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LEGAL ISSUES FOR
SELF-PUBLISHED
AUTHORS
PRESENTED BY LILA BAILEY, DIGITAL COPYRIGHT LAWYER
OAKLAND, CA
APRIL 18, 2015
INTRODUCTION
Photo by: dw capital GmbH, CC-BY-SAImage from the Public Domain
OVERVIEW
Part I: Copyright Basics
Part II: Contractual issues
Part III: Licensing
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…”
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.
REGISTRATION
Registration is only required in order to
enforce copyright in court (gives courts
jurisdiction).
© 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 ©
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)
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.
© 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:
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.
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).
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
© INFRINGEMENT
To prove infringement you must show:
• Ownership of a 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 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.
LICENSE VS CONTRACT
License = Unilateral permission to use
someone’s property
Contract = A mutual exchange of legal
obligations
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
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.
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)
DECISIONS,
DECISIONS
If you do decide to go the self-publishing route, it
is quite important to understand the terms of using
tools and platforms designed to help you get your
book out to the world.
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 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?)
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.
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.
HIGHLIGHTS
Pros:
• You won’t get sued
• You can make
money
Cons:
• 18 & up only
• You give Amazon
exclusive rights (can’t
post elsewhere)
• No reversion rights
• Amazon sets the price
• Must comply with “World
Content Guidelines”
• No Crossovers allowed
LICENSE VS CONTRACT
License = unilateral permission to use
someone’s property
Contract = A mutual exchange of legal
obligations
“My problem isn’t
piracy… it’s obscurity.”
– Cory Doctorow, author of Little Brother
and Homeland, editor of Boing Boing
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
CC LICENSES LET YOU
• Copy
• Share
• Adapt
• Remix/Reuse
…Legally!
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
Let others copy, distribute, display and perform the work for non-commercial purposes only.
NO DERIVATIVES
Allows others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it.
SHARE ALIKE
If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
SIX LICENSE OPTIONS
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.
• 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.
CONTACT INFO
Lila Bailey
Partner, The Law Office of Lila Bailey
@LilaBaileyLaw
www.lilabailey.com
