4 Legal Issues to Consider When Self-Publishing
From Guest Blogger Rachel Ryan | With the wealth of online resources and do-it-yourself tools, publishing a book no longer requires writers to go through the arduous, costly, and frustrating, traditional publishing process. Not everyone wants to have their book take six to eighteen months before publication, receive lackluster royalty rates, and lose a large degree of control over the content. Now, writers no longer have to partner with a publishing house and are able to publish a book from their comfort of their own home.
Although self-publishing cuts out the middleman, allows for better royalty rates, and grants greater creative and administrative autonomy to the author, that doesn’t mean the same legal liabilities and hazards one would face when going through a traditional publisher don’t exist. If anything, self-publishers should be more vigilant and proactive, otherwise they risk losing credibility, having their books pulled off shelves, or even a lawsuit.
Before self-publishing, acquaint yourself with the following legal issues, to better protect yourself, your book, and your longevity and livelihood as an author.
Most writers are unaware that a copyright is created in a work as soon as it is written. But, half of the battle is putting the rest of the world “on notice” of a finished work, which can be done by registering it with the Federal Copyright office. Registering a copyright allows for greater legal protection, should it come to light a third party has infringed on certain exclusive rights granted to copyright holders or used a work without the requisite permissions.
A registered copyright provides a self-publisher with concrete legal recourse, increasing chances of a book’s success and permeability in the market. It also:
- Establishes a public record,
- Provides for greater security of exclusive rights,
- Grants a copyright holder the ability to sue in federal court,
- Increases statutory damages,
- Creates a higher likelihood of a preliminary injunction being enforced.
Authors looking to self-publish are likely looking to save on costs and time. The good news is that registering a copyright is a pretty straightforward process, costing just $35 per work (if filled out online), and $65 if submitted by mail. Also, depending on the nature of authorship, copyrights exist with the author for life plus 70, 95, or 120 years, or life plus 25 years under the Universal Copyright Convention.
Is it in the Public Domain?
On the flip side of copyright registration, is a writer’s use and access to works in the public domain, not requiring a license or permission from the author. Using works and content from the public domain is a great way to start an individual work with an already established framework, create a derivative work from it, and save time. Using something from the public domain is similar to building a house. Instead of having to start from scratch by finding materials, cutting boards, and drywalling, writers are provided finished parts and the proper tools needed to assemble the house in their own unique way (with original additions).
A work is deemed to be in the public domain after:
- An author’s exclusive intellectual property rights in the work have expired,
- An author has expressly waived their rights in the work, or
- Copyright law does not cover the specific work.
Writers who aren’t able to find works in the public domain that fit their needs, can look to Creative Commons-licensed content, which is based on copyright principals, and allows for authors to grant and reserve certain rights and conditions in their work.
Fair use is also an effective way to use copyrighted material without having to acquire the necessary licenses or permissions from the author. Fair use includes works that incorporate – criticism, research, commentary, news reporting, and teaching. For a self-publisher or author to be protected against liability for copyright infringement, they should keep in mind the below four factors used to determine whether a work qualifies as “fair use.”
- The purpose and character of the use,
- 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.
Finally, if an author is unable to find or use something from the public domain, creative commons, or under the fair use doctrine, using an intellectual property licensing agreement to negotiate the use of certain content is recommended.
What Constitutes Defamation
Writers rarely get sued, due in part to the freedoms granted under the First Amendment of the United States Constitution. And, when they do get sued for the content of their work, they usually prevail. However, even with the odds in their favor, treading line between defamation and truth or opinion, often lands writers in hot water and should be avoided.
Publishing companies often require writers to promise not to defame persons or invade their privacy, coupled with an indemnification clause should they do so. Self-publishers are no different, and also carry the legal burden of crossing the t’s and dotting their I’s when it comes to defamation. But, what is defamation, and what should a someone self-publishing be on the lookout for?
Defamation is the communication of a false statement to a third party that ultimately harms the reputation of a person, business, or other entity and is classified into two categories; libel and slander. Libel is a false written communication, which includes photographs and other media, while slander is a false spoken statement made to a third party. Writers are only concerned with libel and should acquaint themselves with the below considerations when writing or editing.
Private vs. Public Figure: Private and public figures enjoy differing degrees of protection under defamation law. Public figures are usually fair game to be written about, as they have opened themselves up to a higher degree of scrutiny by the general public and are required to prove actual malice. However, private figures enjoy a higher degree of protection, only needing to prove mere negligence of a written statement.
Similarity: How similar is a character’s name and physical description to an actual person? If the person bringing a claim of defamation is unable to prove they are identifiable to readers, their suit will likely be dismissed.
Truth: Is an assertion or fact about a person true? If so, it’s likely a defense to defamation exists.
Opinion: Opinions are protected under the First Amendment, and as long as a reasonable reader wouldn’t view the writing as an asserted statement of verifiable fact, then there is no actionable claim.
If a Non-Disclosure Agreement is Appropriate
In the publishing world, Non-Disclosure Agreements (NDAs) are seen as a “big no-no.” NDAs aren’t industry standard, and can often give publishers the impression that they are hard to work with, and don’t trust them. Afterall, most editors and agents aren’t going to put their professional reputation and career on the line by stealing a writer’s work. Luckily for writers who choose to self-publish, NDAs shouldn’t cross their minds, as there are minimal parties involved and they want their work to be disseminated and made public, in hopes of generating awareness and revenue.
However, there is one important situation where all self-publishers should be aware of – using a beta-reader. A beta-reader is a non-professional editor who reads the written work, noting grammar and spelling mistakes, along with making content suggestions. When working with a beta-reader, requiring a Non-Disclosure Agreement will help ensure the contents of a work remain undisclosed, protecting the integrity and secrecy, potentially preventing the release of the book from being ruined.
Self-publishing is a rapidly evolving business, and failing to acquaint yourself with the necessary legal protections and considerations before you publish, can result in the failure of your book or worse, a lawsuit for infringement or defamation.
About the Author
Rachel Ryan a legal writer for LegalTemplates.net. Rachel specializes in providing professional, diverse and creative articles, equipping individuals with the perfect tools for a variety of legal issues. When she’s not writing awe-inspiring content, she can be found trying to become the next Martha Stewart.