Monday, August 12, 2013

Legal Aspects of Publishing

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
                + 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 (ups_logo.jpg).
                + 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
                                                - 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.

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
                      , 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
                + Stock photography can be purchased for commercial use at 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.
                + 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
                                - 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
                                       ,, 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 (, which will send you an email whenever
                                the specified terms appear on a new website or search.  Others include Yahoo
                                (, and
                +Pay a company to monitor your online presence.  Here's an article on that:

o Websites recommended also include: DemonJack and