Legal Issues (An Update, Sort Of*)

When I’m working on an edit, one of the things I’m most conscious of is the possibility that the publisher (who hires me and cuts my check) could end up in a lawsuit or—and this is almost worse—have its name, its book, its author bandied about on the interwebs by interest groups who take issue with the content. (Even one person with a Twitter account can create a lot of havoc.)

So I’m cautious with sourcing quotes (“No, You May Not Use Brainyquote.com as Your Source”), getting permission to quote (“They Say It’s Easier to Ask for Forgiveness Than Permission”), and citing your sources (“Let’s Talk About Notes”)—but I haven’t written about many of the other sorts of things that might arise when we’re talking about intellectual property.

And I don’t want to. I’m not qualified to do so. (Oh, sure, I’m comfortable saying you don’t need to include ™ or ® when you use a brand name in your novel, but that’s about as far as I’m willing to go.) Yet I get asked questions about legal issues a lot. Thus this post with lots of links I’ve collected about legal topics that may be of concern to you.

✱ Your Copyright

Jane Friedman’s column is always going to be my go-to source for information, and she has several posts in her archives written by copyright attorney Brad Frazer. In “Copyright Is Not a Verb,” Frazer says,

Important caveats:
1. Ideas are not protectable under copyright law.
2. Titles are not protectable in copyright.
3. The presence or absence of the © on the work has no relevance to the issue of whether the author has registered her copyright.
4. You may not actually own the copyright in that work you think you just authored (e.g., work for hire and joint works).

There’s lots more; this article is pretty much all you need to know to get started. Literary agent Chip MacGregor has a practical suggestion in his article “Do I need to copyright my work?” so have a look at that too.

✱ The Copyright of Others (Fair Use Doctrine)

Frazer has another important article: “Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material.” Here’s something a lot of people don’t grasp:

Attribution is not permission. Merely giving attribution does not mean you may proceed without possible copyright infringement liability. If you cannot obtain permission and cannot definitively conclude your use is a fair use, I recommend that you do not use the third-party content.

Again, a detailed article with lots of information. If you’d like more, Joel Friedlander over at the Book Designer is another excellent source of information. His article is called “What Every Writer Ought to Know about Fair Use and Copyright.” So you’re set now.

✱ Trademarks

The one thing I know about trademarks is you should never, ever use the ® if you don’t have those registration papers in your hot little hand. Uncle Sam doesn’t like that. But as an author, you’re not likely to need a trademark. In this third article from trademark attorney Brad Frazer, “Trademark Is Not a Verb,” you’ll see why.

✱ Libel

Because memoir is hot right now, libel is the subject that can get even the most innocent author in trouble. Why? Because most publishing contracts state that the author is responsible for any legal action that arises. It’s a nasty business, and you don’t want to get any of it on you. A friend of mine found this out recently when her memoir manuscript was withdrawn by the publisher practically on its way to the printer.

What is libel? Literary agent Steve Laube explains in his excellent article “L Is for Libel.” And Wendy Lawton, also a literary agent, breaks it down even further for anyone who’s considering writing a “My Story” book—memoir or narrative nonfiction. In her article “A Complicated Genre—Telling Your Own Story,” Lawton says,

Several [people] assumed they could write about someone if they changed just a few details about that person. Not necessarily so. If we are writing about a private person—not a celebrity or a politician or a public official—that person does not even have to prove malice to win a libel suit in court. We live in a litigious society. If you have shown that person in a bad light and someone might be able to recognize him or her, they can sue you. If you are talking about someone connected to you—ex-spouse, relative, teacher—it won’t be difficult for those who know you to figure out who you are referring to. You would have to prove the implications you made are true in a court of law and even if you win, costly lawsuits can break the bank. No publisher will be willing to take those risks along with you.

That last line is crucial: No publisher will be willing to take those risks along with you. You’d probably be wise to seek advice before you write that memoir.

✱ Last Thoughts

You can see, now, these issues are not to be taken lightly. In fact, I’ll issue my disclaimer here: This column does not create a client-attorney relationship and is not intended as legal advice; nor should it be taken as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require.

But I have two more articles you might want to review just to give yourself an overview. In “Five Legal Issues All Writers Need to Be Aware Of,” much of what you’ve learned here is reiterated, but it has one point about freelancing not mentioned elsewhere:

If you present yourself as a professional in the field of editing or writing, you also present yourself to the liabilities that professionals face.

Think about that.

If you’re thinking about self-publishing, have a look at “Legal Issues in Self-Publishing: What Authors Need to Know.” As the author points out, “If you self-publish, you are the publisher and thus assume all the legal responsibilities.” You should think about that too.

* Because it’s almost summer and because I am still positively slammed with work (not a bad thing) and because slammed with work means less time to write the kind of thoughtful blog posts I want to write, I’m writing a series of updates to reconnect you with my archives. Let me know what you think.

 

Tweet: Issues that arise when we’re talking about intellectual property: copyrights, libel, & more.
Tweet: Permissions, citations, copyrights, libel, registered trademarks, fair use … Questions?
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Disclosure of Material Connection: I have not received any compensation for writing this post. I have no material connection to the brands, products, or services that I have mentioned. I am disclosing this in accordance with the Federal Trade Commission’s 16 CFR, Part 255: “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”

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3 Comments

  1. Great post. As I discuss in my post today (That Crazy Little Thing: Is That My Husband In Your Book?), it’s really not as easy as Lawton suggests to be a plaintiff in a libel-in-fiction claim. There’s nothing worse for keeping offensive material private than to make it public through court documents, and these cases are very hard for plaintiffs to win. That said, authors and publishers do need to be careful. Fiction should really be fiction. Why risk a lawsuit when you don’t have to?

    • Jamie says:

      Thanks! I’m not lawyer but people ask me all the time about legal issues, and I wanted to have somewhere to send them. :) I think Wendy was talking about memoir, but you’re absolutely right: fiction really should be FICTION. :)

  2. There is definately a lot to learn about this issue.
    I love all the points you have made.

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