My dear dudes,

As you know, I am finishing my book and having gotten in touch with the self-publishing world, I encountered a few problems specific to this topic. It is my pleasure and a great honor to have a guest post by Sara F. Hawkins, a recognized attorney in this field, on this topic.

Statistics about the self-publishing industry indicate that it’s experienced stellar growth in the past several years. With over half a million self-published books released in 2015, the last year for which statistics are available, it wouldn’t be a surprise if in 2017 over a million self-published books hit the market. The topics run the gamut, which means that any number of legal issues are considered by authors throughout the writing phase as well as publishing.

Some of the easy legal questions to dispense with are regarding using images. Copyright laws throughout the world are relatively similar in that if you don’t own the copyright you need to have some type of permission. This, of course, applies only if the image is covered by copyright. If you’re not sure if the image is covered by copyright, assume it is until you have sufficient proof otherwise. Using images raises questions about the Fair Use doctrine or parody exception, which may be applicable to some works. However, both are exceptions which allow for copyright infringement but that determination is a legal one and not solely an author’s decision that it would be fair for them to use the image.

The more complex questions tend to have a general rule but, at the same time, be very fact specific. When I’m ask if something is possible for a book, the answer is likely ‘it depends”. Not because that’s what lawyers always seem to say, but it is how this area of law goes. What may be permissible for one author may not be for another. That makes legal questions about publishing even more challenging for authors since they can’t just ask a friend or read a statute or move forward based on what another author did.

So let’s talk about some of the questions that do come up for many authors:

Using Quotes – Whether it’s from a book, magazine, song, or literary work many people have a false belief that you can take “less than 50 words”, “less than 100 words”, “up to two lines”, or other such generalities. Unfortunately, the law says nothing of these type of guidelines. They are, in fact, just that – guidelines. But no one knows who established them or to what type of work they apply. And while this is a copyright issue, let’s not forget there is a plagiarism component when quoting the works of others. Always give credit to the source of your quoted material! Basic guidelines for when you do NOT need to obtain permission are: (1) the work is in the public domain; (2) you’re only mentioning a title or author; (3) you will only be linking to a work, not quoting it; (4) listing of facts only; (5) the work is used under an appropriate Creative Commons license; and (6) the material is covered by Fair Use.

Defamation and Invasion of Privacy – Fortunately for authors, they are not sued very often, although as self-publishing rates rise there may be an increase. While the First Amendment may protect an author from liability, it will not prevent the author from having to defend themselves. Nonetheless, both defamation and invasion of privacy are important consideration for certain types of authors. Both defamation and invasion of privacy are based on how facts are used, changing language to make the facts appear as opinion are insufficient to protect from liability. When telling stories or sharing information about another person, it’s crucial to be cognizant of what information you are presenting, how it was obtained, and what the effects of sharing those facts may have. It’s one thing to present facts from a legal case about a convicted defendant, something potentially different when the defendant was not.

Negligent Publication – Although becoming more common, in the past this wasn’t as much of a concern since traditional publishers have several layers of review standards under which each book is examined. If your book is a ‘how to’ or is presented as some type of guide, you may be liable if your information is incorrect or, even if correct, is used in a way that is foreseeable but unintended.

Third-Party Trademarks – Many authors may not realize that using brand names, especially registered trademarks, can be problematic. While the devil may, indeed, wear Prada, it’s not as simple as it may seem, to incorporate brand names into your book. Trademark holders have a number of laws at their disposal to prevent authors from diminishing their brand’s value or making it appear that the brand is endorsing your work. The major difference with copyright and trademark is that with trademark issues the rights-holder can lose or diminish their rights if they don’t pursue alleged infringers. What to do? If the brand or trademark isn’t an integral part of the story then change it. I know that can be difficult in some instances, but it’s easier than dealing with a cease and desist (or lawsuit).

Idea Theft – In the entertainment industry, the concept of idea theft is alive and well. In publishing, though it’s not nearly as common. However, with self-publishing becoming easier it’s possible that your idea may end up being published before you if you share it widely or entrust strangers with editing your work. It’s easy to feel a kinship in an online forum for authors and share openly about your characters or storyline. Although copyright offers no protection for the idea, the legal theory of idea misappropriation may offer some protection. While each state has their own statute on idea misappropriation, the commonality is that a legal relationship between the parties must exist. So if you are going to ask others to read your unpublished work it would be in your best interest to make sure the other person knows understands the confidentiality of what you are sharing.

Of course there are other legal issues you may face as a self-published author. There may be contract issues with designers or other third parties you hire to help with the book. There could be payment issues from the eCommerce service you use.

As a self-publisher, though, you’re ultimately responsible for your work and not only making sure you’re protected from others but also that you’re able to defend yourself if a legal challenge of any sort is raised. The legal issues should not prevent you from pursuing your goal of becoming a published author. As with most business ventures we pursue, there are legal risks. The key is to be aware of then, understand the risk, and determine if that’s a risk you’re willing to take to fulfill your dream.

Disclosure: This article and any associated comments are for informational purposes only and should not be considered legal advice.

Sara F. Hawkins is a nationally recognized attorney, with a focus on the legal issues affecting online and new media marketing. She works with brands, agencies, online content creators, and entrepreneurs helping them stay on the right side of the complex legal framework that is woven into branding, marketing, and running a successful business. Sara regularly writes and speaks on legal concepts as they apply to the changing advertising, branding, and marketing landscape.