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Legal Issues in Self-Publishing: What Authors Need to Know

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Legai Issues in Book Publishing
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Self-publishing continues its exponential growth. More and more authors are choosing this route for presenting their work to the public, encouraged by impressive success stories, including accounts by bestselling writers who have moved over from traditional publishing to take advantage of greater profits and better control of their works.

But there is one domain that self-published authors rarely think about, which mainstream publishers have traditionally managed: legal issues.

If you self-publish, you are the publisher and thus assume all the legal responsibilities. At first this might seem frightening. But it doesn't have to be, as I discovered in my interview with Paul Rapp, an attorney who specializes in intellectual property rights in Monterey, Mass. and teaches Art & Entertainment Law and Copyright Law at Albany (N.Y.) Law School. He also discusses copyright issues in publishing on Vox Pop on Northeast Public Radio.

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Rapp says he is working increasingly with self-publishers and self-published authors. He cited the prominent legal issues that authors should pay attention to: The use of images, quotes, and other materials from copyrighted works, the use of public domain works, the amount of a published works that can be quoted, portrayals of real people in fictional works, the standards for portraying famous and non-famous persons, portrayals of real people in non-fictional works, and the importance of copyright registration.

Starr: Isn't the provision of legal services an area where traditional publishing offers an edge to authors?

Rapp: The issues don't go away whether you are publishing traditionally or self-publishing. While the legal department of a publishing house may assess the legal issues in a work and advise, or demand changes if necessary, that doesn't release the author from responsibility. Every publishing agreement that I have ever seen has an indemnification clause in which the author agrees to hold the publisher harmless if there are claims against the publisher for any infringement or violation of personal rights. That being said, most publishers vet books before they go out and have insurance policies that cover most of these lawsuits; the insurers may also vet a manuscript prior to publication. But I think this is happening less and less, leaving the author exposed. And I'm seeing a lot of agreements that, particularly for non-fiction books, require the author, rather than the publisher, to get necessary permissions and licenses to use any third party material.

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Starr: What advice do you have for self-publishing authors who have legal concerns?

Rapp: If authors have legal questions and want peace of mind they should get a legal opinion from an attorney. Because of the expansion of self-publishing there are an increasing number of lawyers who will assess legal issues in a book and tell you how to address the problems for a fairly nominal fee. For example, I just finished reading a book on branding. It took a couple of hours. Many lawyers will charge for how long it takes to read the book and prepare an "opinion of counsel" letter. Unless there is a huge systemic legal problem with the book, the letter should generally be one or two pages long. An opinion of counsel letter is a form of insurance; if an author is eventually found to have violated anyone's rights, an opinion of counsel letter can at least absolve the author of any claim of willfully violating those rights.

Starr: I have found that licensing fees are being charged that are not justified under copyright law for the use of public domain photos, artworks and other public domain works.

Rapp: Whether those demanding a fee for a public domain work believe it or not, they want you to believe they own a copyright that they don't own so they can exact a fee. Images or text in the public domain do not require permissions or licenses, period. And a mere photograph of a public domain work is itself in the public domain because there hasn't been anything significant added by the photographer to the original. And if an author receives a threatening letter about the use of a public domain work, it's because institutions know from experience that if they threaten, many people will pay up. Usually a brief letter from an attorney, or just ignoring the threat altogether if it's baldly frivolous, will be a proper response.

Starr: What about the use of quotes. Is there a limit to how many words you can quote? One editor told me that 300 words was the limit. Elsewhere I've read that it's related to the length of the work you are quoting from and the length of your book.

Rapp: There are no absolute rules like that and people always say there are. There is no fixed rule about the number of words. If the quote drives your narrative, or if you are commenting on the quote or its author, or using a quote to support an argument then it's most likely going to be a "fair use" of the quote, and therefore non-infringing. The publisher of the work you are quoting from may squawk, but it's highly unlikely that they are going to do anything about it. Some publishers have their own standards for how much an author can quote in a book they are publishing in order to somehow justify their own complaints about extensive quotes from their books in works put out by other publishers.

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The one tricky area is when people use quotes that are just window dressing. Like when an author quotes the lyrics of a song -- even just couple of lines from a song at the beginning of a chapter, as Stephen King often does. Most music publishers take the position that you need permission because this kind of use, they claim, is not driving the narrative or otherwise a fair use. And they may be right -- the fair use doctrine is horribly imprecise. I've had authors ask me what to do. In those gray area cases, I suggest that they try to get permission. Often the licensing fee is fairly minimal -- although it depends on the song and the publisher.

I recently had an author who was putting out a self-published book that had a scene in a bar where a popular song was playing on the jukebox. He quoted the lyrics that were actually mirroring what was going on in the bar. It was really funny. And I said, that's fair use and you don't need permission because it's integral to the narrative of the work. The publisher might disagree but I say go ahead and use it.

Starr: If you don't get the permission and they come after you what will they demand?

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Bernard Starr, PhD, is a psychologist and Professor Emeritus at CUNY (Brooklyn College). His latest book is "Jesus, Jews, And Anti-Semitism In Art:How Renaissance Art Erased Jesus' Jewish Identity & How Today's Artists Are Restoring (more...)

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