Five Legal Issues All Writers Need To Be Aware Of

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: http://www.wipo.int/treaties/en/ip/berne/

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

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.

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. 

Jessica Meddows

Column by Jessica Meddows

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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Comments

ReneeAPickup's picture
Class Facilitator
ReneeAPickup from Southern California is reading A truckload of books August 2, 2013 - 10:42am

This is a nice little primer. Definitely a good starting point for writers scratching their heads and the complicated legal issues we bump into along the way. 

Suzy Vitello's picture
Suzy Vitello August 2, 2013 - 10:45am

Super helpful article, Jess. The waters are certainly muddy in this area. Then there's the whole image use thing. 

Just an fyi, with blogging (which has become so image-driven these days) folks might consider perusing sites like morgue file and StockXchng for retired images. 

-Suzy

Gordon Highland's picture
Gordon Highland from Kansas City is reading Secondhand Souls by Christopher Moore August 2, 2013 - 10:51am

Thanks, Jess. Writers should bookmark this.

I've used celebrity names quite a bit in my fiction. Whenever I incorporated much grey-area creative license about them, I only alluded to who they might be in a roundabout way. But for specific names, I always make sure I'm not passing judgment on them or giving them controversial actions that might be outside their real personality (putting myself in their shoes as a potential reader). And they're usually just background "set dressing" anyway.

That ScarJo situation, though, that was just ridiculous in my opinion. Saying that one person resembles a public figure in the collective conscious is just a descriptive shortcut. Now, if you said something like "She was the most hideous beast ever to grace a magazine cover, you know, like ScarJo," then yikes. 

Dino Parenti's picture
Dino Parenti from Los Angeles is reading Everything He Gets His Hands On August 2, 2013 - 11:06am

Definately bookmarking this. These are all good reminders. Good one, Jess. 

jyh's picture
jyh from VA is reading whatever he feels like August 2, 2013 - 11:42am

MorgueFile looks good. Thanks for the link, Suzy.

                           [free picture]

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce August 2, 2013 - 12:24pm

Thanks, guys. I think it always comes down to asking yourself how much risk you want to take, and just doing a basic risk assessment.

@Suzy -- thanks! Morgue File looks really cool, I've bookmarked that in Chrome.

@Gordon -- Oh, I thought the same. It sounded kinda complimentary, but I guess stars see themselves and their names as branding, and if they don't like how someone else is portraying them, they have the moola to get legal on their asses.

 

 

Scott MacDonald's picture
Scott MacDonald from UK is reading Perfidia August 2, 2013 - 1:13pm

Thanks Jess. Excellent article and has certainly made me go back and re-read things I've written.  It's difficult to write fiction in a contemporary setting without feeling the need to reference the culture of the period - music, films, books, bands etc. I'll certainly be exercising a bit more caution over references, however complimentary the intention is.

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce August 2, 2013 - 1:21pm

@Scott -- thanks dude!

I think a good way to get around that is by referencing a band or book, but not necessarily a specific part of a song or novel. So... forgive my lame attempt at writing here, but it should give you an idea: "The girl sat in her dark room, listening to 30 Seconds From Mars all day while crying about the guy in her class who looked like that vampire from Twilight." So you're still getting the idea, but not infringing anything by merely referencing these things.

Louis Roux's picture
Louis Roux from Johannesburg is reading Dusklands - J.M. Coetzee August 2, 2013 - 2:22pm

so what are the rules if you mention a brand in a very offhand way, like: "Daniel got himself a Coke and went back to the office to blah blah..."?

voodoo_em's picture
voodoo_em from England is reading The Fever by Megan Abbott August 3, 2013 - 2:33am

Great article Jess. Definitely got me thinking about stuff I've written :)

Peter Cawdron's picture
Peter Cawdron August 3, 2013 - 3:11pm

When it comes to song lyrics, is there an acceptable amount of fair use? Or are there circumstances where you can use portions? As an example, I had a main character sing the song "Viva Las Vegas" (written in 1963 50 years ago), but only the first verse/chorus. The character gets EVERY line wrong (to avoid any deliberate infringement), and the other characters point this out (so the reader also realizes this). Have I done enough to avoid infringing on copyright? And why is it sections of books can be quoted but not sections of songs? Surely, the use of lyrics in a book reinforces a song's popularity and helps subsequent sales. It doesn't take royalty revenue from the artist.

 

Gordon Highland's picture
Gordon Highland from Kansas City is reading Secondhand Souls by Christopher Moore August 3, 2013 - 4:13pm

Surely, the use of lyrics in a book reinforces a song's popularity and helps subsequent sales.

I was with you until that part, which is not necessarily true. Just like how I might not like one of my own songs used to score a documentary about Hitler, or for it to be playing on a radio in a scene when one of the characters complains about how awful it is. Producers have to pay a mechanical license to synchronize that music to another medium. Both of those examples ("extradiegetic" and "diegetic" usage, respectively) could be applied to the printed word as well. The context determines whether it's flattering or not, but it's still up to the music publisher to grant license. Also important to make the distinction between "fair use" applied to review/satire/education, etc. as opposed to fiction, where you're co-opting someone else's work to create a new product of your own.

Jeremy Philip Strain's picture
Jeremy Philip Strain August 3, 2013 - 11:14pm

>respecting other people

lolno

Bradley Sands's picture
Bradley Sands from Boston is reading Greil Marcus's The History of Rock 'N' Roll in Ten Songs August 5, 2013 - 8:09am

Scarlett Johansen probably just sued because the book was a bestseller, so she wanted a payday. Tao Lin's novel Richard Yates uses the names Dakota Fanning and Haley Joel Osment for the main characters, even though they don't otherwise resemble them in the least and it's pretty obvious the names are used as a replacement for the author's name (who is the protagonist) and a teenage girl who he was in a relationship with. I also have no idea what the book has to do with Richard Yates, if anything. The book is popular, but not a bestseller.

A great book that goes crazy with celebrity characters is Mike Kleine's Mastadon Farm.

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce August 6, 2013 - 8:59am

@Louis -- That's fairly reasonably and innocuous. Brands aren't going to take issue with you using their name in an every day manner (depends on what you want to do with the bottle of coke, I'm guessing!). And I heard somewhere that Coke, in some American states, is synonymous with pop/soda/soft drink, is that right?

@Peter & Gordon -- Peter, I can't specifically answer your question on whether you personally have avoided breaching copyright in your novel as you're not my client (see the last sentence in this column; for specific questions, you need to seek out an attorney), but I can speak generally on the legal isues in this matter:

Legislators in every jurisdiction seem to almost enjoy being obtuse when it comes to telling people how much they can use under fair use or fair dealing doctrines. I've heard people in Australia say "You can copy 10% of a book", or the other day I heard a Canadian editor say "You can quote 500 words from another text". It would be so easy for everyone if these were true, but both are incorrect -- no jurisdiction tells you a set amount and each one is at pains to emphasis that when you're looking at fair use or fair dealing, you need to look at the quality of what you're using over the quantity. So fair use still applies to lyrics but it so one of the larger minefields. I would say it is far riskier than quoting text and due to this publishers take a very cautious approach to lyrics. Where it's a gray area, I'd always suggest seeking permission. But like I've mentioned, it's up to everyone to choose the level of risk they want to entertain with these things. What happens if you do use lyrics and they find out? Some bands may be totally cool with it, and like you mentioned, helps their brand and popularity. Another band may not like it for personal or ethical issues (for example, say I'm quoting Creed's lyrics in a book about Satanism!). Best case, you're going to get them asking you to purchase a license to use the lyrics, worse case, they're going to ask you to take the book off the market. 

As Gordon mentioned and the column notes, parodies and satire are exemptions in several jurisdictions. This specific exemption is legally complex, and yes, both parodies and satirical pieces have been successfully sued. In the U.S. specifically, the courts look at these cases in light of whether they meet the four factors to determine fair use. 

Monica's picture
Monica August 18, 2013 - 10:14am

Hi Jessica,
The protagonist and the villain in my manuscript happen to be fans of the same indie band. The band I reference is real, but not mainstream and most people do not know who they are. The villain lives a double life and uses one of the band member’s names as his pseudonym. It’s because the protagonist knows that name that she is later able to discover his identity. I am in no way inferring that the actual band member has any knowledge of what is happening. No lyrics are referenced, only one song title. Do you think this is okay?


 

clayserenbetz's picture
clayserenbetz February 18, 2016 - 12:34am

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.