Legal Issues For Self-Published Authors

Legal Issues For Self-Published Authors

Presented by Lila Bailey, digital copyright lawyer.


Overview

Traditionally, publishers have handled legal issues for authors. So if you are going into the world of self-publishing, there are some basic legal areas to know about before you jump in. I will cover 3 major areas, but this isn't everything! For example, I will not cover issues such as portraying real people in fiction or non-fiction, defamation, libel, etc.

  • Part I: Copyright Basics
  • Part II: Contractual issues
  • Part III: Licensing

Part I: Copyright Basics

Copyright

Legal Foundation for Copyright

Constitution: Article 1, § 8. “To promote the progress of Science and Useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…." The general purpose of copyright law is to promote the progress of the creative arts by giving authors and other creators certain exclusive rights in their work.

Protection & Registration of your Copyright

  • Copyright protection automatically applies to original works of authorship that are “fixed in any tangible medium of expression.” You don’t need to do anything other than write your ideas down to have your work protected by the law.
  • Registration is only required in order to enforce copyright in court (gives courts jurisdiction). But registration has benefits. It allows others to locate and identify the author, and importantly, registration is required prior to initiating a copyright lawsuit, and it entitles the author to elect statutory damages.

Copyright Subject Matter

Works of authorship include the following categories:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

No Copyright Protection / Public Domain

In Copyright law, the public domain has a very specific definition: a work that has no copyright restrictions associated with it. It’s very important to keep in mind that just because you find a cool story, quote, or image on the Internet, that does not mean it is free of copyright restrictions!!

Things that are not protected by copyright, and fall into the public domain, include:

  • Facts, data
  • Ideas, methods, or systems
  • Names, Titles
  • Short phrases, expressions
  • Basic plot structures
  • Works of U.S. Federal Government
  • Utilitarian objects
  • Expired copyright (works published before 1923)

Length of Copyright Protection

  • If the work is written by an individual author and first published in the United States after 2002, the term of protection is life of the author + 70 years.
  • After that, the copyright term expires, and the work becomes part of the public domain.

Copyright Ownership

  • Individual Works
    • Owned by the single author (or estate, or organization)
  • Joint Works
    • Owned jointly by two or more authors
  • Compilations
    • Ownership can vary depending on circumstance
  • Works for Hire
    • Owned by employer

Exclusive Rights

Copyright law gives the owner of a copyrighted work the exclusive rights to do and to authorize any of the following:

  • to reproduce;
  • to prepare derivative works;
  • to distribute copies;
  • to perform the copyrighted work publicly; and
  • to display the copyrighted work publicly.

Derivative Works

A derivative work is a work based on or derived from an existing work, such as translations, motion picture adaptations of novels or plays, sequels, revisions, and abridgments.

Concept important in fan fiction:

  • You have a copyright in anything you write, but if it’s based on someone else’s work, it might be infringing on their derivative works right.
  • Generally, you are not permitted to write a new story for someone else’s characters without permission (unless it’s fair use).

Fair Use

Fair use sets out when it’s OK to use someone else’s copyrighted material.

There are no hard and fast rules, but the factors to consider are:

  1. Purpose & character of the use
  2. Nature of the work
  3. Amount taken
  4. Market harm

If your work relies on third party works – for example, if you quote extensively from a famous song – you might want to get an opinion of counsel letter. This can help you to understand how much is ok or if you’re over the line, and can protect you in case someone does decide to come after you in court.

Copyright Infringement

Direct infringement happens when the plaintiff can show they have a valid copyright, and that one of his exclusive rights has been violated – such as the reproduction right or the distribution right. So if you make an unauthorized copy that is not somehow allowed by law (such as by fair use), then you can be held directly liable for copyright infringement.

The plaintiff does NOT have to prove that you intended to violate copyright law, or even that you KNEW you were violating the law. Some kinds of legal claims require that you intended what you were doing, or that you were negligent in not knowing you were violating the law. But when this requirement is absent from the law entirely, that’s what it means to be “strict liability” – copyright is a strict liability tort.

To prove infringement you must show:

  • Valid copyright
  • Violated at least one exclusive right

Strict liability

  • No need to prove that you knew or intended to violate copyright

What if someone publishes my work on the internet without my permission?

  • If you find your work hosted somewhere on the Internet, the law provides “Notice and Takedown” provision to get your work removed from the site quickly.
  • This law is known as the Digital Millennium Copyright Act (DMCA). 17 U.S.C. § 512.
  • Most online platforms will have specific procedures for responding to DMCA notices. Look in Terms of Service or Copyright Policies.

Related Services


Part II: Contractual Issues

License vs. Contract

  • License = Unilateral permission to use someone’s property
  • Contract = A mutual exchange of legal obligations

Basic Elements of a Contract

  • “Meeting of the minds”:
    • the parties must all agree to the same things, mutual assent
  • Consideration:
    • exchange of legal rights
  • Capacity:
    • the parties must be of legal age and of sound mind
  • Only for legal goods/services:
    • contracts for illegal things are not valid
  • Specific terms:
    • must set forth the exact details of the agreement
  • Form:
    • oral and written are both binding, but advisable to get things in writing in case of later disputes

Types of Agreements

  • Editor/copy editor/fact checker
    • All writers need an editor! Agreements can be simple, but make sure to specify exactly what each side will provide and what triggers payment
  • Agreements with beta readers
    • Even if you are just asking your friends, you will want a simple NDA.
  • Cover design, illustrator, photographer
    • Making a high-quality finished book may take skills you do not have, and you may decide to hire people to help you. Again, it’s important to have an agreement in writing that clearly spells out what each party’s responsibilities are, and payment terms.
  • eBook conversion
    • You may be able to do this yourself, but if you hire someone to help, you’ll need an agreement.
  • Printing
    • If you are self-publishing a physical book then you will need someone to print hard copies for you. There are many print on demand services out there. Make sure to understand things like who pays for shipping and what happens if copies are damaged on delivery, etc.
  • Distribution
    • Ingram or Amazon CreateSpace for physical books
    • Kindle Direct Publishing, Nook, iTunes, etc. for eBooks. These agreements are largely take-it-or-leave it forms when you sign up for the service. It's important to read every page!
  • ISBN
    • MyIdentifiers.com will give you ISBNs for all versions of your book (hard cover, paperback, eBook)

Negotiate Everything!

Even when you are offered a “take it or leave it” deal – in sales, everything is negotiable.

  • Look for special deals on packages.
  • Use different platforms against each other.
  • Don’t be afraid to ask for deal sweeteners (like extra free copies of your book).

Important Contract Provisions

  • Rights (a.k.a., license)
    • This is probably the most important thing your book contract will define. Read it carefully! Beware of signing away subsidiary rights. Except for print rights, all other rights are negotiable. Even a first-time author should be able to keep foreign and film rights.
  • Royalties
    • This is how you will get paid, so pay close attention! These are almost always negotiable. Make sure you understand the formula they will use to calculate – not just the percentage but also the price on which the percentage is based (retail? wholesale? net?).
  • Options Clauses
    • Usually gives the publisher the right to buy or make an offer on the author’s next book. Generally this will be a bad deal for you, and you shouldn’t accept any options clauses.
  • Out of Print Clauses
    • When your book goes out of print, you will get back all your rights. Ideally, whether the book is “in print” should be pinned to the publisher’s marketing efforts. When they stop marketing your book actively, it should be considered “out of print” and all rights revert back to you.
  • Warranty & Indemnification
    • The warranty section sets out the promises you are making to the publisher (such as you are the sole author of your work). Make sure they are all true before signing!
    • Indemnity provisions set out the rights and responsibilities of the parties if a claim is made by a third party. Usually they say that the author will have to pay for the cost of litigation against the publisher if anyone sues over the book. Make sure you understand what is covered here, and try to negotiate these as narrowly as possible.

Part III: Licensing

License vs. Contract

  • License = Unilateral permission to use someone’s property
  • Contract = A mutual exchange of legal obligations

Creative Commons

A non-profit organization that offers a simple, standardized way to grant copyright permissions for creative work.

Instead of All Rights Reserved, you get to pick and choose what you want and what you want others to be able to do with your work. The licenses also make it easier for people to be able to find your work, because search engines can pull up works based on CC license terms.

Allows you to manage your copyright, and share your work, while not losing control over it. And you don’t have to hire a lawyer to do it!

Benefits of Creative Commons License

A creative commons license allows you to legally:

  • Copy
  • Share
  • Adapt
  • Remix/Reuse

4 Limitations authors can impose on Creative Commons works:

Attribution

  • Attribution
  • Allows others to copy, distribute, display, and perform the copyrighted work — and derivative works based upon it — but only if they give credit in the manner specified.

Non-Commercial

  • NonCommercial
  • Let others copy, distribute, display and perform the work for non-commercial purposes only.

No Derivatives

  • No Derivatives
  • Allows others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it.

Share Alike

  • No Derivatives
  • If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.

Creative Commons & Fair Use

  • Creative Commons licenses do not affect fair use rights, which means you are free to make fair uses of CC licensed materials.
  • But, importantly, CC licenses grant you permissions that often go beyond what fair use would allow, so you don’t have to worry or ask permission.

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Fair Use in Film Package

VIEW

Analysis and advice for filmmakers and documentary makers around the application of the fair use use doctrine on a specific project.


Presentation in Full