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Have you wondered whether your work is protected by copyright? Or whether you can write a story based on people you know? This article delves into five legal issues frequently encountered by writers.
1. Protecting Your Work: Do you need to worry about copyright?
Most of us have a general idea about copyright protection, but don’t know how the law works. Literally, it is the right to copy. It’s a legal system that gives you, the creator of a literary work:
- a) exclusive rights over your work for a limited period of time. This period is 50-120 years from publication or creation in most jurisdictions;
- b) the right to be credited for your work. No one can copy your work without your permission; and
- c) the right to control your work, like who can adapt the work and receive a financial benefit from the work.
For countries that are a party to the Berne Convention, copyright is inherent and exists as soon as you create your work. The convention did away with requiring formalities like registration and inserting the © symbol. Most countries, including Australia, Canada, the United Kingdom, and the United States, are parties to this convention. For a full listing of parties, see HERE.
But if it comes to proving ownership, a copyright notice or registration can help. Canada and the United States have official copyright registers, while Australia and the United Kingdom have unofficial service providers that hold registers. Using the copyright symbol and a notice can also act as a deterrent to people who may be thinking of copying your work (or annoy editors, depending on your market).
So what elements does a literary work require to gain copyright? The legislative nitty-gritty changes between countries, and in countries where there is no uniform copyright law, between states. But the basic concepts are similar, with literary works requiring the following two elements to be afforded copyright protection:
- a) a tangible or material form—copyright protects the expression of an idea, not ideas or information; and
- b) originality—while it seems obvious, the law usually stipulates it must be new, not copied material.
2. What Parts of other People’s Work Can We Use? Exceptions and Exemptions
Studying, blogging, reporting news, and writing reviews would be difficult without copying original work, but fair use or fair dealing exemptions exist which allow this to happen without obtaining the owner’s permission.
Generally speaking, you don’t need permission to copy anything that is less than a substantial part of copyrighted work. Fair dealing exemptions in Australian, Canada, and the United Kingdom allow us to use a substantial part of a work without the copyright owner’s consent for research and study, reviews and criticism, news reporting, and legal advice. The United States’ equivalent concept is "fair use" (fair dealing relates to corporate governance and contracts in the United States). Section 107 of the United States Copyright Law outlines situations where reproduction may be considered fair, such as criticism, comment, news reporting, teaching and research.
Each jurisdiction suggests erring on the side of caution whenever someone enquires as to what a substantial part is, and focuses on quantity over quality (which is of very little practical use). The US Copyright Office specifically states that “there is no specific number of words, lines or notes that may safely be taken without permission.”
Clear as mud, right? Be mindful that the fair dealing exemption in Australia and the United Kingdom is not as flexible as fair dealing exemptions in Canada or fair use exemptions in the United States. And Australia, Canada, and the United States recognize parody and satire as a potential exemption, but the United Kingdom doesn't specifically recognize this category and considers these cases under the “substantial part” doctrine.
While the fair use and fair dealing exemptions can be obscure and confusing, one clear exemption is the public domain exemption, where the rights have expired due to the author’s death some years ago, like Shakespeare.
3. Respecting Other People's Work: Don’t accidentally infringe copyright
What happens if your purpose falls outside those mentioned and you are desperate to use someone else’s material? You can contact the owner and purchase a license to use the part of the material you want and the owner sells you a license (almost always non-exclusive) to use the work for a certain period of time or in a certain way, and they keep the copyright. Otherwise, you could buy the work and the owner assigns the copyright to you and the law acts as if you were the creator, but this is very rare and expensive.
There are a few categories where people frequently and unintentionally infringe copyright:
- a) fan-fiction -- using characters from someone else’s original work without their consent is copyright infringement;
- b) blogging -- copying huge slabs of text without permission or linking to pirated copies of eBooks; and
- c) fiction writers using song lyrics without obtaining a license -- this can be tricky and expensive. A bill for licenses could leave you at a loss even if you get royalties.
4. Respecting Other People: Writing about famous people, famous brands, and people you know
The United States has the constitutional right to free speech, but a lot of people who use that phrase aren't aware that their constitutional right is fettered by a framework of law detailing what they can and can't say about certain societal groups, individuals and brands. Other countries don’t even have the constitutional right to free speech.
Defamation is a communication that harms the reputation of a person, business, group or government. Some jurisdictions distinguish libel and slander as separate types of defamation—slander is spoken, libel is published.
Defamation laws differ widely between countries and even individual states in countries. In most jurisdictions, the exemptions are similar, with the truth being the most common one, and concepts like fair comment, criticism and qualified privilege, which protect journalists. The truth exemption is most clear when you’re stating facts, but can get murky in fiction or opinion pieces. In some countries, pure opinion is not actionable and in others, the law does not distinguish between fact and opinion. In some places, like the Philippines, truth alone is not a defense.
Realistically, are you going to get sued? Probably not. Tom Cruise probably doesn't know that you're writing a story basing the main character on him. Neither does that asshole boss of yours. But as a lawyer, I am particularly risk adverse. Because sure, you can use famous people as the basis for characters in your stories, or write about their crazy antics on your blog, but they also have unlimited funds to sue you if they take a disliking to what you say about them. Recently, Scarlett Johansson began proceedings against writer Grégoire Delacourt and his publisher JC Lattes, after Delacourt described a character in his novel as Scarlett Johannson’s doppelgänger. And in my lawyer days, I saw normal people get themselves into mortgage level debt to sue over matters of pride. So tread with care on this one. Some famous people and brands don't mind being made fun of (think Stephen King, Stephen Hawking) and some take an opposition to it (like Tom Cruise or the Disney corporation).
If you want to see classy and entertaining ways of using real people in your fiction, I'd recommend reading Richard Thomas’ Stephen King Ate My Brain, found in his collection, Staring into The Abyss and Andy Warhol’s Dracula by Kim Newman.
5. Freelancing
If you present yourself as a professional in the field of editing or writing, you also present yourself to the liabilities that professionals face. Think about putting proper contracts in place so that if the relationship goes pear-shaped, it is very clear what each parties obligations and rights are. And the longer you freelance, the more likely it is that this will happen. From personal experience I can say that for every lovely, detailed, and promptly-paying client you have, there will also be a couple who will pretend to forget they owed you hundreds of dollars, or send you abusive emails when you can't work because of an emergency. Insurance is another issue you may want to look at; if you say you're an expert in your field, you expose yourself to the risk of being sued for negligence if something goes wrong. Also, keep track of your income and expenses so you can do your taxes properly.
Be careful with your intellectual property when you're freelancing. There are some unethical people out there, particularly on freelancing sites. I've heard plenty of horror stories about employers asking for unpaid samples of work before awarding you a job and this work being used with no payment or credit back to you. Where you can, give samples of your work that are available on the web and link to it, rather than giving word documents, and give PDFs instead of word documents.
This list is by no means exhaustive and touches on just a few of the issues that crop up for writers. What legal issues have you come across with your writing?
Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice; nor should it be taken as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require.
About the author
In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.
Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.
She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.
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