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- 1. Legal Issues for Self- Published Authors Presented by Lila Bailey, digital copyright lawyer Los Angeles, CA January 11, 2014
- 3. Quick notes • Not legal advice! • Ask questions! lila@lilabailey.com 3
- 4. Introduction lila@lilabailey.com 4 Photo by: dw capital GmbH, CC-BY-SA Image from the Public Domain
- 6. Overview Part I: Copyright Basics Part II: Contractual issues Part III: Licensing lila@lilabailey.com 6
- 9. 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…” lila@lilabailey.com 9
- 10. automatic protection • 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. lila@lilabailey.com 10
- 11. registration Registration is only required in order to enforce copyright in court (gives courts jurisdiction). lila@lilabailey.com 11
- 12. © 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. lila@lilabailey.com 12
- 13. No © protection/Public Domain The public domain is not a place! Things that are not protected by copyright 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) lila@lilabailey.com 13
- 14. Length of © 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. lila@lilabailey.com 14
- 15. © 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 lila@lilabailey.com 15
- 16. Exclusive Rights Copyright law gives the owner of a copyrighted work the exclusive rights to do and to authorize any of the following: 1. to reproduce; 2. to prepare derivative works; 3. to distribute copies; 4. to perform the copyrighted work publicly; and 5. to display the copyrighted work publicly. lila@lilabailey.com 16
- 17. 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 abridgements. 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). lila@lilabailey.com 17
- 18. 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 lila@lilabailey.com 18
- 19. © infringement 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 lila@lilabailey.com 19
- 20. What if someone puts my work on the internet w/o 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 platforms will have specific procedures for responding to DMCA notices. Look in Terms of Service or Copyright Policies. lila@lilabailey.com 20
- 22. License vs contract License = Unilateral permission to use someone’s property Contract = A mutual exchange of legal obligations lila@lilabailey.com 22
- 23. Basic elements “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 lila@lilabailey.com 23
- 24. 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. lila@lilabailey.com 24
- 25. Types of agreements (continued) • 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. Still need to READ EVERY PAGE! • ISBN • MyIdentifiers.com will give you ISBNs for all versions of your book (hard cover, paperback, eBook) lila@lilabailey.com 25
- 26. 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). lila@lilabailey.com 26
- 27. Important 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?) lila@lilabailey.com 27
- 28. Important provisions 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. lila@lilabailey.com 28
- 30. Important provisions Warranty & Indemnification. These are the clauses most likely to make your eyes glaze over. 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. lila@lilabailey.com 30
- 32. License vs contract License = unilateral permission to use someone’s property Contract = A mutual exchange of legal obligations lila@lilabailey.com 32
- 33. lila@lilabailey.com 33 “My problem isn’t piracy… it’s obscurity.” – Cory Doctorow, author of Little Brother and Homeland, editor of Boing Boing
- 34. Creative commons A non-profit organization that offers a simple, standardized way to grant copyright permissions for creative work. Photo by Tyler Stefanich - CC BY
- 35. Cc licenses let you • Copy • Share • Adapt • Remix/Reuse …Legally!
- 36. 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.
- 37. Non-commercial Let others copy, distribute, display and perform the work for non-commercial purposes only.
- 38. No derivatives Allows others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it.
- 39. Share alike If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
- 41. Three “layers” • Legal Code – Contains the legalese to make the license enforceable just about anywhere in the world. • Human Readable – Contains language normal people can read and understand. • Machine Readable – Contains metadata written in a format that software systems, search engines, and other kinds of technology can understand.
- 42. Makes works easy to find lila@lilabailey.com 42
- 43. • 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. CC + fair use Photo by David Neubert – CC BY-SA.
- 45. Contact info Lila Bailey Partner, The Law Office of Lila Bailey lila@lilabailey.com @LilaBaileyLaw www.lilabailey.com lila@lilabailey.com 45
Editor's Notes
- Today I’m going to talk to you about some legal issues that arise when you decide to self-publish your writing. Up till a few years ago, publishing a book, article or essay generally required working with a traditional publisher, who would help you with everything from editing copy to making and distributing physical copies of the material. Today, everyone is walking around with a printing press in his or her pocket, and many people “publish” on a daily basis by posting on Facebook, Tweeting, blogging and so on. The Internet has democratized and decentralized publishing, so that today anyone can become a small publisher. Today I’m going to focus on people who are interested in publishing books – either fiction or non-fiction. There are many benefits of self-publishing – you get the final say over everything from content, to cover design to the title of the book. You retain all your rights. Nothing goes out of print, unless you want it to. And you can make a bigger percentage of the royalties that come from the sales of the book.
- The barrier to entry is now very low, so many many people have gotten into the self-publishing business. That means there are a lot of low quality books out there, and also tons of competition. But every few months we hear stories in the news of self published authors hitting it big. Hopefully, some of what we’ll talk about here today will help you on your way to a successful and satisfying experience with self-publishing.
- One area that traditional publishers have always handled for authors is the legal issues. SO if you are going into the world of self-publishing, there are some basic legal areas to know about before you jump in. Today I’m going to cover three major areas, but to be clear, this isn’t everything! For example, I’m not going to get into legal issues around things like portraying real people in fiction or non-fiction, defamation, libel and the like.
- When people begin writing, they often worry about someone “stealing their ideas or story” Thankfully this happens far less than you might think. The law that generally protects the creative expression embedded in your writing is copyright law.
- 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. The goal of the law is not necessarily to make sure you get PAID for your work, but one of the ways Congress has chosen to promote the progress of the arts is by granting economic rights to authors and creators. But it’s important to understand that these exclusive rights are balanced by other parts of the law to make sure that it can’t be used to censor people or to stifle the very creativity it is designed to protect. These limits allow you to use certain building blocks of creativity without concern for getting sued. That’s why having some exceptions to a copyright holder’s exclusive rights is important for everyone who wants to create. We’ll talk more that those later.
- Automatic protection is a requirement that comes to us through international treaty obligations. The US signed on to the Berne Convention in 1988, it went into effect in 1989 – and at that point, the US gov could no longer require any “formalities” in order to grant copyright protection. So registration is NOT required. 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 (we’ll talk about those later). Highly recommend doing this once you have a finished version of the book – when you can send in a physical copy of the book along with the forms.
- Many people think of the public domain as – anything that is freely available to the public. But in copyright world, the public domain has a very specific meaning – i.e., that the work 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!! Copyright law sets out certain kinds of things that are simply not protected by copyright, and those things are considered “public domain” – like facts or ideas. Things like recipes, or the rules of a board game are not copyrighted. Facts are not copyrightable, but if you’re writing a history, or a news article, the way you express facts is copyrightable. If you’re writing a play, or fiction, note that super basic plot structures, like “boy meets girl, boy looses girl, boy gets girl back” are not copyrightable. You get to tell you own version of that particular polt line in your own way.
- The length of protection for copyright has been expended consistently over the years. The first copyright law gave 14 years of protection only. Today, if we’re talking about an individual author, as opposed to a corporate one, the term is life +70. After that, it’s in the public domain and there are no copyright restrictions. That means anyone may do anything they want, including making copies and selling them.
- Individual works – one author, but the copyright can be assigned or transferred or bequeathed to another person or estate. Copyright in these cases vests in the single author. Joint works – more than one author, equally contributing to a work (and intending their work to be a joint work). Best example is when 2 people jointly author an article or book. Each owner has full rights to exploit the work, license it, etc. No joint ownership if one person just writes a chapter of the book and gets separate credit, or if their independent works are put together at a later time. Compilations – Newspapers, anthologies, etc. You can own a separate copyright in your arrangement of other people’s works. So if I put together a series of public domain children’s stories, I would own the arrangement of those stories, but not the content of the individual stories. Work for hire – when a work is created by an employee in the scope of her employment, the work is owned by the employer, unless there is a written agreement otherwise. Independent contractors own their own work.
- Talk about what each right means. Note that “public performance” is a term that sounds like you’re up on a stage doing a play or a concert, but it applies to things like streaming. The Supreme Court just held in the Aero case that” to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible,” and it was public: Provider that sold subscribers broadcast television programming streamed over the Internet from small antennas housed in a central warehouse performed copyrighted works “publicly” within meaning of the Copyright Act's transmit clause; although each performance was capable of being received by only one subscriber through a dedicated antenna, the provider communicated the same contemporaneously perceptible images and sounds to a large number of people who were unrelated and unknown to each other. Derivative works are any works based on the original, like a translation or the movie version of a book. Think of these rights as a “bundle of sticks” – the owner can take out just one stick or keep them all together. It’s possible just to get a license for reproduction but not distribution, or a transfer of one of these rights just for a limited period of time. If the owner sells all rights together unconditionally, this is called an “assignment.”
- When we talk about subsidiary rights later on in the contracts section, you will want to remember what a derivative work is.
- As an author, you are probably mostly concerned about other people using YOUR work. But what about when you want or need to use someone else’s work? Photos, graphics, quotes, historical documents… there may be times when it is important for an author to be able to make reference to others’ work. Remember, just b/c you found it on the Internet does not make it free for you to use!! Fair use is the main legal doctrine that tells you when it’s ok to use someone else’s work w/o getting permission. 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 come after you in court.
- Direct infringement happens when the plaintiff can show they won 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.
- W/o a big publisher behind you, it might seem intimidating to police your own copyrights. Luckily the law has actually made it pretty easy to get you work taken down from a website without spending money on lawyers and going to court.
- Assignment of all rights, or some subset? (whose name is going on the copyright registration? Author or publisher?) Term or time period? Geographic scope? Primary rights – hardcover, paperback, mass market, digital Secondary rights – periodical, book club, dramatic, film, audiobook, radio, merchandising, new technologies, foreign translations… For royalties, you generally want them to be based on list price, not net income earned by publisher. Also – know when you are getting paid, how often, and when/how accounting will be done.
- Generally a publisher is going to want you to promise that you are the sole author, that it hasn’t been previously published, that it doesn’t infringe anyone else’s rights.
- If you decide to go the traditional publishing route, the license agreement will be contained within your publishing contract. But if you decide the retain the rights in your work, then you have many options for how to manage those rights.
- 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!
- The licenses just help you to change the deal that’s given to you by default by law. They rely on copyright law to function. You may still make fair use of a CC licensed work – e.g., if the creator has not given permission for commercial use, but you make a fair commercial use, then the license does not stop you from doing that. You can also ask the creator for permission to go beyond the scope of the license. CC licenses provide legal certainty where fair use does not CC licenses often give you broader permissions than fair use Also, fair use may not allow you to copy the entire work – you’re only allowed to take a “reasonable amount” Fair use may not allow commercial uses, if there would be market harm But CC licenses allow you to copy the whole thing And some allow commercial use without worry
- 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. All CC licenses require attribution Some people require www linkbacks as part of the attribution clause.
- Lets others copy, distribute, display, and perform the work for noncommercial purposes only. The author retains the commercial rights. Users may still request to use the work commercially, which may cost money.
- Allows others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it. For the purposes of CC licenses, syncing music in timed-relation with a moving image is a derivative work.
- If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
- You’ll be given an icon to place on your website or content, to signal to others how you want your work to be used and shared. You can get the license from the CC website – it’s completely free.
- On Google you can Go to Search tools, then Usage Rights, and pick from a dropdown menu