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Ask Author Law

Book Rights to License or Keep

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.  Read More 
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Finding the Right Lawyer

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.  Read More 
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Using Photos of People in a Coffee Table Book

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.  Read More 
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Fair Use, a Slippery Concept

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 have been told that grabbing a picture off the web to use in my blog is fair use and therefore legal, especially because my blog is in support of a nonprofit charity. But I have a letter from a photographer saying that I have infringed his copyright in a photo I posted. Who is right?

A: In my opinion, the photographer is right and you are wrong. Individuals and organizations who post copyrighted materials on social media sites often cite fair use as the reason it’s OK to do so. But fair use is not well understood. There are more myths, misunderstandings and false formulas about fair use than there are reliable facts about it. It’s not wise to assume that any proposed use of copyrighted material on a social media site meets the legal standard of fair use.

The U.S. Supreme Court has called the “fair use” doctrine “the most troublesome in the whole law of copyright.” Fair use is subtle and complex because its meaning must be determined by context. In fact, one Federal Court justice called it “so flexible as virtually to defy definition.” To make things more complicated, courts have not hesitated to expand or restrict the scope of fair use protection to serve the “interests of justice.” Is all this complexity really necessary? The answer is yes. The fair use doctrine is a judicial and legislative attempt to balance the interests of copyright holders, society at large, and individual information users. Fair use cannot do that if it is overly simplistic. So, exactly what is fair use and how does it apply to the work of freelancers?

Fair use is not a “right.” It is an affirmative defense to copyright infringement. In legal terms, an affirmative defense acknowledges wrongful behavior but provides an excuse. Self-defense is an affirmative defense to murder because the accused admits to killing the victim, but offers an excuse. This means that the fair use does not apply to material that cannot be protected by copyright in the first place. Copyright cannot protect ideas, facts or events, but only creative description and expression. Ideas and facts, therefore, may be freely copied. Fair use comes into play only when there exists a copyright that has been infringed.

Fair use is codified in statute form as Section 107 of the U.S. Copyright Act, but it is actually a case-based doctrine that existed in the common law long before Congress revised the present copyright law. The copyright statute does not define the term “fair use” or provide definitive rules for its application. Section 107 was intended, according to a Congressional report at the time, merely to “restate the preexisting judicial doctrine of fair use, not to change, narrow or enlarge it in any way.” Section 107 starts with a statement of purpose, and then lists four factors to be considered by the courts. The statute, however, does not explain how to weigh the purpose and the four factors to decide whether any given use of copyrighted material is fair or infringing.

The purposes for which it may be fair to use a copyrighted work include “criticism, comment, news reporting, teaching, scholarship, or research.” This list of purposes is not exhaustive but illustrates some examples of fair use. In order for a use to be fair, the general rule is that it must result in (1) a public benefit or (b) an increase in knowledge beyond the contribution of the original work. When viewed in light of the statute’s stated purpose, a use is not fair, for example, simply because it is a single or small infringement, or a private noncommercial use.

Factor 1 – Purpose and Character of the Use
The first factor requires you to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” In keeping with the goal of social benefit resulting from the unauthorized use of copyrighted material, the courts have been less likely to rule that commercial uses are fair. Despite this, the courts have recognized that virtually all publications are run for profit, and that most uses will exist on a continuum of commercial/nonprofit uses. At the commercial end of the spectrum, the court in the case of Amana Refrigeration, Inc. v Consumers Union of United States, Inc. (431 F Supp 324), said that quoting a portion of an article published in Consumer Reports is not a fair use when used to promote sales of products- it is mainly a commercial use. At the opposite extreme is a purely nonprofit use such as education. If you intend to use copyrighted material, therefore, you must assess the commercial motive and purpose of the work.

Factor 2 - Nature of the Work
The second factor is “the nature of the copyrighted work.” It is more likely fair use to quote factual works, news reports, and biographical facts than a work of fiction. In part, this distinction embodies First Amendment considerations and more broadly the public interest in dissemination of important facts. A dramatic illustration of the weight of the public interest in information is found in the case of Time Inc. v. Bernard Geis Ass. which dealt with the unauthorized publication of still-frames from the Zapruder motion pictures which depicted the Kennedy assassination. The exclusive rights to the Zapruder tapes belonged to Life Magazine Inc., which had purchased them from Abraham Zapruder for $150,000. Several years later, the defendant Thompson approached Life for permission to use frames from the film for a book he was writing about the assassination. When Life declined his offer, Thompson used his access to Life’s archives to secure photographs of the desired frames that he reproduced in his own book. Life sued for copyright infringement and Thompson asserted the fair use defense. Even where Thompson’s behavior in obtaining the images was egregious and the infringement was clear, the court held that the public’s interest in the dissemination of information about Kennedy’s assassination outweighed Life’s proprietary interest in the images.

Factor 3 -- Amount Infringed
The third factor, is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Although courts will sometimes point out that an infringing use constituted a certain percent of the entire work, there is no magic number. Both the quality and quantity of the portions used are at issue. One illustrative case involves a videotape of the Reginald Denny beating shot by the Los Angeles News Service from one of its helicopters. The news service licensed several television stations to use the footage but denied permission to KCAL. KCAL, however, aired a purloined version of the video during its coverage of the riot and later argued that its airing constituted fair use because the portion it showed was a relatively small part of the entire video. The court rejected this argument because the news station had aired the most valuable segment of the video and held KCAL’s limited use to be infringing.

Factor 4 -- Market Value
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” A use is unfair when it diminishes the marketability of the original by serving as a substitute. A good illustration of fourth factor analysis is with abstracts of longer works. You have to consider how and why the abstracting is done. In a bibliographic abstract, for example, little of the original work is used and the use is likely to be fair. A synopsis, on the other hand, is likely to contain more material from the original, and you need to take care. There is a higher likelihood that the synopsis will destroy the market for the original work which means that the use is less likely to be fair.

Fair Use Analysis
Fair use is a flexible and uncertain doctrine about which there are myriad myths and misunderstandings. Avoid making quick assumptions about fair use and be highly skeptical about online information about fair use. Whether or not a particular infringement can be excused as fair use depends heavily on the facts of each case. In each case, you must consider the underlying purpose of the fair use provisions of the Copyright Act and a balancing of the four factors cited in the statute, as well as the case law interpreting each factor.  Read More 
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What constitutes a revision?

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: My editor recently approached me about a doing a revision of a trade book I wrote for her several years ago. But when I found out that the “revision” involved nearly doubling the size of the book and substantially changing the tone, I declined. Now the editor has hired another writer to do the “revision.” The new writer is going to share the copyright with me, get a substantial advance and then get half of my royalties when it earns out. What can I do?

A: Your question raises several issues that revolve around the revision clause of your contract. You should look at that clause to determine whether your editor’s “revision” and the deal with the revising writer is consistent with your publishing contract. Unfortunately, a broad revision clause is an invitation for the publisher to select to a collaborator for you who will share your credit, your copyright and your royalties.

The revision clause will dictate what amount of work may qualify as a revision, when the revision can take place and how the process will be handled. If revision is undefined in your contract, your editor will have some latitude in arguing that her plan is a revision. Ideally, however, your revision clause will include a definition of revision that caps the amount of new matter at no more than 25%. You should address this point when you negotiate the any future contract. If your editor is suggesting changes outside the scope of a permissible “revision” in your contract, you should bring this to her attention. If on the other hand, you have a broadly defined revision clause, then a major overhaul of your book is probably within their rights.

Another issue is copyright ownership of the newly-added material. The ownership of material added by the revision is less likely to become an issue if the amount of material added is small (i.e. a true revision). The issue becomes more complicated when a contract has an overly broad revision clause that permits a publisher to double the size of the work. But again, you must start with the contract - new material added to the book by a revising writer will either belong to the publisher (if the revision is a work made for hire/assignment) or the reviser (no work made for hire/assignment).

Your question also raises the issue of authorship credit. Some revision clauses are silent on the issue, while others give control to either the publisher or the author. Obviously, an author would want the contractual right to sole credit for his work, even if another author is hired to do a revision. In addition, look for a provision that permits you to withdraw your name if you don’t like the book.

The final issue is how you and the revising author will be paid. The revision clause will provide (some more clearly than others) how the payment will be made to a person hired to revise the work in the event that you decline to do so. Some contracts provide for sharing of royalties (on a pro rata basis or by a simple split). Others provide that the publisher will deduct the “actual cost of preparing the revision” from the royalties due to the author. In the latter case, the revising writer is paid a simple fee that will probably have to be earned out.

After looking at your contract, you’ll find that either your editor’s plan is within the contract or it’s not. If it’s not, or the clause is ambiguous on any the substantial issues, you should contact your editor, your agent, or your attorney to attempt to resolve the matter. If nothing else, be prepared to address these issues in your next negotiation.  Read More 
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Where do you get these questions? Do you make them up? It seems like you are biased.

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: Where do you get these questions? Do you make them up? It seems like you are biased.

A: These questions come from many sources. Some have been asked at writers conferences or classes where I have presented. Many have been updated from a column I wrote for many years in the newsletter of the American Society of Journalists and Authors. A few have reached me via Twitter. And some are composites of common questions that come up often. I guess you could say that those composite questions are “made up” in the sense that they were not directed to me by a single individual. But all are definitely questions that I have been asked. Most questions have come from writers, but some have come from those who disagree with my advice.

When I decided to begin blogging and tweeting a few months ago I decided to use this Q and A format as a way to address common legal issues faced by writers, authors, freelancers and other “content creators” i(in the parlance of today). Law is a second career for me after many years as a journalist, freelance writer, book author, and writing instructor. I went to law school with the express intention of learning how to represent my fellow writers and that is where my law practice is focused. And yes, I freely admit to a pro-author bias. I am a staunch supporter of authors’ rights and firmly against copyright piracy. I definitely believe that copyright law, although not perfect, remains relevant and important today.

I cannot answer questions personally via email. If you have a question for me, the best way to ask it is in a comment below. (Comments are moderated and I don’t encourage general discussion.) As I become a more experienced blogger, I will try to set up a contact area on this website so you can submit questions directly. In the meantime, I have a backlog of questions to answer. Thanks for asking.  Read More 
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