The time has finally arrived. The culminating moment every author dreams of: That day when you hit publish and present your book to the world for the first time. Countless hours and energy have gone into the creation, development, and polishing of the most important creation of your life. Months, perhaps years, of frustrations and opposing emotions collide the instant the submission confirmation flashes across the screen. At long last, your book is published. But have you done everything necessary to ensure you are legally protected? Chances are, no. Every creative thinking of presenting their work to the world should have a rudimentary understanding of copyright laws, fair use, and the slew of side angles with the ability to present issues for both author and publisher.
An estimated 1 million books are published each year, in large part due to the rise of digital publishing. Amazon, once touted as the world’s largest bookstore, boasts a catalog of over 10 million titles for sale on their site. Anyone with a computer now has the ability to publish their books—forgoing the once stalwart gatekeepers in New York City. The Big Five publishers once maintained rigid quality control over the book industry. This is not to suggest they only selected the very best books each year, but rather were meticulous when it came to editing, cover design, and presentation of the final product. And covering legal matters.
The importance of quality control extended to every facet of the industry. Each major publisher had (and still has) legal teams in place for any eventuality. Writing a book may be easy enough, but doing so flawlessly and in a manner that will not return to haunt the author can complicate things. Myriad potential legal issues can arise during publication, and the major houses are able to prevent them.
Now that publishing has changed, the gatekeepers are relegated to the sidelines by the ability to self-publish. Authors are left on their own. Digitization may have permanently changed the world, but not every change has been easy or done with the best of intentions. By publishing your own work, you take full control of the outcome while being left without the support structure necessary to become successful.
The sad fact today is that most self-published authors and independent publishers fail to understand the laws that are put in place to protect them. The internet has made life easier by every measure, but it has also given rise to numerous issues—foremost being illegal copies of books being distributed to those unwilling to pay. Piracy and illegally reselling books may not be a new trend; decades ago, paperbacks once had the disclaimer that books could not be sold without the covers, but it is one that continues to grow at an alarming rate.
Understanding Copyright Law
The biggest mistake self-published authors make is they often do not view their books as a business. In truth, every task in the process requires business-minded aspects if any measure of quantifiable success can be measured. Professional covers need to be created. Manuscripts must be edited. Every book needs quality marketing starting before publication. Writing is a business, and any business worthy of the name needs to know what laws protect them and where they might go awry.
Copyright law and intellectual property laws were intended to promote creativity while protecting (to extent) the creative’s unique works. Without these laws, there would be no financial gain for any creative, potentially negating the desire to produce content. This is not to suggest the laws are easy to decipher. Nuance is necessary when it comes to understanding how a court ruled on this topic or that, especially when it comes to fair use.
There are numerous legal cases within the last few decades revolving around fair use. Most notably was the protestation of multiple musicians during the 2016 presidential election where the artists demanded the Trump campaign stop using their songs. A photographer lost a case in March 2019 when she tried to prevent one political party from using her images for their means, citing copyright infringement. A federal judge ruled her work fell under the fair use arena and the images could be used as seen fit. This was not the outcome the photographer wanted, because the ruling represented a loss of control over her creation.
The issues of copyright infringement and intellectual property law are becoming more prevalent in the publishing industry as self-published authors and independent publishers continue to grow in numbers. The risk of illegally using portions of another’s work or images without consent are on the rise. This can be either a character’s name or something less insidious.
Think about how many books you have read where the character recites lines from a popular song. Without express consent from the song’s creator, this is illegal. Regardless that there was no ill intent in the act, the author more than likely did not ask for permission—and pay a royalty fee—from the musician. Using band names is fine, as is a song title, but that is where the line ends unless you have paid for the right to use the lyrics.
The same is applicable to book cover design. Numerous websites exist where premade book covers can be purchased, but a closer look shows a great many of these covers contain the same central image with a slightly different background. At what point does this constitute copyright infringement? Additionally, some bigger-name sites like Google and Amazon now offer portions of books free through their various platforms, circumventing the rights of the author and publisher for royalties.
Legal ramifications of the latter are discussed in depth with Authors Guild v. Google. In late 2015, several authors sued Google for illegally giving away parts of their books online. The court ultimately ruled in Google’s favor, however, due to several mitigating factors. The most prominent of these was that Google not provide “significant market substitute for the protected aspects of the originals, and defendant’s commercial nature and profit motivation did not justify denial of fair use.” The court also linked Google’s case to that of public libraries and their ability to lend books to readers free of charge.
Understanding this, the real question is: What rights do you have as an author or small publisher?
Copyright Pertaining to Authors/Publishers
Copyright is considered the “exclusive legal right protecting intellectual creations from unauthorized use.” Some variant of this law has been in use since the 15th century, but it was not until the 1976 Copyright Act in the United States that a stringent guideline of what falls under copyright protection was established. This act was further amended in 1998 after it became evident the internet and digital rights were about to become major factors in modern life.
Both the original 1976 act and the amended digital one lay out the case for “original works of authorship”—with the expanded definition of authorship to include composers, artists, authors, and others. Central to the issue is the understanding of the term literary works. As defined, literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
It is important to note that all works—published and unpublished—are protected under the 1976 act. Many authors fail to understand that their works are protected before being published. There are, however, limitations built into the law. Under the first-sale doctrine, authors lose the right to regulate what happens to their books after a sale. This gray area is where websites pop up allowing users to download free copies of books, thus removing the author/publisher from the royalty equation.
Current copyright law says that works created after January 1, 1978, are protected for 70 years after the author dies. Authors may choose to sell or transfer their copyright because it is considered a property right. Most common types of this are when an author or publisher sells the rights to a movie studio. The author does not lose all rights to their work and receives a hefty lump sum payment for the right to have their book turned in to a motion picture.
While it is clear all original written or created works are protected under copyright law, the lines begin to blur when images or characters are placed in public domain. Regardless, authors have the inherent responsibility to understand the current law structure when they venture forth in the publishing world.
Public Domain and Fair Use
We’ve all seen examples, whether in a book, television show, or movie, where other fictional works are being referenced. In fact, the most popular works are constantly being spoken of on an almost daily basis. But are the writers of those shows following the law or breaking it? This is where public domain comes into play. It is a safe assumption that many of you reading this now have either thought about using popular culture references in your own work or have already done so. Knowing what you can and cannot use will not only strengthen your skill set but potentially help you avoid getting into legal trouble down the road.
Public domain is one of the oldest concepts in use today. The commonly accepted definition of public domain is works that are no longer protected through copyright, as well as material that was never protected in the first place. Public domain has changed the copyright landscape, which bears heavy implications on current (and restricted) literary works. Prior to 1896, public domain was referred to as public property.
Matters continue to muddy when author incentive and public interest blur together. In 2000, a website created by Harry Potter fan Steven Vander Ark was initially praised by author J.K. Rowling, going so far as to “fact-check” her own work. It was not until years later the website creator tried to publish a book based on the site that Rowling sued. Court rulings decided that too much of the website’s words were either direct quotes or similarly close to be considered original.
Fair use comes into play most often when one party is accused of copyright infringement. Fair use is where the courts determines whether copyrighted materials are being used without permission. The biggest case in the last 10 years was between the late Marvin Gaye’s estate and the creators of the song “Blurred Lines.”
Fair use is hard to define since there are multiple gray areas involved. The 1976 act laid out four distinct criteria concerning fair use:
- Purpose and character of use: Several items are considered under this aspect. Foremost is whether the intended use is for commercial (public consumption) or nonprofit purposes. If the original content is changed or has been given new meaning, chances are the law will side with the new creator in determining fair use. Parodies often fall into this category.
- The nature of copyrighted work: One advantage authors have when it comes to copyright is that the legal system will often fall on the side of the creative. Using fact-based materials—such as military units/ battles or other historic events—is considered fair use, for the most part. Many fiction authors who write historical or military fiction should be protected under this.
- The amount and substantiality of the portion use: This is where matters get muddy and fall deep into the gray area. Plenty of books have either drawn inspiration from previous books or contain dialogue pertaining to those books. For instance, characters might be discussing the events of a popular movie and reveal the ending. While unintentional, that particular author has infringed upon the previous work, as endings are considered integral to the story.
- The effect on the plaintiff’s market: Put plainly, the more of another work that is “copied” or used in another setting the more the original author will lose potential readers. No one wants to read a book when the ending is spoiled in a different book. The worst offenders for authors are those websites offering free PDFs of published books without the author or publisher’s express consent.
Each of these areas are important in determining if an author’s work is safe under copyright laws and warrant a closer look. When in doubt, reach out to an attorney who can clarify any gray areas and prevent trouble before it starts.
Most independent authors and small publishers generally do not need to concern themselves with this law, as they are intent on creating a fresh or unique work, but there are instances where characters are taken from either real life or existing books. British author Mark Hodder wrote a series of books revolving around major characters of Victorian England, though changing them to suit his purposes. Not only were these books successful in the market at that time, they avoided any legal repercussions because the characters were changed so much from their historical counterparts that there was no confusion between them.
A recent trend in independent book covers had an inverted Trade Federation Starship from “Star Wars: The Phantom Menace.” The image “creators” did not even bother removing the Trade Federation’s insignia or attempt to reshape the vehicle before selling it to unsuspecting authors eager to get their books published. Several covers now have a trademarked image owned by Disney and are ripe for legal action being taken against them.
Crafting an original story is just as important but harder to accomplish depending on the genre. In the mid-1980s, fantasy author Dennis L. McKiernan wrote his (now) praised Iron Tower Trilogy. It was remarked at the time that this story was directly borrowing from the classic Lord of the Rings. Indeed, similarities between both series are remarkable while the tales twisted in different directions. There were lost dwarf caverns, a ringed city built into a mountain, and a dark lord from centuries past responsible for all the bad events in both books. Enough that fans were left scratching their heads at the boldness of McKiernan for publishing his work.
What people did not know at the time was McKiernan had originally been contracted to write the sequel to the Lord of the Rings, thus the reason for so many of his settings and character races being similar if not exact to the older Tolkien work. Having the backing and legal assets from his publisher, McKiernan was able to avoid any legal entanglements with the Tolkien estate. Time has seen him go on to become one of the most highly touted names in fantasy at the end of the last century.
So far, we have examined copyright, public use, and fair domain. The letter of the law is fairly clear, and the more an author knows, the better protected they will be when they hit that publish button and realize their dreams.
Protecting Your Rights
Understanding the law is one thing, being proactive in protecting your work is another matter. Now that we have discussed what the law is, the time has come to learn what authors can do to protect themselves. The question every author should be asking is what can I do to ensure my work is clean and will not result in my being sued? At the top of the list is filing for copyright at copyright.gov. While this step is not exactly necessary, it will provide the ammunition needed to put the law squarely behind and reduce the amount of potential gray areas.
A second, easier option is to do a quick search on Amazon, Google, or any other major bookseller to ensure your cover art is original and the title of your book has not already been used. Plenty of websites exist offering generic covers with the promise of “once it is sold, it is taken off the site.” Be wary with these, for though that particular cover sequence is sold, the main images can and often are used on numerous other covers. The latter is trickier. Many books share the same title while having vastly different content. Titles are not copyrighted but can be (and often are) trademarked to prevent others from using them.
Trademarks are another matter altogether. It is important to understand the delineation in using the same title. Most of the issue comes down to specificity. Harry Potter has already been proven a highly successful brand and is trademarked. However, if you do a search for books titled Empire of Bones, you will find several. Each book is different and provides entirely different reading experiences, thus avoiding copyright issues.
There are also several plagiarism trackers available online. Plagiarism can range from a brief sentence to entire sections of another’s work. When in doubt, always take the time to verify data and ensure your book does not cross into territory that has already been established and protected. The bottom line is the only limit to creating a standout novel is how far your imagination can go. Enough tools are in place to ensure you are on the right track and well within the boundary of copyright and fair use doctrine. By taking the time to understand the laws and how they apply to you, you will end up saving time and potential headaches down the road.
If there is ever any doubt as to what is protected or falls under the fair use doctrine, the author’s best bet is to obtain an attorney. This will ensure your book is clear of legal issues and allow you to move on to the next and most important part of publishing: finding your target audience and getting the word out there. Ten million books is a mighty ocean to swim across.
Christian W. Freed was born in Buffalo, New York, more years ago than he would like to remember. After spending more than 20 years in the active duty US Army, he has turned his talents to writing. Since retiring, he has gone on to publish over 20 military fantasy and science fiction novels, as well as his memoirs from his time in Iraq and Afghanistan, a children’s book, and a pair of how-to books focused on indie authors and the decision-making process for writing a book and what happens after it is published. You can find him on Facebook at facebook.com/ChristianFreed or Twitter @christianwfreed.