Andy: Helen, welcome to "Ask the Agent". Let's start out by you telling us what you see as the biggest legal risks for writers?
Helen: Many writers assume their biggest risks are defamation and privacy claims, but I disagree.
Every year, hundreds of thousands of books are published, and only a few hundred defamation or privacy cases hit the courts. But tens of thousands of writers have signed on to unfavorable contracts they come to regret.
I have seen contracts where the author grants a self-publishing company or small publisher an exclusive license to exploit a manuscript in print, digital, audio and any other format, in any language for the life of the copyright. No reversion, no termination provision, little or no advance!
Yet, many writers don't even read their contracts. One told me a contract looks like 5000 words run through a blender!
I am something of fanatic about this. I believe any writer who can master plot, character, and voice is capable of understanding key provisions of a contract, particularly the grant of rights clause. All they need is the right information. In the Appendix of Self-Publisher's Legal Handbook, I include a line-by-line explanation of key contract terms.
Andy: But many writers are afraid to show their manuscripts to agents, editors and film producers because they are sure their work will be stolen. Isn't that a big risk?
Helen: In reality, industry professionals are not likely to steal someone's work. Being accused of stealing work would damage their reputations, and maintaining a good reputation is worth more than an untested manuscript.
Protecting ideas is a different matter. The basic idea of a work is not protected by copyright. In some industries, ideas are protected by Non-Disclosure Agreements, but in the publishing industry these agreements are rare. From what I have heard, anyone who asks for an NDA is seen as a newbie. Andy, is that your experience?
Andy: I agree with you there, Helen. Sometimes I get clients who want me to represent them, but don't want to tell the publisher what the book is about. I always tell them that we can't play "no peaky" when we are asking them to pay an advance. How else can writers protect their copyrights?
Helen: Writers should understand that they own the copyright in their work as soon as they put it down on paper or a hard drive. It's automatic, whether or not the work is published or the copyright is registered.
But it makes sense for U.S. writers to register their copyright with the U.S. Copyright Office. Registration establishes a record of the work and is required before an infringement suit is filed. Registration within three months following publication increases the damages recoverable in an infringement action. Online registration is $35 and easy. No lawyers required.
Andy: I should point out that a lot of the book contracts from commercial publishers obligate the publisher to register the work with the Copyright Office. But some publishers require the author to do this. Let's go to back the problem of defamation and privacy claims. How can writers use real people in their work without ending up in court?
Helen: Writers use real people in their writing all the time, either as models for fictitious characters or by name in nonfiction. If they couldn't, I suspect 95% of books would disappear.
But there are legal risks in using real people; defamation, unauthorized disclosure of private facts, and misappropriation of the right of publicity. Here are a few measures writers can take to minimize the risks.
For starters, writers should not print, tweet, or post anything they would not say in a room full of lawyers, at least without consulting with a lawyer.
Fiction writers should mask distinguishing characteristics and avoid retelling life stories too closely. The more villainous the character, the more the writer should mask. They should also use the standard disclaimer in their novels: "This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental."
Non-fiction writing involves more risk. Writers should take the time to educate themselves about the elements of defamation and disclosure of private facts. I summarize these claims on my .
For instance, writers should not say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. They should stick to verifiable facts, and let readers come to their own conclusions. In other words, show, don't tell.
Andy: Let's look at a real situation. I represented an author, a former paparazza, who took a photo of a famous movie star smoking hash by her front door. The picture was all over the tabloids. Would the author have legal exposure if the picture were in the book?
Helen: Unlikely.
Writers may be liable for disclosing private facts about an identifiable person if the facts are "offensive to ordinary sensibilities" and "not of overriding public interest." What is offensive and what is public interest? Ultimately, a judge or jury decides, but generally the information must be very private and damaging.
As a preliminary any conduct in public is not protected, particularly today when everyone carries a camera. Public figures have almost no reasonable expectation of privacy. The starlet in your client's image should not have been surprised that cameras are pointing her way.
Information in publicly available court documents and news reports are also not private.
However, writers should be careful about the misappropriation of the right of publicity; namely, using someone's name or image for advertising or promotional purposes. Writers should never use anyone's name or image on a book cover, advertisement, or in any way that implies an endorsement without express permission. Using someone's name or image within a book as part of the editorial or creative expression is different; writers have more leeway.
Only living people (and in some states companies) can make defamation and privacy claims, but in many states the right of publicity survives death. In California, for 70 years. In Indiana, 100 years.
When in doubt, writers should engage an attorney for one-on-one advice.
Andy: Writers love to use song lyrics as part of setting a scene. Is it safe for a writer to use only a line or two of lyrics buried deep in the body of the book?
Lyrics are intellectual property, like text and images. If a writer uses someone's property without permission, whether it's a car, a bicycle, or the words to a popular tune, he is violating their property rights.
Using lyrics is particularly risky, not because they are special in the eyes of the law, but because they are owned by music companies that aggressively protect their rights. A writer could get a "cease and desist" letter from some big law firm. Translation-shred every copy of the book, even though the infringing words are 25 out of 95,000. Worse, a writer could be liable for monetary damages.
There is no need for writers to take these risks. Asking for permission is not difficult or expensive in most cases.
On my website, writers can download a PDF with instructions on how to identify who owns a song and how to ask for permission, How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer. I have a similar PDF for using images.
Andy: Helen, I'm a little surprised by this. I represent a biography of a recently deceased songwriter and performer. The title of the book is the title of one of songwriter's most famous songs. And the author wants to use an occasional line or two of lyrics as chapter headings. Isn't there a Fair Use Doctrine that allows you to use a minimum amount of lyrics or other copyrighted material without a permission? What about the title of the song being the title of the book?
Helen: I would encourage the writer to seek permission. If that's not possible, then this is a perfect example of when someone should consult with an attorney on how to minimize risks. Sorry to punt here, but there is no one answer fits all.
While we are talking about titles, what if another writer releases a book using the same title as mine? Are there any legal claims?
Most writers are surprised to hear that titles are not protected by U.S. copyright law.
It's ironic, really. Anyone who has written a novel will tell you how difficult it is to come up with a title that is resonant and eye-catching. Yet titles are not protected under copyright law, because they are considered too short to contain sufficient "original expression."
A very famous title or the title of a series may become a trademark however. If a writer's title becomes as famous as The Da Vinci Code, then it's time for to consult with an attorney about trademark protection. This a problem of success. I hope all our readers have this problem.
Writer and lawyer Helen Sedwick uses 30 years of legal experience to show writers how to stay out of court and at their desks. ForeWord Review gave her Self-Publisher's Legal Handbook Five Stars, calling it "one of the most valuable resources a self-publisher can own...well-written and authoritative yet unhampered by legalese." Her blog coaches writers on everything from protecting copyrights to hiring freelancers to spotting scams. For more information about Helen and her work, check out her website at http://helensedwick.com
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.
Tags: andy ross, book contract, defamation, helen sedwick, self publisher's legal guide, SELF-PUBLISHING