Legal issues for authors: from copyright to contracts

On Saturday, I attended a brief workshop on legal issues for writers, sponsored by CityLit and the Maryland Volunteer Lawyers for the Arts (MDVLA). The speakers were Cynthia Sanders, president of MDVLA and agent/attorney Laura Strachan.

Here are some of the highlights of the informative presentation/discussion:

• If you use copyrighted material in your work, you need permission or you have to pay licensing fees. This is particularly important if you’re doing nonfiction, and you want to use letters from people. For any kinds of work, fiction or nonfiction, song lyrics and excerpts from other works of fiction require you to get permission. Strachan noted that most major book publishers have a “Permissions” department, and it just takes finding them to request permission to excerpt their work in your work. For smaller publishers that may not have a “permissions” department, be persistent. You may have to call a few people. Sanders notes that some people will “say no just because don’t want to have to hire a lawyer to figure it out.” For song lyrics, see the next bullet point. Letters from someone to you (which might be used in a memoir) will require permission from the letter writer, who holds the copyright.
• Song lyrics are a pain in the butt. Clearly, I’m paraphrasing here, but song lyrics are copyrighted works, and the musicians who wrote them tend to want to get paid if you use them. Both Sanders and Strachan agreed it’s often hard to find who the rights holders are (artist, a publishing company, record label) and expensive to get them. So, the simplest advice is to not use them. It’s generally OK to use an occasional song title in the main text of your books (example: in the middle of a paragraph, you write: “Jane’s favorite album was the Beatles’ Abbey Road”). However, you could get into copyright issues if you try to use song titles as the title of your book or as headers or chapter titles.  Then, it’s as if you’re trading on the song’s good name to support your work.
• Fair use can be complicated. There is the doctrine of fair use, that allows you to use small portions of copyrighted material without needing permission of the owner or to pay a licensing fee. This is done for the benefit of public discourse and is strongest when you’re using it in noncommercial uses (such as teaching). For commercial uses, it can get kind of complicated.  For example, generally when you use only a small portion of the work in your piece, you might be able to argue fair use. But, that’s not true with song lyrics. With parody, you have to use enough of the work’s character and substance for people to recognize the original work and know it’s a parody. But, a parody also has to be making fun of the original work. A group that tried to use the Cat in the Hat to make fun of something other than the book the Cat in the Hat lost their parody claim. At that point, it became licensing. So, it’s tricky business. More on Fair Use is online at http://www.copyright.gov/fls/fl102.html.
• Memoir writers, you need permission. Apparently, people are entitled to a right to privacy. So, if you’re writing a memoir that exposes your exes philandering, you need to get your exes permission before publishing. ‘What-the-what?’ you say! Yes, this surprised me, too. I always think of celebrity tell-alls and the juicy gossip they unearth. But, the lawyers mentioned that celebrities have less right to privacy. Your average man on the street is entitled to some privacy and they can sue you if you violate it by airing their dirty secrets in your memoir. Strachan noted that most publishers ask you to get consent agreements from people mentioned. And some publishers require you to get something known as  E&O (errors and omissions) insurance, to insure you against lawsuits from angry people mentioned in your book. The lawyers mentioned  E&O was more common with nonfiction and film productions.
• All contracts are negotiable. “If someone has taken the time to create a contract for you, they’re willing to negotiate,” Strachan said. So, don’t feel rushed to sign on the dotted line.
• Always know what rights you’re assigning in a contract. According to the lawyers, there are all sorts of rights to your work that you could give up or assign during a contract. Some of these include first printing permission, English language rights and world rights. If you’re not careful, you could end up signing a contract that precludes you from writing a sequel to your own book. Also, they say it’s important to know when your rights revert to you. It used to be that authors got their rights back when a book went out of print, but with digital publishing, that could be never. So do know what you’re signing.
• Published work should have a registered copyright. The lawyers agreed that in traditional book publishing, if you’re sending to agents, you don’t need to register a copyright for that work. It’s likely to get changed before the final publication.  However, once your work is to the point of publication, it needs a registered copyright. If you are self publishing, you should register your copyright (file electronically and get your registration number; the certificate won’t come for months, but once you have your number you’re good to go). Any traditional publisher will take care of copyright registration prior to publishing as well. A registered copyright shifts the burden of proof to the infringer, and allows you to get statutory damages for each infringing act (statutory damages means there is a set amount of money written into law that you are entitled to if someone has violated your copyright; without statutory damages, you have to prove how much money they made off your work and get actual damages, which is quite difficult).
• Public Domain Works. I probably could have put this after permissions, but it’s late and I’m not thinking clearly (writing at 1 am, and set it to publish later today). If you want to quote from an older work–one that is public domain–you don’t need permission. Sometimes public domain works are reworked (the Wizard of Oz is public domain; The Wiz is not), so be sure you’re using the public domain work.
• Legal help is available. So, this was the coolest thing I learned from the workshop: MDVLA has lawyers available to help. They’ll review a contract, by appointment or otherwise help out low-income artists. How cool is that? Check out their website for more info.