first name without using their last? Do I need to reference where I found the story? I’m asking because it’s important for me to be very specific about what happened in the story, and changing anything except the names would make the story entirely useless to me.

    Thanks in advance for the help!

    • Sara Hawkins

      First, whenever using another person’s work, regardless of copyright issues, you should always cite the source to avoid allegations of plagiarism.

      As for using videos/content that you’ve found online in your book, there could be significant copyright issues as there would be a presumption that the work is subject to copyright.

      Changing a name/identity may or may not be sufficient. This would be a concern under several legal theories, especially publicity rights and defamation.

      You raise a number of legal concerns that can’t be answered in a simply reply. You may wish to consult with an attorney in your area or one who specializes in book opinions if these issues are of significant concern.

  12. Dennis

    Dear Sara my book is based on my legal fight and is full of accusations with legal documents to back up those accusations and in truth would be very damming to those concerned, but ultimatley would prove the part they played in the case, as i am going to self publish and am not worried about them suing me, is there anything i need to worry about in any other way.

    thanking you

    Dennis

  13. Julian

    perhaps you guys can help, I’m publishing my work on Kindle, a collection of 30 something poems, some of the work may be regarded as ‘politically incorrect’ ( issues such as social welfare, policing, freedom of speech, homosexuality ) though no attacks are made, no personal things are being said, and most of it is depicted in a sarcastic way, you think I can get away with it? are there legal limitations to the content of the work? like I said, I’m not slanting anyone, or anything, no beliefs, no cultures, etc, just approach the matter in a sarcastic way. also, I’m in UK, where laws are probably different ( but not by much ) than US. thanks

    • Sara Hawkins

      Julian,

      It’s not illegal (well, in the US and UK at least) to write things that some people may find uneasy. The idea of something being “politically incorrect” means different things to different people. And in some countries may be highly regulated and monitored. There is a big difference between something that is offensive to a person’s sensibilities and something that is illegal.

      If you are concerned, definitely seek legal counsel directly.

      • Julian

        thanks for your reply Sara, you make a lot of sense. I guess I’m a little paranoid because it amazes me how little freedom of expression we have these days, and how everything is taken the wrong way. just the other day i offered to help a girl at work lift a box because it was to heavy, and she accused me of being sexist for thinking that the weight might be a little too much for her because she’s a girl, when all i did was offer my help. no sense in this world, anyway, I won’t be seeking legal advice, as there is no crime in creative work. besides, I’m not offending anybody, so..

  14. Rina Peru

    Thank you for this info, Sara. I’m now writing a romance novel which involves the mention of military bases just because my main male character is a military officer. Is it okay to mention the names of the military bases, the wing, and the squadron without stirring any issues with the military?

    • Steven M. Moore

      Hi Rina,
      I have a comment here that might help. When I wrote Angels Need Not Apply, I describe a terrorist/Mexican cartel/American militia collaborative invasion of Gitmo (it isn’t that farfetched, by the way). I used Google to develop the basic setting, inventing details that are probably considered classified. If you can get the intel via Google, that’s safe, right Sara? Dealing with the Pentagon is always tricky, though. Zero Dark Thirty and various magazine articles showed the night vision goggles used by SEAL team 6, but the Pentagon is still going after the SEAL who described them in his book. Left hand not knowing what the right is doing?
      Yours in reading and writing,
      Steve

    • Sara Hawkins

      While providing actual names may give some authenticity or point of reference to readers, is it germane to the story to provide such detail? Much of the issue will come from the specific information you provide and how it presents the military. It’s the concept of false light that may be more of a concern, or if your book were to mention issues of military security then those needs may trump your first amendment rights.

      As Steven M. Moore mentions below, the issue with Zero Dark Thirty is still playing out but does tend more toward the idea of military security rather than false light, libel, or other more common legal issues writes face.

  15. John

    Hi Sara,

    I’m writing the outline for a fictional mystery that takes place in San Francisco and other cities in the bay area. How do I avoid legal issues with using the actual names of these towns, and their infrastructure i.e. the police department, cable cars, etc.

    If I present them in a positive light, am I’m ok or should I use fictional names for these cities?

    Thanks for your help …John.

  16. K.L. Evans

    Hi Sara,

    My question is a follow up to Steven M. Moore’s about citing living people in fiction. I’ve written a novel that was originally a fictional story in which the male lead is a well-known person. I have since rewritten many aspects of it, changing the names and all the personal identifiers, keeping only the man’s profession the same. It was very well-received by a number of focus groups, before and after I made the changes, and I am interested in self-publishing it, but I’m concerned that there may still be a legal issue, since some people initially knew it as a fictional story about this well-known individual.

    Can you offer any guidance?

    Thank you.

    KLE

    • Steven M. Moore

      Hiya KLE,
      Wow! Almost a year since I asked that question. How time flies!
      Sara’s answer was spot on and agreed with other answers I received around the internet. My book, Aristocrats and Assassins, has since been released. All the aristocrats, whom I identify via their country’s name only, are shown in a positive light. In fact, one contributes immensely to taking down the terrorist. They would be hard put to argue that I was defaming them, so I’m safe, methinks.
      Your situation might be different. I assume by “citing” you mean that the famous person is a character in your book. Without knowing specifics, I’d say you’re OK if there’s nothing that can be interpreted as slander or defamation. Sara, what do you think?
      r/Steve

    • Sara F. Hawkins

      KLE,

      There are a number of excellent resources for authors that specifically address Libel and Invasion of Privacy. There are some concrete paradigms that provide direction for authors who are basing characters on real people, regardless of whether it’s fiction or non-fiction. Because you’ve had per-reads using the actual person there may be some special considerations, but use the rules set by both the laws and the guidance given by courts to restructure your work. If you have concern, definitely consult a lawyer or publishing specialist.

      • Katherine Evans

        Thanks, Steve and Sara.

        I found an article about using the name or likeness of someone. Thought I’d share the following passage, as I found it to be helpful:

        “Protection for Creative Works

        The First Amendment and the laws of many states also protect your use of someone’s name or likeness in creative works and other forms of entertainment. Included in this category are things like novels that include mention of real-life figures, historical fiction, movies based loosely on real-life events, “docudramas,” works of art that incorporate an individual’s photo or image, and acts of parody directed at an individual. Some state statutes explicitly exempt these kinds of work from liability for misappropriation or violation of the right of publicity. See, e.g., 42 Pa. Cons. Stat. § 8316(e)(2) (link is to entire code; you need to click through to title 42, part VII, chapter 83, subchapter A, and then choose the specific provision); Wash Rev. Code § 63.60.070(1). In other states, the courts look at the creative or artistic work in question and decide on a case-by-case basis whether the First Amendment values at stake trump the plaintiff’s rights of privacy and publicity. See State Law: Right of Publicity and Misappropriation for details.

        As a general matter, you will not be held liable for using someone’s name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone’s name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person’s identity.”

        The fiction that I’ve written depicts the person I based it upon in a positive light, and the rewrite is vague enough that it would be difficult to pin it on a specific individual, if the reader didn’t already know who it was. I think my best bet might be to remove the story from the forum where I posted it and try to separate myself from it. Maybe put some time between now and when I decide to self-publish it. I would estimate only about 400 people or fewer read the original work, and would not flatter myself to believe the person I depicted, or anyone associated with them, ever got wind of it.

        I sincerely appreciate your input and if you have any further guidance, I’d love to hear it.

        • Steven M. Moore

          Hi Katherine,
          My only comment is that the book’s been out for almost a year and still not a word from the “aristocrats”! I think I’m safe, although some readers thought I was pretty bold to do what I did. Maybe I’ll only get into trouble if the book becomes a bestseller? :-) That sort of happened to Dan Brown (The Da Vinci Code). I don’t know how that turned out, but that was something very different in the legal sense.
          Take care,
          Steve

  17. Chris Goodwin

    I have written a book about environmental issues and had taken some information regarding population numbers from a number of sources to average out into a table and graph. I have designed my own table and graph. Kindle have stated that they believe some of my input may be available on the web and that I have to confirm I have electronic copyright. Am I able to use information gleaned from the web in this way?

    • Sara Hawkins

      Chris,

      Copyright law does not apply to facts, data, or ideas. Just because information is available on the internet doesn’t mean it’s granted US Copyright. Compilations and databases may qualify for copyright protection, but there are very specific rules for which information qualifies.

      But, even if a database or compilation is arranged with sufficient originality to qualify for copyright protection, the facts and data within that database are still in the public domain. Anyone can take those facts and reuse or republish them, as long as that person arranges them in a new way. If the information is only accessible under a contract that conditions access on limiting how the facts and data may or may not be used that contractual relationship will govern.

  18. mandy

    could you explain what a legal read entails please ?
    If the publisher chooses the person, What figures should I be looking at ? as it states 50% to be paid by author.
    This is a first book publication.

  19. Roger

    OK, I’m using a publisher as POD, a work which the publisher will copyright for me. My question is regarding photos/images in my work. My images were not obtained from the internet, rather were photocopied (by me) primarily from old newspapers (like the 1930’s). Do I need permission to add these to my work? Even if I give credit at the end of my work, which is non-fiction?

    • Sara Hawkins

      Roger, as the author you are responsible for securing any rights related to the use of another’s copyrighted material. There are still many works from the 1930s that are covered by copyright because they meet the legal requirements of the laws that existed at that time. Many, however, are in the public domain. It is your responsibility to determine which, if any, may still be subject to copyright so you can secure the proper authority to use them.

      Giving credit is a plagiarism issue. Regardless of the copyright question, if you are not the owner of the image it should be properly credited to avoid the ethical concerns related to plagiarism.

      Hope this helps.

  20. Swapnil

    Sara,

    If an author wants to design the cover page and interior of book, then what are the legal measures to be taken while doing so? I mean regarding softwares, operating system, fonts etc.

    If I give my book to a third party printing press to just print my copies, then don’t you think he’s liable to have all legal licences and author is safe in such case?

    Regards,
    Swapnil.

  21. Steven M. Moore

    Sara,
    Here’s an issue I didn’t see treated in the thread.
    First, some back story: Tom Clancy in Patriot Games featured the royal family (at the time, Prince Charles, Princess Di, and baby William) and especially Charles as part of the fictional story. Irish terrorists were trying to kidnap them. Do you think he asked Charles’ permission? (Obviously, I can’t ask Clancy and I’m certain Charles would ignore my query.)
    So, let’s assume that I want to include some real royal families in a fiction work. Like Clancy, I’d show them in a positive light (you’d think Clancy wanted to propose Charles for the directorship of MI5). Am I protected? Or, do I have to ask each one of them permission? (That, clearly, would delay my book’s release.)
    r/Steve

    • Sara Hawkins

      Steve,

      Defamation, specifically libel, is a key concern for authors who are using real people in their work. In most instances, permission is not required when writing about a real person. When writing about a real person, even if they are not specifically identified by name but can be identified by characteristics or details the author must be very sensitive to how the person is portrayed regardless of whether it is a fictional or non-fiction depiction.

      Any depiction of a real person that may be defamatory will certainly raise legal concerns. An author has to be willing to take the risk of the person bringing a defamation suit if they choose to use a real person or even a composite of real people.

      • Steven M. Moore

        Sara,
        Thanks so much for your reply. My reading between the lines tells me (1) I don’t have to ask permission, and (2) as long as I show them in a positive light, I’m probably safe (and that’s what I do). I figured as much, given the Clancy precedent. Putting them in a fictionally dangerous situation and having them help save the day, as in Patriot Games, shouldn’t be considered defamatory.
        You’d be surprised at the varying opinions I’ve received on this. Yours agrees with my knee-jerk instinct, but we’ve all seen many cases where Lady Justice is truly blind. :-)
        r/Steve

  22. Sam

    Hello Sara,

    I am writing again as I did not hear back from you, maybe you are too busy?

    Just a small question on copyright.

    I am intending to republish 3 books, the writer has passed away and all her property etc has been given to a company. I plan to reproduce the books as copies of the originals. From the originals I have retyped, copied the images and formated the book as near as possible to the originals. Of course some minor changes as its not an exact copy. Talking to the company now for copyright permission. On the copyright page I listed the company as the copyright owners of the original works.

    My question, is the company also the copyright owner of the new republish book or is it myself?

    • Sara Hawkins

      Sam, sorry for the delay but I wasn’t getting the notifications when people leave a comment.

      For someone who has passed away, if there was a copyright it will pass according to their will, trust, intestate succession, or any other type of transfer agreement made prior to death. A copyright owned by an individual is for their natural life plus 70 years.

      Whomever owns the copyright is the only one able to grant permission. If you are given permission, it should be done by written agreement and in that agreement the copyright holder should designate how the copyright notice is to be listed.

      Republishing a copyrighted work does not give rise to a new copyright. A copyright holder has the exclusive right to create derivative works. Given the scenario of republishing a work for which there is already a copyright, a new copyright is not then granted to the subsequent publisher of the work.

      • Muhammad Akhtar

        Hi Sara

        My Question is that If I write or compile a book from different sources (other books, internet, websites etc) and I mention every source in my book in an annex or mention source with every topic, Am I still liable for copyright work? Or Is it enough to show/mention the source of material?

        What I remember that when I was in a university, In some of our books Author mentioned the sources or a list of books under the title of reference books.

        I hope you got my concerns.

        • Sara Hawkins

          Muhammad,

          Mentioning sources is often a plagiarism issue and not copyright. Depending what you take from those sources would be where the copyright issue would arise. Simply citing the source does not prevent copyright infringement.

  23. Sam

    Hello Sara,

    I am writing again as I did not hear back from you, maybe you are too busy?

    Just a small question on copyright.

    I am intending to republish 3 books, the writer has passed away and all her property etc has been given to a company. I plan to reproduce the books as copies of the originals. From the originals I have retyped, copied the images and formated the book as near as possible to the originals. Talking to the company now for copyright permission. On the copyright page I listed the company as the copyright owners.

    My question, is the company also the copyright owner of the new republish book or is it myself?

  24. Sam

    Hello Sara,
    Just a small question on copyright.

    I am intending to republish 3 books, the writer has passed away and all her property etc has been given to a company. I plan to reproduce the books as copies of the originals. From the originals I have retyped, copied the images and formated the book as near as possible to the originals. Talking to the company now for copyright permission. On the copyright page I listed the company as the copyright owners.

    My question, is the company the also the copyright owner of the new republish book or is it myself?

  25. katie

    I’m writing my first book and need to reference the name of a military base. Will that be acceptable? Or do I need permission from the military to print their name?

    • Sara

      Katie,

      Disclosure: for information purposes only. Comment below not intended to be legal advice.

      Any time you use the name of something real you have to consider a multitude of legal issues, such as trademark and defamation. The US government does not normally exercise trademark rights over things such as military base names. However, there may legal issues with regard to the fictional portrayal. If your book is presenting factual information there are often less legal concerns. In addition, if merely used for contextual location or historical reference there are often fewer legal concerns.

      There is always the “it depends” answer because it really does depend on how the name is used. With the US Government not obtaining rights, the path is much more clear. However, there is always concern if there is an invasion of privacy or defamatory context.

  26. Roger

    Hello,

    Not sure if I am sure if my question fits here but here goes.

    I have a book out of copy write over 80 years ago, I wish to republish. I will update it and move images around, remove some text, so minor changes, maybe change the title and can I put my name on the book as mine? I suppose my question is if you republish a book out of copy write, can I change the title? Also not include the original authors name?

    • Sara Hawkins

      Roger, unfortunately there isn’t one clear answer because there are number of different hurdles that need to be cleared before saying “yes” to republishing a work that appears to be in the public domain. The underlying Public Domain work will continue to be in the public domain, and depending on what is added the additions may be sufficient to obtain their own copyright. However, age alone is not a clear indicator of a work being in the public domain. If there is not absolute certainty, a clearance expert should be employed to ensure the work is in the public domain.

      With regard to not including the original author’s name, legally there is precedent that it does not need to be included. (Dastar Corp. v. 20th Century Fox Film Corp., 123 S.Ct. 2041 (2003).) However, copyright laws and plagiarism ethics may be in conflict.

      The title of a work is not usually subject to copyright. But again, there could be exceptions.

      • Roger

        Hello Sara,

        Just a small question about copyright in republishing a book.

        I have permission from the book copyright owner to republish a book. The cover and inside pages and images will nearly be same as the original. Of course some small changes to the format.

        On the copyright page I will state permission granted from the owners to republish. I am a liitle confused who is the copyright owner of this new book? Myself as the publisher or is it the original copyright owner? Hope you can clear this up for me.
        Thanks

  27. Michelle Hughes

    Sara,

    I’m sure you get bombarded with legal questions all the time, but I hope you have time to answer this one. Outside of a copyright, what can an author do to protect themselves from faulty claims of infringement. I’m particularly concerned with releasing new manuscripts after a previous incident. Are there certain documents outside of copyright that can help prove you own the works so even if a faulty claim is raised you can defend yourself without legal help?

    Truly,
    Michelle

    • Sara Hawkins

      Michelle,

      This is an excellent question. Unfortunately, there is nothing to stop anyone from making a faulty claim of copyright infringement. Obviously, when filing a lawsuit there is a sworn statement that the information is correct and truthful but one person’s idea of correct and truthful may not, in fact, be correct or true.

      In cases where there is no basis, the case will likely be dismissed. But that does not account for the time and money to defend yourself.

      I wish there was a more concrete answer, but, in fact, there isn’t.

      ~ Sara

  28. Michelle Hughes

    Sara,

    I’m sure you get bombarded with legal questions all the time, but I hope you have time to answer this one. Outside of a copyright, what can an author do to protect themselves from faulty claims of infringement. I’m particularly concerned with releasing new manuscripts after a previous incident. Are there are certain documents outside of copyright that can help prove you own the works so even if a faulty claim is raised you can defend yourself without legal help?

    Truly,
    Michelle

  29. Michelle Hughes

    What is rarely mentioned is the cost to fight a copyright infringement claim. Most self-published authors don’t have $10,000 to spend to get a court resolution. So yes a copyright is great but if it ever comes down to a legal dispute you have to make the decision on whether or not your self-published book is work that type of investment that you may never recoup. Just the sad fact of the world we live in, a crook and conman can get away with piracy and stealing your work because the justice system is not cheap.

    • Sara Hawkins

      Michelle, you’re absolutely right. The cost to pursue legal action is one of the reasons why so many authors end up taking their case to the court of public opinion. It’s a very unfortunate aspect of our legal system, and many people prey on our inability fight.

      In those instances where the infringement is online, authors do often use the DMCA to at least get their work down.

      Thanks for bringing this up.

      ~ Sara

  30. Ian

    Wow, didn’t know that about Google! I use it as a ‘verb’ all the time. I thought I was ‘promoting’ or suggesting that readers use Google for their search but re-reading some of the passages, it could easily be misconstrued as a generalism using Google to mean ‘search’.

    Interesting! But I don’t suppose Google will come knocking on my little door to complain :-)

  31. John Stamos

    I don’t give a damn if someone tries to steal my work they’re going to have to answer to me and it’s not going to be pleasant. I don’t give a damn I will put the fear of GOD in them.

  32. Jenn Mattern

    Great intro to IP law for authors Sara. Like several other commenters, using brand names is one of my bigger concerns. I try to stay generic. That’s because I don’t consider most uses to be worth the legal risk. And as a reader I’ve found fake brand names to be distracting, especially when it’s obvious the author is hinting at a real brand.

    • Sara Hawkins

      Jenn, thank you for your comment. I, too, have found the use of fake brands to be distracting but I understand the reason why they had to do it. It’s a delicate tug-of-war between trademark holders and authors trying to create a sense of authenticity and realism. ~ Sara

  33. Maggie Dana

    Best to avoid lyrics, even just a few words. You can, however, use song titles because they (like book and film titles) cannot be copyrighted. I know of several authors who’ve gotten into trouble by using song lyrics in their books without permission, and permission from most popular singers/bands is prohibitively expensive.

  34. Katy

    Thanks Joel and Sara. Very timely and helpful.

    • Sara Hawkins

      Truly my pleasure, Katy. Glad it had information you could use. ~ Sara

  35. V Demetros

    Great, and timely, information. I’m always worried about using brand names. I usually try to work around them but sometimes it’s necessary. Thanks, Sara.

    • Sara Hawkins

      Thank you, V, for reading and commenting. Using a brand name can often do in a few words would would likely take dozens and then still not do the scenario justice. Imagine the title if Weisberger couldn’t use Prada – The Devil Wears Very Fancy Shoes just doesn’t have the same ring to it. Fortunately, owning the trademark for a word or phrase doesn’t mean it’s taken out of the language for others to use. ~ Sara

  36. Christi @ Love From The Oven

    Great post Sara. The issue of brands and trademarks is certainly something that I wonder about going forward on my project. While I’d prefer to be generic, the nature of what I’m writing makes it very hard to not use brand names.

    • Sara Hawkins

      Thank you for reading and commenting, Christi. Trademark laws are a bit more complex and there are some brands that are a bit, shall we say, overzealous in policing their marks. There is a “fair use” aspect of trademark law but it’s even more nebulous than that of copyright law, making it harder to navigate. But still, there are possibilities. ~ Sara

  37. chris

    Regarding Fair Use, here is a quote from the US Copyright Office and a link to the full page text…

    The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

    https://www.copyright.gov/fls/fl102.html

      • chris

        Useful trivia….the TV series WKRP in Cincinnati, a tv show about a rock radio station, originally used all popular music (Elton John, Dan Fogelberg, Hendrix, etc.) in scenes in which the music was part of the atmosphere. For example, when Johnny Fever would put the needle on the record and you’d hear a song by The Eagles. In later years, due to the huge cost of re-licensing the music, the re-runs had generic music in place of the original.

      • Sara Hawkins

        Joel, thank you for adding David’s article. Just another reason why your site it so valuable to authors. ~ Sara

    • Jennifer

      I am self-publishing a series of photography books that are intended for the whole family: educational for children (pictures of wildlife with corresponding proper names) as well as an adult coffee table book.

      There are no identifying images in one book. Do I need permission to include the name of the organization I wish to thank in the acknowledgement section of my book?

      However, in 1 of the 100 pictures in my second book, the name “Seattle Aqu” and its building is visible in the background. The picture is of one of their animals. Do I need permission to use this picture?

      Last question, if a website has .org in their domain name, does that assume that it is a non-profit organization and if so, is the organization exempt from copyright infringement?

  38. Patrick Jones

    Great article, Joel. Thank you for the information from Sara Hawkins.

    • Sara Hawkins

      You’re welcome, Patrick.

  39. carol brill

    Thank you for Another timely post for me. In my current WIP, there’s a scene where the Beatles, Eight Days a Week comes into play. I’ve wondered just how much of the lyric I can safely include, and whether it would be better to just reference the title, assuming most readers will know the song and understand the relevance…um!

    • Sara Hawkins

      Carol, glad to know the article was timely for you. Sony/ATV (a joint venture between Sony and the late Michael Jackson) own most of the rights to music from the Beetles. They do license and from their site you can submit requests to: [email protected]

      ~ Sara

      • carol brill

        Thank you Sara, that’s above and beyond :) I appreciate your help. carol

  40. Athena Chan

    Thanks for the article.
    Quick question:
    If I uses a short poem by e e cummings, where/who would I contact to receive permission to use the poem?
    Thanks in advance

  41. Ernie Zelinski

    “I can’t do no literary work for the rest of this year because I’m meditating another lawsuit and looking around for a defendant.”
    — Mark Twain

    • Sara Hawkins

      Ernie, I’m always amazed at how pertinent Mark Twain’s musings are all these years later.

      Thanks for reading,
      Sara

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