|
Publishing Law Frequently Asked Questions
(FAQs)
Q. When do I need permission to use someone else's
material?
A. The answer is simple: whenever the failure to seek permission will
result in copyright infringement. Since 1976, U.S. copyright is automatic when an original
work -- text, art, photos or music -- is created and fixed in a copy or recorded for the
first time. Neither registration nor copyright notice is required. Reproducing someone's
copyrighted work without their permission -- even if you give them attribution - is
infringement.
It is safest to assume, therefore, that you must get permission from the copyright
owner for all material - text, quotes, lyrics -- unless the material falls into one of the
following two narrow categories:
Public domain material. Public domain material includes items that
cannot be copyrighted (ideas, titles, names, short phrases, and slogans); works whose
copyright expired and/or was not renewed (including all work created before January 1,
1923); most federal government documents (but not those created by private contractors);
and many state government documents and publications.
Fair Use. You also don't need permission if your use of the material
qualifies as "fair use" under Section 107 of the Copyright Act. In general,
however, fair use always is a short excerpt used in connection with genuine criticism,
parody, or teaching. Use of material in a review or scholarly article is fair use; use in
novels is not. (For example, including lyrics from the Rolling Stones in your novel is not
fair use.)
In theory, getting permission should be easy - just find out who owns the copyright
and ask. In practice, however, it can be tough. Publishers are easier to track down than
authors, and they usually can put you in touch with the author. Libraries have many
directories available, such as the Literary Marketplace, to help you find publisher's
names and addresses. The U.S. Copyright Office (loc.gov) also will research copyright
ownership for a fee.
Many copyright owners use licensing agencies to handle permissions such as the
Copyright Clearance Center (http://www.copyright.com). You can locate song lyric ownership
through the American Society of Composers, Authors, and Publishers (ASCAP)
(http://www.ascap.com/index.html ); Broadcast Music Incorporated (BMI)
(http://www.bmi.com/home.asp); The Harry Fox Agency, Inc. (HFA)
(http://www.nmpa.org/hfa.html); and SESAC (http://www.sesac.com).
Unfortunately, getting permission from an agency usually involves paying at least a
nominal fee. In many cases there will be no fee, or a nominal fee charged by the owner,
but in other cases the fee will be prohibitive for your projected use.
What if you can't locate the owner? The simple answer is, you can't use the material.
It's no defense in an infringement claim that you couldn't locate the author. Instead, try
to find some other excerpt that suits your purpose.
Q. Should writers and authors carry special liability
insurance?
A. It depends on the type of book. Fiction is safest, although if you
write true-crime novels, you might be sued for defamation, invasion of privacy, or
violation of the right of publicity. Non-fiction book are more likely to be sued for
copyright infringement.
Although all but the smallest publishers carry a media liability ("errors and
omissions") insurance policy, these policies protect the publisher, not you -- unless
you are specifically added as an "additional insured." Depending on your
negotiating power, some publishers will do this without cost to you, while others will
refuse the request or require you to pay for the an endorsement to their policy.
Of course, if both you and your publisher are sued (the usual situation) then, to the
extent the publisher defends the case, you also will benefit. There may be a conflict of
interest, however, between you and the publisher, or the publisher may settle, leaving you
alone in the lawsuit. Furthermore, most publishing agreements require the author to
indemnify the publisher for all claims and damages resulting from a breach of the author's
warranties. As a result of this indemnification clause, you will have to pay not only your
own attorney's fees, costs, and any judgment, but also those of the publisher.
Ideally, authors should have their own media liability insurance policy.
Unfortunately, the premiums are likely to be $3-4,000 for $1 million protection with a
$5,000 deductible. You can contact any general insurance broker to get quotes for media
liability insurance, or go directly to companies that specialize in publisher's insurance,
such as Argo Insurance (http://www.publiability.com). Because of its cost, most fiction
writers will forgo liability insurance. If, however, your book has a high risk factor
because of its subject matter or characterization, it may be worth investing in it. You'll
sleep better at night.
Many writers also believe - wrongly - that they can limit their liability by
incorporating or forming a limited liability company. Although doing so will protect you
from certain contract claims, in most cases you still will be personally liable for
copyright infringement, defamation, or invasion of privacy.
Q. I fired my agent. What happens if an offer is made on
my book?
A . Start with the general rule: an agent is entitled to receive a
commission on royalties on publishing contracts she negotiated during the term of the
agency agreement -- even after the agency agreement is terminated - but NOT from royalties
resulting from a publishing agreement signed AFTER termination of the agency. This means
that if an editor to whom she sent your book makes an offer after you terminate her, you
may hire another agent to negotiate the contract (or negotiate it yourself), even though
it was through your original agent's effort that the book was placed with that editor.
Now, for the exceptions, in order of likelihood. First, some agency agreements have a
clause requiring you to pay a commission on royalties from publishing agreements made
during a period of time after termination (usually six months), if the purchasing
publisher had originally been solicited by your agent. This provision often is
unenforceable because of poor contract draftsmanship by the agent, but any writer with
such a clause should get a list of all such publishers from the agent upon termination .
Second, some literary agencies include in their agency agreements (or in the
publishing contracts they negotiate) an "interminable agency" clause. Rather
then limit their right to representation during the term of your agreement, such clauses
grant the agent an exclusive, irrevocable right to represent your work for the entire term
of those
works' copyright. The agency will be entitled to a commission on your work even after it
goes out of print from the deal the agent negotiated, and a new publisher republishes it.
After your death, your executor would have to keep track not only of which of your works
are still under contract, but will also have to determine whether an agency has an
interminable right to represent any of your out-of-print works. Your agency may merge,
dissolve, or change names, providing more complications for your executor. If you have
such a clause, you should ask your agent to give you a written release from its terms.
Third, some agents use the phrase "agency coupled with an interest" in their
agency agreements. This is a bit of legalese intended to make the agency relationship
irrevocable (again!). Ordinarily, a principal (you) may terminate an agent "at
will" (or at the end of a contract term), and the agency also terminates
automatically on the death or disability of the principal. This clause, however, grants
the agent the exclusive, irrevocable right to represent your works for the entire term of
those works' copyright. This means that even if you terminate the agency, and the rights
to your book revert back to you from the publisher, you are obligated to pay the agency a
commission forever for all future sales, even if the agency did nothing to cause that
sale. It could even mean you would be paying two agency commissions, which could amount to
thirty percent or more. This also would apply to your heirs. Again, if you have such a
clause in your agreement, you should ask your agent to give you a written release from its
terms.
Bottom line: read - and understand -- your agency agreement.
Q. May I use real people, or characters based on real
people, in my writing?
A. Well, maybe. When you write about real, live people you
expose yourself to legal liability? even if you tell the truth. And simply changing the
names is no solution if the person can be identified by circumstances, appearance, or
setting. Yes, disclaimers may help, but you can't rely on them. Let's take a quick look at
the law of defamation, privacy, and the right of publicity:
Defamation. Defamation is written or spoken injury to the reputation
of a living person or organization. Injury to reputation generally is considered to be
exposure to hatred, contempt, ridicule, or financial loss. Libel is the written act of
defamation; slander is the spoken act. Whether libel or slander, the defamation must be
"published" - communicated to someone other than the subject of the defamation.
Truth IS an absolute defense to defamation: if what you say is true, it cannot be
defamatory. Another defense to defamation is proving that the statement was an opinion,
not an assertion of a fact. In fiction writing, a publisher can be liable for a defamatory
statement only upon a showing of negligence, and public figures have an even higher
standard: they must show that the defamatory statement was published with "actual
malice."
Right of Privacy. Privacy law consists of four distinct
"torts" or legal wrongs: intrusion upon seclusion; appropriation of name or
likeness; public disclosure of private facts; and publicity placing a person in a false
light. Generally only the latter two -- public disclosure of private facts, and
"false light," are relevant for writers.
Public disclosure of private facts occurs when a writer discloses private and
embarrassing facts about a living person that are not of "public concern," such
as details of a person's sexual problems, physical, or mental ailments. For example,
publicizing the fact that your brother-in-law has failed to pay his mortgage for three
months, although true, would be an invasion of his privacy. Matters of public record, even
if private, are not protected by privacy law. If a writer publishes a story disclosing
facts obtained from a police publication or a court opinion, the matter is of public
record and no lawsuit will be successful. Public figures (politicians, movie stars,
professional athletes, etc.) have a somewhat lessened right to privacy because of the
public's legitimate interest in their affairs. For example, a magazine may publish a
profile of a politician without fear of being sued for invasion of privacy.
"False Light" privacy lawsuits occur when a writer
publishes facts about a person that creates a deliberately false and misleading
impression, such as when a newspaper publishes a story about convicted felons and includes
the name or photograph of an innocent person. Once again, there is an different standard
for when the published material is in the public interest or about a public figure. In
such cases, the public figure must prove that the publisher acted with malice or with
reckless disregard for the truth.
Right of Publicity. Most states now have laws that protect living celebrities, and in
some states, recently dead celebrities like Elvis Presley, from the commercial
exploitation of his or her name, likeness, or persona. News stories, biographies, and
fiction, however, are protected by the First Amendment. To the extent you portray a
celebrity in such works without defaming him or his family, you need not seek the
celebrities' permission. You would, however, need permission to exploit purely commercial
"spin-offs" of your work, such as t-shirts or posters.
If you have any doubt about the use of real names in your work, consult an publishing
attorney BEFORE publication.
Q. Should I Register My Copyright?
A. Although registration isn't necessary to obtain copyright
protection, registration is a prerequisite to filing a copyright infringement suit. In
addition, the law confers certain benefits to copyright owners who formally register,
specifically additional money damages and attorney's fees will be available to the
copyright owner in court actions. Book-length works are generally registered at
publication; shorter works are seldom registered unless there is an infringement.
Q. What Can NOT Be Copyrighted?
A. You can't copyright ideas, titles, names, short phrases, and
slogans, no matter how original or unique (some of these can be trademarked, but that's
another story). Also procedures, designs, concepts, charts and tables of common
authorship, etc.
Q. When Can I Register My Copyright?
A. Registration may be made at any time within the life of the
copyright. Unlike the law before 1978, once a work has been registered in unpublished
form, it is not necessary to make another registration when the work becomes published.
Usually this is done only if the work is substantially altered in its published form.
Q. What is self-publishing?
A. In traditional royalty publishing, the publisher screens
books for quality and marketability and then, at its cost, handles editing, manufacturing,
marketing, promotion, sales, warehousing, and fulfillment. The author receives a royalty
on sales. The self-publisher, by contrast, undertakes all of these tasks at his/her own
cost, but keeps all revenue.
Q. What is "vanity" publishing?
A. Vanity publishers, for a fee, will print and bind a book,
register its copyright, provide an ISBN number, and offer a "package" of
services including "promotion" and "marketing." Despite their claims,
these publishers will NOT get your book into bookstores, nor will the books be reviewed.
They do, however, put your book on their web site and in their "catalog." (When
was the last time you shopped for a book in a vanity press catalog?) Although it would
seem that vanity publishing is easier than self-publishing, you will be overcharged and
the tasks will not be done any better (and usually worse!). Keep in mind that vanity
publishers will publish anyone, regardless of the quality, and thus a stigma is attached
to their products. To avoid this stigma, many vanity publishers call themselves
"subsidy" publishers, which they are not. True subsidy publishing is a hybrid of
traditional and self-publishing: the author pays a fee to the publisher but the publisher
also contributes a portion of the cost, and thus is selective in what is published.
Q. What is print-on-demand publishing?
A. New technology has brought more printing options. Print on
demand (POD) books are stored digitally; when a customer or a bookstore orders a copy, the
POD publisher (e.g., iUniverse, Booksurge) uses its technology to create a copy, thus
eliminating the cost of inventory and returns. POD is substantially cheaper ($99-$500)
than paying for a print run, so it's a good alternative if you plan to sell only in small,
sporadic amounts. Unfortunately, POD print and graphics are often fuzzy and less readable
than traditional printing, and the books carry a high retail price. As with vanity
publishers, there is no marketing or promotional effort. If you are interested in POD, be
sure you are aware of precisely what rights you are giving to the POD publisher, and for
how long. Will you be able to terminate the contract and get the full rights returned to
you in the event you sell your book to a traditional publisher?
Q. What is a "Literary Executor?"
A. You may have heard the term "literary executor,"
which is not actually a separate statutory or legal office. (An "executor" is a
person responsible for settling a deceased person's estate.) A "literary"
executor is simply a co-executor whose responsibility is limited to your literary works.
Very often, there is no need to name such a separate individual - your general executor
(usually a spouse or other relative) is also the person you would wish to be in charge of
your literary works pending their distribution to the beneficiary. But if you believe that
managing your literary works requires experience in publishing and literary contracts, you
should consider naming a literary executor.
Q. Can I legally protect my pen name, or the name
of my mystery series? What about my web site?
Many novelists use pen names or pseudonyms and many also have a
"branded" series of mysteries, usually named after the chief character (e.g.,
Noreen Wald's "Kate Kennedy South Florida Senior Sleuth" series.) What such
writers have in common is the need to protect the goodwill and value of their pen name
and/or series. To accomplish this, writers must understand both copyright and trademark
law.
When filling out a copyright registration form (Form TX), the Copyright Office allows
you or your publisher to list either just a pen name or your real name. The difference in
protection is that if you use your real name, protection for the work extends for your
life plus seventy years; if you use a pseudonym, the term of protection is 95 years from
the publication of the work, or 120 years from the creation of the work, whichever period
expires first. If, however, after filing the original application in a pen name, the
author's identity is later revealed in the records, the term reverts to the life of the
author plus 70 years.
Under U.S. copyright law, however, names, slogans, and titles cannot be copyrighted.
This means that copyright will NOT prevent others from using your pen name, or the name of
your mystery series.
Pen names and series names, however, are entitled to protection under state laws
governing unfair competition and under the federal Lanham Act, which prohibits "false
designations of origin, false descriptions, and dilution." These laws give you the
right to bring a civil action against someone appropriating your pseudonym or series
title.
Further, if a pseudonym or series name becomes identified with the person using the
name and/or the books and other products authored under the name, it may be entitled to
protection under trademark law, although generally this is limited to the sale of
ancillary products. If you think your pen name or series name is entitled to trademark
protection, you should consult an intellectual property lawyer; also see my article,
"Do You Need A Trademark?" at www.publishlawyer.com/carousel9.htm, which
explains these concepts in greater detail.
CAUTION: If your pen name also is the name of a living individual, you must either
obtain that person's consent or file a disclaimer stating that the name is not that of any
real person. Pen names also cannot be registered if they are the name of a deceased
President of the United States during the life of the President's widow except with the
consent of the President's widow.
What about your web site name? Internet domain names are treated differently under the
law. Registration of your domain name by the Internet Corporation for Assigned Names and
Numbers (ICANN) is separate from trademark registration. Nevertheless, you may be able to
register your domain name as a trademark, provided the name is being used in connection
with a site that is offering a service or product.
Q. Can you tell me, once and for all, what exactly is
"fair use?"
A. This is the single-most asked question of publishing lawyers. Thanks to the
wonderfully dense language of Congressional bill writing committees, and the courts'
interpretation of their efforts, it is difficult to answer.
Section 107 of the U.S. Copyright Act provides that "the fair use of a
copyrighted work . ... for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright." Note that fair use is confined to these specific
categories. Section 107 nevertheless has been used to justify many instances of uses
outside the categories, and generated numerous court cases. (Adding to the confusion is
the unfortunate belief of many writers that reproducing short excerpts of someone's
copyrighted work -- without permission - automatically qualifies as fair use merely if
attribution is given).
Section 107 further provides four "factors" to determine whether a specific
use is to be considered a "fair use." These factors are:
the purpose and character of the use, including whether such use is of commercial
nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted
work.
Much clearer, right? Of course not. These factors, however, will determine whether
your use of someone else's material will be judged an infringement - or not. For example,
say you wish to use some Rolling Stones lyrics in your novel - perhaps a verse at the
beginning of each chapter. Let's examine the factors:
Is the purpose commercial or nonprofit? Definitely commercial, and the commercial
purpose is not in one of the specified categories (e.g. a review in a newspaper).
The nature of the copyrighted work? Song lyrics, a prime example of a work designed
to be protected.
The amount and substantiality of the portion? Depends on how much of each song you
use. Let's say just one line - a small percentage.
The effect of the use on the potential market? (most important). Probably very
little, since the lyrics have already been published and can be found all over the
Internet (on commercial sites, no less).
The result? The four factors are split. Because the use does not squarely fit within
any of the Section 107 categories, however, typically a court would find that, on the
whole, the four factors weigh against a finding of fair use (and that is why your
publisher will demand that you obtain permission for the lyrics).
The Internet, of course, has brought new confusion to the issue. Abuse of the fair use
exception abounds, but that won't help you in the event you are sued. Until the day when
either Congress or the courts clear up this picture, play it safe - either don't use even
small portions of other persons's work - or obtain permission.
Q. What is cross-collateralization, and is there a cure?
A. Cross-collateralization is an accounting concept (stay with me here) used in
publishing agreements (and also commercial loans). It refers to the right of the publisher
to charge your royalty account for any amount owing to the publisher under any other
agreement. Unfortunately, many writers fail to understand the impact
cross-collateralization can have on their royalty income.
Let's say you have just submitted your third novel, KILLING MADLY, to your publisher.
Your first novel, KILLING SPREE, sold well, but your second, KILLING FRENZY, earned out
only $10,000 of its $12,500 advance.
Under the terms of your current publishing agreement, you are to receive a $15,000
advance for KILLING MADLY, upon acceptance. But when the check comes, it's only for
$12,500 - the publisher has deducted the $2,500 shortfall from KILLING FRENZY.
(Alternatively, the publisher might pay you the full $15,000 advance, but after it is
earned out, it deducts the $2,500 from future royalties.)
Why? Because you have this clause (or one like it) in your publishing agreement:
"all Works covered by this Agreement or any other agreement between Publisher and
Author shall be considered one account and shall be accounted for jointly or
collectively."
What could you have done about it? Ideally, you could have struck out the offending
clause, usually found under headings such as Payments, Royalties, Overpayment, or
Accounting. Some publishers, however, won't delete it, so you'll have consider the
negotiating points and issues:
* If this is your first agreement with the publisher, the clause won't matter until
and unless you sign another agreement with the publisher. You probably can allow the
clause in the first agreement, then push hard to have it deleted in the second contract.
Keep in mind that, unless your first book was somewhat of a success, it's doubtful you'll
get a second contract from that publisher anyway. You also might try to "cap"
the cross-collateralization to a specific dollar amount, e.g., that no more than X amount
can be setoff from any one contract.
* If you are offered a multi-book deal, consider whether keeping the clause will leave
you better or worse off versus signing individual deals. In other words, is the guarantee
of publication from this publisher enough to outweigh the fact that one ordinary book may
soak up the benefits of commercial success in another book? You might be better off
selling to different publishers. You also might try putting time limits on the operation
of the cross-collateralization clause: In other words, let the publisher
cross-collateralize only after an eighteen month or two year period from the release of
each book. This should at least prevent any amount being take out of an advance for the
next book.
* You could try limiting the cross-collateralization to specific editions of a book -
i.e, only hardcovers can be cross-collateralized against other hardcover editions, not
trade paperback.
The key, as always, is reading and understanding all of the clauses in your publishing
agreements - even the ones that, at first glance, may seem innocuous.
|
 Work
Online to resolve your legal issue today - for an affordable flat fee - in the
following areas:
 Contract Review
Copyright Consultation
Business Consultation
Employment Law
Web Site Privacy Policy
Web Site Terms of Use
Other Legal Services
|
