Legal Issues in Self-Publishing: What Authors Need to Know
From The Huffington Post:
Self-publishing continues its exponential growth. More and more authors are choosing this route for presenting their work to the public, encouraged by impressive success stories, including accounts by bestselling writers who have moved over from traditional publishing to take advantage of greater profits and better control of their works.
But there is one domain that self-published authors rarely think about, which mainstream publishers have traditionally managed: legal issues.
If you self-publish, you are the publisher and thus assume all the legal responsibilities. At first this might seem frightening. But it doesn’t have to be, as I discovered in my interview with Paul Rapp, an attorney who specializes in intellectual property rights in Monterey, Mass. and teaches Art & Entertainment Law and Copyright Law at Albany (N.Y.) Law School.
. . . .
Starr: Isn’t the provision of legal services an area where traditional publishing offers an edge to authors?
Rapp: The issues don’t go away whether you are publishing traditionally or self-publishing. While the legal department of a publishing house may assess the legal issues in a work and advise, or demand changes if necessary, that doesn’t release the author from responsibility. Every publishing agreement that I have ever seen has an indemnification clause in which the author agrees to hold the publisher harmless if there are claims against the publisher for any infringement or violation of personal rights. That being said, most publishers vet books before they go out and have insurance policies that cover most of these lawsuits; the insurers may also vet a manuscript prior to publication. But I think this is happening less and less, leaving the author exposed. And I’m seeing a lot of agreements that, particularly for non-fiction books, require the author, rather than the publisher, to get necessary permissions and licenses to use any third party material.
Starr: What advice do you have for self-publishing authors who have legal concerns?
Rapp: If authors have legal questions and want peace of mind they should get a legal opinion from an attorney. Because of the expansion of self-publishing there are an increasing number of lawyers who will assess legal issues in a book and tell you how to address the problems for a fairly nominal fee. For example, I just finished reading a book on branding. It took a couple of hours. Many lawyers will charge for how long it takes to read the book and prepare an “opinion of counsel” letter. Unless there is a huge systemic legal problem with the book, the letter should generally be one or two pages long. An opinion of counsel letter is a form of insurance; if an author is eventually found to have violated anyone’s rights, an opinion of counsel letter can at least absolve the author of any claim of willfully violating those rights.
. . . .
Starr: What about the use of quotes. Is there a limit to how many words you can quote? One editor told me that 300 words was the limit. Elsewhere I’ve read that it’s related to the length of the work you are quoting from and the length of your book.
Rapp: There are no absolute rules like that and people always say there are. There is no fixed rule about the number of words. If the quote drives your narrative, or if you are commenting on the quote or its author, or using a quote to support an argument then it’s most likely going to be a “fair use” of the quote, and therefore non-infringing. The publisher of the work you are quoting from may squawk, but it’s highly unlikely that they are going to do anything about it. Some publishers have their own standards for how much an author can quote in a book they are publishing in order to somehow justify their own complaints about extensive quotes from their books in works put out by other publishers.
The one tricky area is when people use quotes that are just window dressing. Like when an author quotes the lyrics of a song — even just couple of lines from a song at the beginning of a chapter, as Stephen King often does. Most music publishers take the position that you need permission because this kind of use, they claim, is not driving the narrative or otherwise a fair use. And they may be right — the fair use doctrine is horribly imprecise. I’ve had authors ask me what to do. In those gray area cases, I suggest that they try to get permission. Often the licensing fee is fairly minimal — although it depends on the song and the publisher.
I recently had an author who was putting out a self-published book that had a scene in a bar where a popular song was playing on the jukebox. He quoted the lyrics that were actually mirroring what was going on in the bar. It was really funny. And I said, that’s fair use and you don’t need permission because it’s integral to the narrative of the work. The publisher might disagree but I say go ahead and use it.
. . . .
Starr: . . . Now to the sensitive issue of naming and portraying real people in fiction and non-fiction works.
Rapp: If the person is famous you can say pretty much whatever you want, particularly if it’s an opinion; the first amendment protects your rights on that. If you state a fact you know is untrue, that may cause the famous person harm, and that most people will tend to believe, that’s over the line. Now if it’s a private person, someone who is not famous, and you write about that person by name and disclose things not known to the general public that might be embarrassing or might hold that person up to ridicule then you’ve infringed their privacy rights — it’s called the public disclosure of private facts.
This happens a lot in non-fiction books where the author portrays a non-famous person in a very unflattering way. Even if what the author says is true the person’s privacy rights have been violated.
Link to the rest at The Huffington Post
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I had an interesting experience with the song lyric licensing issue.
I requested a license from Dan Hicks for a full stanza of I Scare Myself. His agent asked for the 2-3 pages of text in which they appeared, and got back to me that “Dan is happy to have his lyrics in your book.” No charge.
Joni Mitchell’s lyrics management is done by a big LA outfit. They wanted $250 for one line of “I Could Drink A Case of You.” Screw that.
At the end of the day, I dropped the lyrics of both.
The lyrics one is interesting….I remember reading Stephen King writing somewhere that he paid $20K for permissions for lyrics that he used in Christine. (This would be back in the day when 20K was a serious chunk of change).
The article is really interesting and well worth any self publishing writer having a read of.
I just dropped the eight-word quote from my manuscript. Something tells me Kanye West isn’t going to license it to me for free.
I was half-expecting this article to be written in the third person.
Since my Bad Apple series is about musicians and a band, they either sing traditional songs–
The bed is too small for my tired head
Bring me a hill soft with trees
Tuck a cloud up under my chin
Lord, blow the moon out please
or lyrics they (I) wrote.
I’d consider it a compliment and publicity to have someone want to use 2 lines of anything I wrote in their work.
Apparently I’m very wrong.
You are entitled to your opinion, and it’s not an unreasonable one. However, that’s a very, very slippery slope.
I meant to add, “And at the bottom of it is Judith Griggs and her business model comprising ‘Whatever is not nailed down is mine. Whatever I can pry loose is not nailed down.’”
Pursuing permissions for quotes can often be more trouble than it’s worth.
A few years ago, Mrs. PG used some excerpts from Dylan Thomas poetry in a manuscript, identified as such, and her traditional publisher freaked out.
Knowing that one of the ways I wasted time in college was writing poetry and that I had always been a big fan of Thomas, Mrs. PG asked me to write some fake Dylan Thomas poetry for her book.
I looked at each Thomas excerpt, sort of dislocated my mind, and, in about 15 minutes, wrote fake Thomas that had a similar meaning so the narrative could proceed. (I had no illusion that my fake Thomas was anywhere near the quality of the original, but the poetry was supposed to be written by a deranged Welsh nationalist so it worked.)
When her editor saw the revisions, she called to complain that the Thomas poetry was still in the book. Mrs. PG sent her before and after versions of each poem and my fake Thomas was published.
YAY!
Amazing what pubishers will flip out about.
Thanks for the post on possible legal concerns for self-publishers! I’ve been trying to dig into setting up my writing as a business, and this is very helpful!
I’m glad it was helpful, E.S.
I was wondering about the song lyrics issue. My second book has a running gag about John Cougar Mellencamp songs being played everywhere (it’s Indiana). I am using a few words, “rain on the scarecrow, blood on the plow…” No more than that, and I don’t think it’s window dressing. But it’s not necessarily driving the narrative. They’re more like an amusing Greek chorus. Gray area, maybe.
I’d be careful about that.
While “Rain on the Scarecrow” is the title – and titles *generally* can be used in fiction without permission (that can be a gray area as some titles may even fall under trademark rules), using “rain on the scarecrow, blood on the plow” are identifiable lyrics.
See:
http://www.justaboutwrite.com/A_Archive_IntellectProp3.html
“Because by nature songs are relatively short, there is no “Fair Use” amount of song lyrics that can be used. I read about an author who wanted to quote from Aretha Franklin’s song, “R.E.S.P.E.C.T.” but was turned down by the music administrator, so he only used one line, “Sock it to me.” He was sued and lost, and the penalty was substantial.”
http://janefriedman.com/2012/01/23/permissions/
“Because songs and poems are so short, you should never use even 1 line without asking for permission.”
http://www.writersdigest.com/editor-blogs/questions-and-quandaries/legal-questions/can-i-use-song-lyrics-in-my-manuscript
“As for song titles, however, titles of any kind (book, song) aren’t copyrightable. But they occasionally can be subject to trademark or unfair competition laws. “If you used a really famous song title or part of a song as a title —say, ‘Yellow Submarine’— that’s so closely tied to a specific group (or artists), then you’d probably get a letter from their lawyers,” Cook says.”
when I applied to quote in a book about seven lines from a song with many stanzas, the singer-songwriter, apologetically sent me to her agencies, which were two. Somehow the song had been divided into two different large music groups who had 50-50 ownership. The seven lines would cost, according to the letters I rec’d $800 from one agency and $600 from the other agency, for $1400 total.
I respect the author, the songwriter, to say yes or no. And I would graciously abide by their wishes, after all it is their work as they see fit. And publicity for their work to be buried in someone else’s book is probably nil unless the book is a huge bestseller. But, given that the singer/songwriter would receive a pittance of $1400, and that the book I was writing had a very small advance for that time… it was not possible to ‘buy’ the permissions.
What I did instead is say such and such songwriter/singer had written about x subject, and that the songwriter/singer had said y about x [in prose]. Kept it brief, made its’ point. But…
the actual lyrics were radiant, I thought, and my own prose about it, whilst brief, was nowhere near as en puente nor as beautiful.
But, onward to the next book, nonetheless. For all of us.
Re article in Huffington. I’d like to hear from several IP lawyers who do nothing but. Just my .02, would an beginning or even midlist self pub’d author really want to pay out a ton of money defending what this teacher of IP says at Huffpo. The damage to one’s pocket book might be devast ating. All things taken into account, I think.
I like PassiveGuyDylanThomas. I’d love to read that!
I concur.
I think the IP attorney was a bit blase in some of his responses and suggestions.
I’ve seen other discussions on the same subject in the past – with other IP attorneys and publishing insiders weighing in – and the consensus generally is always the same: that there isn’t a completely defined “fair use” standard for song lyrics when quoted in fiction. And in any event, it’s a defense used in court (and the judge would have to agree) rather than a protection from being sued.
** ‘a pittance OF /FROM the $1400. Not sure, but imagine writer’s take would be in the low double digits, maybe a couple hundred dollars, with the music agencies taking the lion’s share. But not sure as I’ve not seen the contract. Yet, if as Big 5.5 publishers, payment on certain rights is often not equitably considering who wrote the materials and how very short amount of time it takes to say yes or no to usage.
Beware. This article is based on US law. If you’re selling your books in the UK, you need to check UK law.
Excellent point, Diana.
I’ve been wondering about the lyrics question for a story, because one of the songs is in copyright limbo due to a dispute between the composer and performer on one hand and a distribution company on the other. Something about rights to the CD versus rights to the tape and payments or something equally strange. The song does have bearing to the plot, but probably not enough for me to try and find all three parties and see how much each wants to be paid for permission, if they are willing to grant permission.
Issues such as these are part of the reason I write medievals. I doubt Chaucer or Gower or Froissart’s agents are going to hunt me Shen anytime soon.
That’s hunt me *down*. Sheesh.
Deb, I liked ‘hunt me Shen’ … I thought, gee there must be at least one other family in the world who uses in conversation the word ‘shen’ instead of saying sh–. But I dont think we ever capitalized it. Lol.
Then read your correction and thought I would write to say when using “shen’ in place of sh–, the n is nearly silent. Like this: Sheh, what kind of sheh is that. Holy sheh. lol I hope you are laughing with me. I’ve made so many spelling errors I cannot blame on my spellchecker. lol
Yeah, that’s why I’m using public domain works, like a nineteenth century sea shanty.
Plus, those never go out of style.
The main point of the article is ALWAYS get a proper legal opinion in a letter, as different lawyers can convince different judges of different interpretations of the same laws, especially fair use, and different countries have different laws as well, and the same issue with different interpretations, and it can be a good idea even if you do get written permission, as sometimes people change their mind and when they have good lawyers, it’s good to have a second line of defense – two written letters are better than one.
Good points, Adam.