Ask Author Law

How do I send a DMCA takedown notice?

February 3, 2016

Tags: DMCA, ISP, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trademarks

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I found a website that has posted actual copies of my articles without permission. I have heard about something called "Notice and Takedown." How do I do that?

A: The notice and takedown provisions of the DMCA offer copyright owners a way to protect their works online while limiting the liability of ISPs for copyright infringement. Notice and takedown requires you to police the Internet and search for infringing materials. If infringing material is found, you must submit a notification, under penalty of perjury, to the ISP's designated agent. The notification must:

• bear your physical or electronic signature, or that of your agent;
• identify the work that you claim has been infringed, or, if more than one work is infringed on a single web site, a representative list of the works at that site;
• identify the infringing material that is to be removed, and include any information necessary so the ISP can locate the material;
• provide your address, telephone number, and, if available, an email address, so that the ISP can contact you;
• state that you have a good faith belief that use of the material on the web site has not been authorized by you, your agent, or the law; and
• state that the information in the notification is accurate, and under penalty of perjury, that you are the owner of the copyright that has been infringed or that your agent who is filing the notification is authorized to act on your behalf.

If you fail to comply substantially with the statutory requirements, the notification will not be considered by a court in determining whether the ISP has the requisite level of knowledge to support a liability claim.

Upon receiving your notification, the ISP must promptly make a good faith effort to remove the infringing material from its network or disable access to the material. This is called “takedown.” The ISP will not be liable for any action based on the fact that the material was removed. The timely removal or blocking of the infringing material also means that the ISP will not be liable for monetary damages of you file an infringement action in court.

After removing the infringing material, the ISP must take reasonable steps to promptly notify the subscriber that the material has been removed or blocked. If the subscriber responds with a counter notification, the ISP must provide you with a copy of that response and notify you that it will replace the removed material or cease disabling access to it in 10 business days. Unless you notify the ISP’s designated agent that you have filed an action seeking a court order to restrain the subscriber from infringing your work on the ISP’s system or network, the ISP must replace the material within 10 to 14 business days.

The DCMA provides the subscriber to respond to the notice and takedown by issuing a counter notification. The counter notification must:

• bear the physical or electronic signature of the subscriber;
• identify the material that has been removed or blocked and the location at which the material appeared before it was taken down;
• state under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
• provide the subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is in another country, for any judicial district in which the ISP may be found, and that the subscriber will accept service of process from the you or your designated agent.

The DCMA imposes damages, including costs and attorney fees, incurred by the alleged infringer, the copyright owner, or the ISP against any party who knowingly misrepresents material facts in either the notification or the counter notification.

How to fire your agent

January 19, 2016

Tags: Agent, Agents, Agency Agreement, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trademarks

Q: My agent sold my first two books, which are still selling well, but he hasn’t really done anything with my two most recent proposals. I get the feeling he has bigger fish to fry and that my books aren’t the blockbuster types he would prefer. I’ve decided that another agent might be better for me, but I’m not sure how to proceed from here, from a legal perspective. What do you suggest?

A: You should start with a clear understanding of the legal relationship between you and your present agent. Do you have a written agency agreement or a handshake deal? If you have a written agreement, it probably spells out how the relationship may be ended. For example, either party might be able to terminate upon written notice to the other. The contract might spell out the timing of such notice and, perhaps, specifics such as a requirement to use registered mail. So examine the contract and follow the specified procedure exactly. This is important even if your agent says it’s not necessary. It’s very important to be precise when dissolving a contractual relationship. This doesn’t mean you can’t talk to your agent ahead of time to reach an informal understanding. It just means that you should follow up by dotting all the “i”s and crossing all the “t”s. If you have no written agreement, you should plan to give your agent reasonable notice that you’re making a change and you should do so in writing so there can be no misunderstanding.

Be aware that the change you’re making is only for future deals. You will remain obligated to your first agent for any commissions and expenses related to your first two books. He will also probably continue to receive payments on your behalf and forward them to you after deducting what is owed to him. It may be possible to negotiate a different arrangement, but, if you do, be sure to get a written acknowledgement of the new terms from him. Since your books still generate income, the first agent will probably want to remain agent of record. In the future, though, when the income thins out, he might be agreeable to a change.

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Lucky author can publish a new edition of an old book.

December 31, 2015

Tags: Copyright Renewal, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright Office, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Biography

Q: I am the author of a children’s biography that was published in 1965 by a publisher that has long since gone out of business. I didn’t know any better at the time, so I signed the copyright over to the publisher. The book has been out of print for years, but there was no reversion of rights or out of print clause in the original publishing contract, as nearly as I can recall (although I can’t find the original contract). There is now a lot of interest in the subject of that book because of a recent hit movie and the upcoming hundredth anniversary of one of the events in the subject’s life. I’d like to approach other publishers about a new edition of this book, but I assume I can’t because I signed away the copyright. What, if anything, can I do? Can I write a totally new biography? If so, what will it take to make it a new book that I can copyright in my own name?

A: You’re in luck. Your book was written and published under the old copyright law, which was changed in 1976, with the changes going into effect on January 1, 1978. Under the old law, a copyright had a term of 28 years and could be renewed for another 28. The new law eliminated copyright renewal and created a single term of the author’s life plus 70 years.

If your book had been published just a couple of years earlier, and the first term of the copyright had not been renewed by either you or the publisher, your book would have entered the public domain at the end of the 28th year and neither you nor the publisher would own the copyright. However, for works copyrighted between January 1, 1964 and December 31, 1977, the new and amended copyright law provides for an automatic 47 year renewal without any requirement that the renewal be registered with the copyright office. Your book, therefore, is still protected by copyright. Now the question is, who owns the copyright during the term of renewal. The law says that ONLY the author may claim renewal, and that’s you. The publisher, even if still in business, has lost all rights in the work.

You should definitely claim your renewal by registering it with the copyright office. To do that, obtain Form RE from the Copyright Office and follow the instructions. In order to properly fill out the form, you will need a copy of the original registration or the original registration number. To find that, you’ll probably have to search the Copyright Office records or hire someone to do it for you. There are copyright search firms that can do this quickly or you can pay the copyright office to do it for you, although this can take some time. The Copyright Office charges a reasonable hourly fee to search and most searches take less than an hour, but there can be a time lag before you get the search results. The private search firms charge more, but you can get results within a day or two. You can get more information about renewal of copyrights by calling the Renewals Section of the Copyright Office at (202) 707-8180.

Any author of a work copyrighted between January 1, 1964 and December 31, 1977 should protect the work by renewing the copyright registration. This is particularly important if the original copyright was assigned to the publisher or someone else, because only the author is entitled to renew and you can get those lost rights back by completing the renewal process.

Disclaimer: Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. (more…)

Is it legal to post a newspaper or magazine article of interest to members of a listserv discussion group?

December 23, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Listserv Groups

Q: Is it OK to post a newspaper or magazine article of interest to writers on a listserv? This happened recently on a writers list I subscribe to. Some people said that it was all right to do so because, even though the article was protected by copyright, is permitted under the law as "fair use." Others said that writers should be especially respectful of copyrights. Someone posted the exact text of the fair use section of copyright law itself. Then there were arguments about the interpretation of the law. The debate got quite nasty as people called each other "pirates" and "copyright police." What's the correct interpretation of the fair use law on our listserv?

A: The short answer, in my opinion, is no, it's emphatically not fair use to post an entire article on line. Fair use is a widely misunderstood concept. Like the Bible, the text of a statute seems to allow people to read into it whatever supports their point of view. In our common law tradition, however, the statute is just a starting point. The law is also found in the court decisions interpreting the statute.

The case law about fair use clearly supports, in my opinion, the position that posting of full text material on the internet is almost never fair use. One of the cases where the photocopying of copyrighted material for educational purposes was held not to be fair was a case involving Kinkos, later upheld in the Michigan Documents case. In the listserv discussion, several members criticized the "copyright police" at their local FedEx/Kinkos copy shop. The reason Kinkos became such a vigilant enforcer of copyright law is because the company was a big loser in the case bearing its name -- the case that held academic coursepacks to be infringing. If the photocopying of limited numbers of articles and book chapters, even though for educational purposes, has been held to be infringement, I can't imagine that any distribution via the internet would be found fair, considering the sheer number of copies internet distribution makes possible.

The Kinkos and Michigan Documents cases are distinguished from the 2nd Circuit ruling in the Authors Guild v. Google case because, even though Google has scanned complete books, it only posts "snippets." While the posting of snippets was held to be fair use, the Authors Guild has announced that it intends a further appeal.

The thing that I found especially distressing about the listserv discussion of this issue was the numerous and vociferous complaints about the "copyright police" among a group of professional writers, writers on whose behalf author organizations devote a great deal of effort in promoting understanding and enforcement of copyright laws. If you want to share an article with members of your group, you can always post a link, but please respect the copyrights of fellow writers.

Ask Author Law is a Q&A blog about legal issues for writers. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. (more…)

Am I an employee? My work-made-for-hire contract is not consistent.

November 30, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, WMFH, Work for Hire, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Articles, Non-fiction

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I’m a full time freelancer who writes for many magazines and newspapers. I’ve just been offered a contract to write one article a month for a web site. It has a clause that says I am to be an employee and that everything I write is to be considered a work made for hire. Another clause says that I am an independent contractor. So, if I sign, what will my employment status be?

A: I haven’t seen the entire contract, but it sounds like this web site is trying to insure that it will both own the copyright and avoid responsibility for tax withholding, social security and other such obligations of an employer. WMFH is a tricky concept with two meanings under copyright law. It sounds like the contract was patched together by someone confused about copyright but trying to avoid paying a lawyer.

Whenever a contract is internally inconsistent, it could be subject to interpretation by a court if a dispute arises. In this case, I suspect the court would decide that the “employee” language is less significant than the “independent contractor” language. You might suggest that the language be clarified. If it isn’t, however, I don’t see this as being a big problem for you as long as you understand that you are giving up copyright ownership and won’t be getting any employee benefits.

You should be sure to include all income you receive from this website on your taxes, regardless of whether it sends you an IRS Form 1099. The website could come to the attention of the IRS if it has freelancers writing for it exclusively. Companies sometimes try to designate employees as independent contractors in a mistaken effort to avoid the responsibility for payroll taxes and insurance. As long as you are a true freelancer writing for a variety of publications, the IRS is not likely to consider you as an employee.

If you have any doubts about this website and its inconsistent contract, you may want to think twice about taking this assignment. That said, the legal risk to you is slight. The website could face legal problems, but if you keep good records, continue to write for other publications, and declare all of your income, you should be OK. If working for this website becomes a substantial part of your workload or if you think you should be entitled to employee benefits you would be wise to consult a lawyer.

A tongue-twisting contract term is bad for authors.

October 28, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Clauses, Accounting, Cross-collateralization

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: What is a cross-collateralization clause? I’ve been told to watch out for this, but I don’t know what it is.

A: Cross-collateralization, sometimes referred to as bucket accounting, is not good for authors because it lets a publisher make deductions from the income of one work for sums owing on another work. Such sums can be charges for the cost of alterations, permission fees, fees for revisions, overpayments, or an unearned advance. The cross-collateralization clause is unfair because it gives the publisher de facto insurance against an unsuccessful project by permitting recovery from funds due to authors on other projects.

Here is how to spot these clauses, and what to do when you find them. First, a cross-collateralization clause is not likely to be labeled as such. It may be referred to as “Over Payments,” “Deduction of Sums Owing Under Other Contracts,” or “Joint Accounting.” Look for any language in the contract that authorizes the publisher to deduct money owed to the author for other works.

If the publisher refuses to delete the provision entirely try a compromise position: 1) that no deductions for sums owed under other contracts be made from an advance owed to the author, but rather, any deductions be made from the future income stream; 2) that unearned advances not count as sums owed to the publisher.

Does my catchy title present a trademark problem?

September 23, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trademarks

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, leave a comment below or send it to Authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.

Q: I'm writing a book with a catchy, appropriate title and just discovered that an organization in another state uses the exact same words as the name of their ongoing workshop. In their promo literature they have a tiny "sm" (service mark) next to their name. Am I out of luck? Does this mean I now have to come up with a new title or ask this organization to give me permission to use their workshop program name as the title of my book?

A: This is one of those questions to which the answer is a resounding “it depends.” There are many factors to consider as you decide what to do. The answer depends on whether those looking at the book would assume sponsorship by, endorsement of, or affiliation with the organization. You should ask yourself whether people buying your book might assume that you represent or support the organization and its point of view. If the answer is yes, then you should probably find another title or get the organization’s permission to use the title. Another possibility is to use the title with a disclaimer that says your book is not associated in any way with the organization.

If your book is going to receive nationwide distribution and the subject is similar to the subject of the organization’s workshop, there could very well be a potential problem of trademark infringement and you would probably be wise to change the title. If your book, however, covers a different topic from the organization’s workshop or the organization operates in only a small geographical area and isn’t widely known outside of its home turf, then you might not have a problem. In that case you would be wise to ask an attorney to have a trademark search performed. Such a search will identify whether the organization has taken steps to register its service mark at the federal level for workshops or services that might be similar to the topic of your book. If it has taken such steps, you’ll probably decide to change the title in order to avoid a potential trademark infringement problem.

A third factor to consider is how common and generic your proposed title is. If it’s distinctive and closely associated with the organization, you should probably not use it. If it’s based on a common phrase and accurately describes your book’s content, it’s less likely to be a problem. If you really want to use this title and you’re not confident about the potential implications, you might want to confer with a trademark attorney. (more…)

Book Rights to License or Keep

September 12, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.

Q: How do I decide what rights to grant to a book publisher and what rights to hang on to?

A: “Very carefully” is the tempting flip answer, but seriously, there isn’t really a standard response. If you have an agent, the agent will probably have you retain more rights that you will probably want to keep if you’re negotiating your own contract. In general, a trade publisher will expect, at a very minimum, the primary rights to include exclusive hardcover book publication rights in the English language in North America. The publisher may reasonably expect other exclusive primary rights as well, especially trade paperback and very possibly mass market paperback rights. The publisher will also rightfully expect certain exclusive subsidiary rights, particularly book club rights. The publisher should NOT reasonably expect to get the copyright, so be alert for any unfairly inclusive language such as all rights, work made for hire, or assignment of a copyright.

While primary rights are almost always exclusive (meaning only the publisher can legally exploit them), subsidiary rights can be exclusive or non-exclusive. Which rights you license to the publisher and which ones you retain are best determined by considering who is in the best position to exploit the rights on your behalf and the proposed rate of compensation. If the publisher is likely to market movie rights aggressively, for example, and you don’t have any way to reach Hollywood markets yourself, it’s probably best to allow the publisher to act as your agent. If you plan to engage an entertainment agent, you may prefer to retain those rights.

Another factor in your decision will be the proposed split of income between you and the publisher. A 50/50 split for book club rights is traditional, but with most other subsidiary rights (subsidiary rights are, by definition, all rights that aren’t primary, and vary from contract to contract), the publisher is really functioning as an agent, so the split should reflect that approach. You might have to pay an agency commission of 25% for the marketing of foreign rights, for example, so a 25/75 split is probably appropriate. It’s been my experience, though, that many publishers expect an unrealistic “commission” for the exploitation of subsidiary rights, sometimes approaching 95% for certain electronic rights. Such a lopsided split is not really fair.

Although I don’t like to generalize about contracts, a good practice would be to try to retain as many rights as you can unless you really think it’s to your advantage to let the publisher have them. When negotiating, it’s often useful to ask the publisher what rights it really needs. The publisher’s boilerplate list of subsidiary rights can be usually be pared down and/or the split improved if you take this approach. (more…)

Finding the Right Lawyer

April 30, 2015

Tags: Attorney, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Lawyer, Law, Legal, Rights, License

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: You answered a question for me and suggested that I might need a lawyer to handle my problem. The trouble is that you don’t make courtroom appearances in my state and I need someone to file a lawsuit on my behalf. Do you have any suggestions about how to find a good lawyer? Do I really need someone who understands copyright law? My neighbor is a corporate lawyer and I have a cousin who does divorce law.

A: You wouldn't go to an ear, nose, and throat doctor for a skin disorder, or to a heart specialist for heartburn. Yet many writers don't realize that attorneys aren't one-size-fits-all legal problem-solvers, either. For contract and other general matters involving publishing law, look for a lawyer who focuses on intellectual property or publishing matters. Litigation is its own field, however, so if your matter will involve arbitration or courtroom proceedings, a litigator familiar with publishing disputes is probably your best bet. You may want to ask a publishing attorney if he or she ever teams up with litigators.

How can you find a good attorney? You could ask your family lawyer for help in finding someone. A good lawyer understands his or her own limitations and is often willing to help find a well-qualified colleague. Word of mouth is a tried-and-true (and often best) source. Begin by asking friends in the writing or publishing business, or contact writers' or other professional organizations to which you may belong. Local and state bar associations can usually give you a lead to a good lawyer, often with an initial consultation at a reasonable rate. There are also some excellent publishing law bloggers you could contact.

When you retain an attorney, you may need a written agreement outlining the matters he or she will be handling for you along with the firm's fees and billing policy. Attorneys have various ways of charging. For some it is a straight hourly rate and others charge a flat fee. I prefer a hybrid arrangement in which I charge a fee based on my hourly rate, but capped at a certain number of hours even if the matter takes longer. It's reasonable to ask questions up front such as how quickly you can expect phone calls to be returned; how often you'll receive written or verbal updates; and the overall time frame within which you can expect the legal work to be performed or the case to proceed.

What if you and your attorney aren't getting along? Lay your cards on the table as soon as possible. Simple communication problems can often be resolved just by talking about them. If you decide it's necessary to terminate the relationship with your attorney entirely, you have an absolute right to do so. Just be sure to convey your decision in writing and ask for a copy of your complete case file.

Are you unnhappy with what you think is an unfair fee? Local bar associations often provide mediation assistance in resolving fee and other attorney-related disputes. Remember, though, that just as you, a professional writer, expect to be fairly compensated for your work, a lawyer is entitled to a reasonable fee. You should also keep in mind that no lawyer can guarantee the outcome of a legal matter, so don’t expect the fee you pay to be related to the outcome unless you and your lawyer have reached a different arrangement. My dentist and I commiserate with each other that we both work in professions where people sometimes have to pay us to suffer. And, just as my dentist urges his patients to practice good oral hygiene, I urge authors to consult with a lawyer before problems arise rather than have to pay later when things go wrong.

One last point: many writers think they can handle publishing law issues on their own or by consulting with their professional colleagues. Sometimes that’s true, but many times it’s a mistake. There are times when you need some objective professionalism. There’s an old saying that the lawyer who represents himself has a fool for a client. That applies to authors, too.

Using Photos of People in a Coffee Table Book

April 24, 2015

Tags: Privacy, Right of Publicity, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Editorial Use of Photos

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I was reviewing your website and was wondering if I have to be concerned with any legalities on my ORB (ORBS are spirits --deceased persons-- captured in photography) picture book prior to publishing.

The coffee table type picture book includes most of my own personal photography taken at family weddings and functions. For others who have shared their ORB pictures and spiritual captures, they have given me approval to use them.

As far as my own personal collection, do I need approvals from family members? I was thinking I would also keep the persons anonymous as I talk about the orbs in the pictures, with exception of when I include the actual picture of person who is deceased, as I do believe that was someone’s spirit captured in an orb.

A: What an interesting question! It raises three basic legal issues – copyright in the photos themselves and the rights of privacy and publicity for the subjects of the photos.

Photographs are copyrightable subject matter, and the copyright in them belongs by default to the photographer (legally the “author” or “claimant”) from the moment the photo is first captured in a tangible medium of expression (on film or digital medium). This means that you are the copyright owner of the photos you took yourself. You are, therefore, free to publish them without any worries about copyright infringement. As to the photos you obtained from others, you say that you have permission to share them. You need to confirm with those people whether they were the actual photographer because it’s the photographer -- not the subject-- who owns the copyright. Permission to use a photo in a publication is basically an implied license and is a defense against copyright infringement for all the photos where the actual photographers gave permission. If the “shared” photos were not shared by the actual photographers, however, you should track down the person who actually took the photo and obtain his or her permission to publish.

Subjects of the photos raise additional legal questions. Whether or not you need permission to include the individuals shown in the pictures depends on several factors. Editorial use of photos in newspapers, TV or online news coverage, magazines, and books is protected by the First Amendment and are generally free to publish, as long as an individual’s privacy is not being invaded. A book, (even if profitable) is considered to be editorial in nature. If you were using the photos to advertise or endorse a product, you would definitely need written consent from the living subjects, because they have a “right to publicity” for use of their name and image for commercial purposes. In your situation, your coffee table book is probably editorial rather than commercial in nature, so I would say that you don’t really need permission of the living subjects, provided none of them are celebrities and you are not invading their privacy.

A word of warning about privacy. There is no right to privacy for people in public places, but if the photos show subjects inside private homes or private yards, you should get their consent. Deceased persons – in this case the ORBS—do not have a right to privacy any longer, so you don’t need consent to include them – even in a private setting.

I’ve already said that your book is probably editorial in nature and therefore you don’t need to be concerned about the rights of publicity of the subjects. Most deceased individuals don’t have a right of publicity, but there are some exceptions for celebrities. Dead celebrities in some states (such as Tennessee and California) have a continuing right of publicity. Elvis Presley’s estate, for example, still controls the rights to commercial use of his name and image. So if any of your ORBS are famous, you should be careful not to use them to promote your book in commercial ways, such as putting their photos on ancillary materials like coffee mugs or t-shirts.