Legal Aspects of
Publishing
o Copyright
+
Unless the work is in "public domain" you should use caution when
quoting work, including
song
lyrics, poems, etc. To obtain permission
to use musical works, you will need to
contact
ASCAP or BMI to find out who owns the rights to the work, and you will need to
pay
royalties for any quote beyond a single line.
+ Book
and song rights may be owned by more than just the author - the publishing
company
often
owns most of the rights to a work. Send
requests with an authorization form and
include
a SASE to facilitate the process for the person or company you are contacting.
+Rights
are protected for 95 years from publication date or 120 years from production
date for
anonymous
work, and for 70 years after the death of the last living contributor. So, if
you
and Joan Rivers co-write a book, you can be sure the book will be protected for
all
eternity.
+ You
cannot copyright an idea. Do not become
infuriated if someone writes "fan fiction" based
on
your work - the person is not stealing from you. If you created the world of
"Bumarth"
keep in mind you do not own that idea.
Other people can write in that world
and
be protected. Many people have written
in the Star Wars universe, for example,
and
for contemporary fiction, set in "planet Earth in the year 2013"
+ What
is protected are your words. similar
words can be protected also, but only if to a
common
person the new phrase draws images of the original too closely (e.g.,
"Duke, I
am
your father.")
+ You
can copyright the content and cover of your work
+ Avoid
the "Poor Man's Copyright" method in which you mail yourself a copy
of the work and
keep
the sealed, stamped envelope in a safe until you have to present it in
court. This
does
not hold up well in court, and lawyers are notorious for raising doubt as to
the
validity
of any evidence presented, and a stamped envelope is an easy target.
+
Copyrighting can take 30-90 days to process for electronic submissions.
+
Copyrighting a work costs $30 for online submissions, $60 for traditional
(snail mail). You will
need
to submit a summary of your work, along with a complete copy.
o Trademark
+ There
are two types of marks that can be protected by the government: A word or
phrase
("Coca-Cola",
"UPS", "What can Brown do for you?"),
or
a symbol/picture (
).
).
+ A
logo can be protected one of two ways: specific to the color, or black and
white (which
protects
all variations in color).
+
A "™" means the person or
company is claiming exclusive use of the phrase or logo, but is not
registered
with the USPTO - so they may not be protected.
However, infringing on this
claim
can still leave you open to a lawsuit.
+ A
"®" means the product is protected by the USPTO and you cannot
produce anything similar
with
the same name or similar logo. The basis
for infringement is in the perception of
the
consumer, so it is a subjective assessment in a court of law.
+ A
"SM" symbol is like a trademark, but it protects a service
rather than a product (Tanning
session,
delivery service).
+ You
can trademark a publishing company name or logo, or a subsidiary name or logo
+
Trademarks can take 7 to 18 months for review for electronic submissions, and
last 7 years.
+Trademarks
cost $375 for traditional filing, $325 for electronic filing. Keep in mind there are
other
fees that you MUST pay in addition to the filing fee, and those vary depending
on
the
type and the planned use. Expect to pay
closer to $900 to $1,000 per trademark.
You
should also do an extensive search to confirm that you can lay claim to the
trademark
before you file, or you will lose your money and your time. For more
information
on fees for trademarks, go to
o Using real names
in your work - Libel (Note that laws vary by state - this is a generalization)
+ The
law protects two aspects of a person's rights - the "Double
"D"s: disclosure and
defamation.
-
Disclosure is the right of a person's embarrassing secrets to remain
private. Even if true, these details should not be in
your book unless
they
are crucial to your story. For example,
"Al Roker pooped his
pants". He has admitted this, but it does not mean
you should use it in
your
book or story.
-
Defamation is the declaration (as fact)
of negative information about a person
or
business. If you include something
negative about a real person or
company,
be sure you have PLENTY of supporting evidence in case you
need
to defend yourself in a lawsuit.
+ You
can protect yourself by having your subjects sign a waiver stating that they
allow
the
use of their name and description in your work for "liberal
use". This is not
easy
to obtain from people, but you can try.
+You
can also place a legal disclaimer on the copyright page to state the work is
fictional, or
fictional
"based on true events".
Regardless, you should avoid using real names.
+ The
law protects opinions, so you can declare your statements as opinions rather
than fact.
However, you must truly believe the statement and be able to swear under oath that it is an opinion.
Here are two examples of opinions: "That Joseph - I don't like him. I believe he goes home and drops on all fours every night and licks his dog's bowl clean." This will be deemed a statement with malicious intent, because there is no basis for your opinion.
However, you must truly believe the statement and be able to swear under oath that it is an opinion.
Here are two examples of opinions: "That Joseph - I don't like him. I believe he goes home and drops on all fours every night and licks his dog's bowl clean." This will be deemed a statement with malicious intent, because there is no basis for your opinion.
Compare that to the following: "That Joseph - his breath always smells like Alpo. I truly believe he gets home and eats out of his dog's bowl." That's a protected opinion.
+ If a
person is deceased, it is called "calumny" - and it is protected by
law. Usually a dead
person
cannot be defamed because they have no character to defend. However, if the
accusation
reflects poorly on somebody else, you can be sued. For example, "Robert
Ferguson,
deceased, in his final years, hosted wild parties filled with drugs, alcohol,
and
kinky
sexual orgies." This would be fine,
unless Robert Ferguson lived with his wife and
kids
in his final years. This implicates the wife
and the kids, and they can each sue you
for
defamation.
o Using a pen name
+ Pen
names are used to write in different genres than the ones for which you're
known (e.g.,
Stephen
King with "The Green Mile" or "Shawshank Redemption").
+ Publishers
ask you to use different names in a few of your works
+ You
write too many books. They say in
writing your only competition is yourself, and that
couldn't
be more true than for a prolific writer.
If you release 5 books in a month,
readers
will most likely only choose one to buy, then turn to a different author. Unless
it's
the Harry Potter Series.
+ To
protect your family or yourself from rabid fans
+ To
hide gender
+Using
a pen name can affect inheritances, royalty checks, and copyright. It cannot protect you
if
you use it to plagiarize someone else's work, defame someone, or break the law.
o Legal disclaimers
and what they protect
+ A
legal disclaimer will protect you legally, but it will not stop someone from
suing you. Also, if
you
use real names, products, or places and defame them using accurate descriptions
to
the
real-life version, you will not be protected.
+
Always use a legal disclaimer. If your
book becomes a bestseller, there will be thousands of
people
who will try to get a free ride and take your hard-earned money the easy
way.
Don't
make it easier for them.
o The title of your
book
+ The
title of your book cannot be copyrighted unless it becomes an implied
copyright. That is,
you
can't title your book, "50 Shades of Gray" or "The Perks of
Being a Wallfower".
Some
variations can be used, but it must be significantly different, such as
"80 Shades of
Gray"
or "The Perks of Being a Floorflower", but not "50 Shades of
Grey" and "The Perks
of
Being Wallflowers".
o Characters
+
Characters cannot be copyrighted, unless you copyright them in design (like in
graphic novels
and
comic books, or children's picture books).
Don't waste your time with a Sysyphean
task
suing someone who "stole" your character.
+
Character names cannot be copyrighted, but they can be trademarked if they
become a brand,
like
"Yoda", "Darth Vader", Harry Potter, etc. These trademarks only protect the name
when
used in reference to that character specifically. So, if you create a dog character
named
"Harry Potter" the trademark does not apply.
o Lawyers and liars
+
Lawyers are expensive, but sometimes necessary to protect you in your
career.
+ Have
a lawyer review every agreement, contract, or legal document before you sign it
+ A
signed napkin can serve as a contract, so don't sign anything if you don't
agree
+ Do
not let your ego blind you - the recent boom in independent authors has opened
a
floodgate
of scams, including fake publishing companies, agents, and more. Before you
agree
to any terms or submit work to a website (an implied agreement in the eyes of
the
law), have a lawyer review the terms.
+ If it
was too easy to secure a publishing contract, it's probably fake. Do your research - look on
www.ripoffreport.com,
http://www.sfwa.org/other-resources/for-authors/writerbeware/,
and similar sites. Ask
other
authors.
+ Join
a reputable writer's guild or organization - they provide agent and publishing
company
listings
and also publish reports on scams.
+ A
typical entertainment lawyer charges between $70 and $150 per hour for
consultations, and
$300-$5000
for document review.
o Artwork /
Photography
+Try to
get the artist or photographer to produce work for you as "work for
hire",
which
means the rights to the work are all transferred to you. If you fail to do this,
you
may have problems down the line when using the work on business cards, flyers,
advertisements,
etc.
+ If
you do your own photography, be aware that the photographer retains all rights
to any
photographs,
but it is recommended that you get signed disclaimers from any
subjects
(people) who appear in the photograph to avoid problems in the future.
+ If
your photograph contains any trademarked product, try and get permission to use
the
product
in your photograph or edit the trademarked portion with photo editing
software.
+ Stock
photography can be purchased for commercial use at www.istockphoto.com or
similar
sites,
or you can hire someone to do art or photography for you.
+ Work
for hire (photo and art) can cost you from $100 to $750.
o Royalties
+ The
royalties you earn will vary depending on your contract, and if you
self-publish you will
need
to check the terms offered by the website or publishing house.
+
Agents typically charge between 10 and 20% royalties, with 15% being the most
common.
Have
a lawyer review your contract before you sign it.
o Works for hire
+
Writing for a publication (magazine, journal, newspaper), ghostwriting,
copywriting, some freelance writing, etc.
+ When
you do a "work for hire", you usually give up rights of ownership and
grant them to the publisher or purchaser.
o Plagiarism
+ If you have contracts with various publishers
be careful quoting your other work.
Depending
on your contract, you may actually be
plagiarizing yourself. Ask Neil Young -
he sued
himself
once for copyright infringement; well, not he to himself, but one record
company
sued another for copyright infringement when Young copied lines from one
song
and added them to another.
+
Plagiarism occurs even with paraphrasing if proper credit is not given to the
original author.
o Citation and MLA /
APA Standards
+
Formal citations are usually not necessary for fictional works, but be aware
that in the literary
field
MLA is the standard. Thus, you need to
cite line and page numbers if you quote,
paraphrase,
or use a concept presented by another writer in your non-fiction work.
+
www.sonofcitationmachine.net is a great way to quickly type an ISBN number or
enter the
details
of the work and get the proper way to cite the work.
+ Even personal accounts and interviews need to
be cited.
o "Cease and
desist"
+
Before bringing a civil lawsuit against anyone, keep in mind that civil suits
are ruled by
preponderance
of the evidence. That is, whichever side
presents the most plausible
case
will win, even with reasonable doubt. you
must establish two things: intent and
plausibility.
-
Intent is established by proving that the offender did the stealing on
purpose. This
is
simply established by first sending a "cease and desist" letter,
demanding the
offender
remove the stolen portion form their work.
Your letter should be very
specific
with whatever it is you are claiming - provide complete paragraphs,
descriptions,
etc. Define your claim to rights
(trademark, copyright, service
mark),
the date or year you secured those rights, and a statement that you are
demanding
immediate correction to comply with the law.
-
Plausibility is established by proving that the person had the means and
opportunity to
come
across your work and has seen it in detail.
If your work is available on
Amazon.com, BarnesandNoble.com, or other
popular website, you have that
established
already. Facebook, your blog, and your
personal website do not
count,
unless the person is one of your followers or friends.
o Tools to help
monitor who is stealing from you:
+ Sign
up for Google Alerts (www.google.com/alerts), which will send you an email
whenever
the
specified terms appear on a new website or search. Others include Yahoo
(alerts.yahoo.com),
and bing.com/alerts
+Pay a
company to monitor your online presence. Here's an article on that:
o Websites recommended also include:
DemonJack and Scribeophile.com
