A Guide To Avoiding Common Publishing Legal Issues

Every type of business has its own story that reflects its founders' visions and personalities, historical and geographical factors, market challenges, etc. There are, however, common opportunities and challenges among companies within a particular field. A publishing company may be particularly affected by this, since certain areas of the law only apply to them, such as copyright and defamation.
 

Here are some tips on how to deal with common concerns facing book publishers:

 

Common Legal Issues Facing Publishers

In addition to copyright and defamation laws, there are publishing laws that apply to publishing ventures, often with their own twist. Here is a list of legal topics and challenges publishers face on a regular basis.
 

Copyright Challenges

Copyrighted content is the most valuable asset of most book publishers. After all, copyright law is what gives publishers the ability to control the content, which, in turn, enables them to make money by selling books and licensing subsidiary rights (e.g., into drama, movie rights, television, electronic rights, and multimedia), and merchandising (e.g., calendars, toys, and lunchboxes). As a result, understanding, exploiting, and avoiding infringing copyright is a key legal challenge for publishers. The following are the most significant copyright issues for publishers.

1. Author Grants: In order to publish a book, the rights of the authors must be properly obtained. There are two ways to accomplish this. The majority of trade publishers are specifically granted exclusive licenses over the author's copyrights (or a broad assortment of them). On the other hand, most academic and professional publishers prefer to be assigned these rights, thereby obtaining a complete ownership interest. Despite these differences, virtually all publishers recognize the right of authors to recuperate their copyrights when their books go out of print and the publisher ceases to exploit them. Furthermore, some publishers allow their authors to keep certain subsidiary rights, including film, television, drama, and electronic.

2. Copyright Procedures: The second step for publishers is to protect their copyrights. This means using proper copyright notices on published works (including the international copyright symbol ©, date of publication, and name of the copyright owner) and, at least for significant works, copyright registration in the name of the owner. The copyright notices notify the world that the work is copyrighted, and deny infringers the opportunity to argue that they are innocent of the infringement. It provides other benefits, including the right to recover statutory damages and attorney fees for infringements occurring after registration (or after publication if registered within three months of publication).

3. Copyright Licenses: A third related measure is to grant licenses to third parties with precision and caution. In addition to ensuring it owns or controls the rights it licenses, the publisher must ensure that its licensing agreements are clearly written and drafted narrowly so that no additional rights are granted.

4. Protecting Against Infringement: In addition to implementing appropriate procedures and training personnel, a fourth copyright measure is to prevent infringement of others' rights. This includes both (i) “due diligence” inquiries of authors and, where appropriate, independent investigation of competing works and identified background sources, particularly where the manuscript contains substantial references or quotes from third-party materials, or where the topic is highly popular; and (ii) comprehensive and protective warranties and representations from authors that confirm there are no problems.

Despite author reluctance to warrant that their works do not violate third-party rights, or at being required to indemnify publishers for breach, publishers need such "tough love" provisions in order to force authors to take these issues seriously. Authors, once they realize that they are responsible for infringements (as well as defamation, privacy violations, and similar problems), are more willing to cooperate with publishers in identifying potential issues and assisting in their resolution. The publishers, in particular, should ensure that authors have not incorporated copyrighted materials into their works without permission or unless the material borrowed is fair use. Fair use is a challenge for all publishers but has particular relevance for those who produce (i) parodies, commentary, and criticism; or (ii) books whose chapters begin with quotations or song lyrics.

5. Internet and Electronic Uses: The topic of copyrights in publishing cannot be discussed without mentioning the problems created by new electronic distribution and reproduction methods. The law has become more predictable over the last few years, largely resulting from some noteworthy cases, particularly The New York Times v. Tasini, 533 U.S. 483 (2001) (holding that reuse of freelancers’ articles in text-only electronic databases is not authorized by the Copyright Act and therefore constitutes copyright infringement) and Random House v. Rosetta Books, 150 F. Supp.2d 613 (S.D.N.Y. 2001) (holding that the right to publish a work “in book form” does not convey the right to publish an electronic book). Despite this, there are still many unexplored territories. An important piece of advice on this topic is that a publisher cannot assume it has the right to publish books online, in e-book format, as multimedia works, or in any other electronic format unless the contract is clear and specific. Have your copyright lawyer review your contract before you use a work online or in any other electronic medium.
 

Publishing Contract Challenges

Contracts and licensing law pose the second set of legal obstacles. We have already discussed several of them, but let's look at them together here:

1. Publishing Contracts: An author's content or book contract must be clearly spelled out, comprehensive, and reasonable, as indicated above, the publisher's number-one priority.

Regarding clarity and comprehensiveness, contracts with authors must clearly and comprehensively delineate the rights meant to be taken; grant the publisher the right to approve the final manuscript, edit the work, and select appropriate titles and covers (often in consultation with the author); establish submission deadlines; specify the author's responsibilities and warranties; allow periodic revisions and updates to be made by the publisher; specify the publisher's editorial and publication responsibilities (reprint rights, which means republishing the book within twelve to eighteen months of acceptance); and include appropriate option and non-competition requirements.

Regarding reasonableness: If you treat authors fairly, it will not only enhance your relationship with them but also reduce the likelihood of your contract being overturned in court if challenged.

Fairness often boils down to the rights acquired from authors. Especially when it comes to motion picture and television rights, savvy authors and their representatives, including their copyright lawyers and agents, can get frustrated when publishers demand more rights than they can effectively exploit. Consider, therefore, whether it is fair to demand these rights from the author if you do not intend to market them or have the ability to do so. Otherwise, the publisher receives a small share of the revenues the author generates.

2. Licensing Agreements: Subsidiary rights can generate substantial revenues for publishers. It is also possible for a publisher to shoot himself in the foot if licensing is done incorrectly. The publisher and their copyright lawyer should develop contracts with clear and precise language that outlines the rights granted and prevents the licensee from abusing those rights or worse, creating a competitor through inept drafting.

3. Distributor/Reseller Arrangements: Most publishers consider their channels of distribution, they must be aware of the implications of exclusive agreements and ensure they do not grant exclusives unless the license has the capability of being terminated at any time at short notice or requires minimum revenue and sales levels. As well as providing discounts to distributors, publishers should also consider the relationship between author's royalties that they pay. Then you may have to reduce royalty rates or percentages payable to your authors if you offer huge discounts to distributors or you could dramatically decrease your own profits.
 

Defamation, Privacy, and Publicity Issues

Publishers are also facing challenges since privacy laws, publicity laws, and libel laws are changing. The publisher can be sued for publishing false and defamatory statements, or, at times, even just embarrassing facts about people; and in today's highly proprietary and litigious age, more and more references to individuals invite defamation, breach of privacy, or invasion of publicity claims.

Nonfiction publishers are primarily affected by these issues. Sometimes, they reach out and reach publishers of fiction that mimic reality, such as Romans a clef.

1. Defamation Challenges: In general, "defamation" involves the false statement of fact that holds the person up to ridicule or scorn or destroying a person's reputation, though, in certain jurisdictions, it may also apply to deceased individuals and occasionally to corporations. In order to avoid problems like these, publishers should require authors to take such issues seriously in their publishing contracts. Lawyers should often review the work as part of their due diligence process. Particularly when reporting on individuals who are not public figures, the main goal is to show the truth of the statement or at least provide reasonable grounds for believing it is.

See Also: Transactional Entertainment Attorney David Pierce Wins Motion To Dismiss "Seinfeld Defamation" Lawsuit Brought By Real-Life Kramer

2. Privacy Rights: Individuals' right to privacy is a related issue. Newspaper and magazine publishers usually face a greater challenge regarding privacy, as up-to-the-minute reporting can lead to the disclosure of highly personal facts, such as medical, financial, or other information that should not be disclosed. However, publishers of nonfiction should be wary of disclosing sensitive or embarrassing personal information. (In the United States, the rules are relatively liberal; do not divulge personal information about foreigners or Americans outside of the United States.) If any of this information is about to be published, consult your lawyers to ensure that you will not violate a criminal or civil statute.

3. Publicity Rights: This is closely related to the right of publicity. (Technically, this is a subset of the "right of privacy," which includes four rights: publicity, intrusion, privacy, and false light.) Generally, the right of publicity prevents the commercial exploitation of a person's name or likeness. As well as protecting celebrities and others whose names and appearances have real commercial value, this right also prevents the use of names or likenesses without permission.

With the above issues in mind-defamation, privacy, and publicity-ensure that your editors and other personnel are aware of potential problems with manuscripts under consideration.
 

Negligent Publication

There is a claim of negligent publication unique to books that provide instructions, directions, how-to information, self-help (especially medical), and other guidance. The number of claims that publishers are liable because of an injury other than infringement or defamation is much less common than suits for infringement or defamation.

However, some cases have been brought and sometimes won by injured readers seeking compensation from publishers, due to the First Amendment's guarantee of freedom of the press. The most famous of these cases was the Soldier of Fortune case (1992), in which the family of a man murdered by a hired assassin obtained a $4 million verdict against Soldier of Fortune magazine for publishing the advertisement that led to the assassin's hiring. Less dramatic cases include: Fodor’s Travel Publications sued, unsuccessfully, for not warning readers of the dangerous surf conditions on a Hawaiian beach; G.P. Putnam’s sued, unsuccessfully, for misidentification of a poisonous mushroom in its The Encyclopedia of Mushrooms, which caused two plaintiffs to become severely ill; and Rand McNally sued, this time successfully, for publishing a science textbook that contained an experiment that seriously injured a student.

These issues are addressed by how-to and guidebook publishers in different ways.

The author must first prove that he or she has the relevant expertise and credentials to write the book. Find out how the author came to her advice: Did she conduct her own experiments and trials? Where did she seek advice from reputable sources? Make sure you are confident in the author's ability to provide accurate advice.

As a second step, make sure your publishing contract specifies that the author is responsible for the safety and accuracy of the contents (and that errors are indemnified by the publisher). If the author, she, or you harbor any doubts, recommend that she or he recheck the riskiest advice.

The third step is to consider the possibility of serious injury or health problems resulting from incorrect or unsafe content. If so, you should conduct at least a partial check for safety and accuracy. The best defense is to take care from the beginning, whether it be negligence or defamation.

Fourth, as a matter of good practice, but especially where risks cannot be eliminated (for example, you cannot guaranty that a person beginning an exercise program described in your book will not pull a muscle or suffer a heart attack), include conspicuous warnings that inform the reader of inherent risks and disclaimers that deny your responsibility and require readers to be responsible for the results of their actions. The best defense is not just a scary warning, but really smart advice ("check with your physician before beginning this or any other exercise regimen").

Finally, find out whether there is insurance coverage for injuries or monetary damages resulting from faulty legal advice or instructions. In order to protect yourself from catastrophic losses, it is wise to shift a substantial part of the risk to a financially solvent third party (which the author is often not).

See Also: The True Meaning Of JD In The World Of Legal Publishing
 

7 Legal Issues All Writers Must Avoid

Most writers avoid legal troubles throughout their careers. However, there are many others who do not. While we tend to think of the big and the bad suits like defamation and copyright infringement, there are many types of legal trouble you can run into regarding your finances and contracts.

Here are 7 tips for protecting your career and keeping things running smoothly.
 

1. Avoid Plagiarism

You should never copy someone else's work and claim it as your own. You should never publish a manuscript you did not write, no matter what the medium. Always give credit where it is due when quoting a source or someone else's research. Make sure you also familiarize yourself with fair use standards.

Check your writing for plagiarism using ProWritingAid if you are working on a project where you could accidentally plagiarize. These services allow you to check your work against more than a billion websites, published works, and academic papers for originality. Paying for a plagiarism check pays off. Free plagiarism checkers sell your work. ProWritingAid protects your privacy.
 

2. Credit Sources

You should credit sources even if you are not using their original words. Whenever you use statistics from the local police department in writing for a local paper, give credit to the department. You are not only protected from plagiarism allegations, but also from some liability if you publish false information based on someone else's sensitive information.
 

3. Credit Anyone that Helps You (If They Want)

Do not forget your editors, proofreaders, professors, doctors, lawyers, or anyone else you contacted to help you, even if you are not copying them directly. Let a professor or a doctor read your final draft, in case you misquote or misunderstand anything. This will ensure that you have not misrepresented anything.
 

4. Avoid Defamation

Those who claim that your work has damaged their financial well-being, their relationships, their jobs, or their reputation may sue you. They only need to show that it could have caused the problem, not that it did. People often think they can protect themselves by changing their names and identifying characteristics, but if someone familiar with you or the individual can make the connection, it can still be considered defamation.
 

5. When in Doubt, Make it Fiction

It's so much more fun to write a novel anyway. Think about turning your real-life story or memoir into a work of fiction if you would like to avoid any legal issues. You have a lot more flexibility when it comes to names, places, descriptors, or whatever else might be helpful in identifying real people or events. Alternatively, a pseudonym will ensure your work cannot be traced back to you.
 

6. Copyright Your Content

The right to protect your work from being stolen and presented by another should be available to every artist. Ensure that your work is copyrighted before publishing a piece you intend to sell or make money from. Keep your work close to you and allow only those who need to see it to have a copy, such as editors, proofreaders, and publishers. A non-disclosure publishing agreement should be signed by anyone else who will see the manuscript, such as a beta-reader or a friend.
 

7. Ironclad Contracts

It is important to have good legal counsel to review your contracts in order to protect your interests. It is still a good idea to have someone review the contract if you are working with a publisher who takes care of contracts for you. It is very important to make sure that a contract is in place with all of the people who will handle and help you produce your work, whether it is ghostwriters, attorney editors, proofreaders, printers, or anyone else.

It is important for a successful writing career to protect yourself from potential legal liability. Follow these tips to stay out of trouble.
 

CONCLUSION

It is clear from the above that, in the real-world publishing process, book publishers face a host of legal problems, among which are copyrights, contracts, defamation, privacy, serial rights, worldwide rights, and publicity laws. Additionally, other legal issues arise, such as negligence (and the related concept of "incitement"), trademarks, intellectual property, and antitrust.

Ideally, the publisher, its editors, advisors, and other personnel should be familiar enough with these issues to be able to establish procedures from the outset that can minimize the occurrence of problems and promote immediate resolution when they occur. Copyright Lawyers who know these laws and who understand the business climate in which publishers operate can be extremely helpful in designing and implementing such measures, as well as in creatively resolving issues that slip through the cracks.