Helen Sedwick, author of Self-Publishers Legal Handbook, is guest posting here today to answer all your questions on the legal aspects of self publishing, like copyright law, setting in stories, blending the real world into our writing, etc.

Go grab a copy of her book today!

Your Legal Questions Answered

Helen Sedwick Guest Posts on KCrossWriting to answer all your legal questions about writing and self publishing.

Katie, good questions. Your readers’ questions cover the two areas that keep many writers up at night:

  • how to protect their work from being stolen and
  • how to blend the real-world into their work without risking a lawsuit.

I have to start with the caveat that readers should consider my answers as general information and not legal advice. When in doubt, they should always seek the advice of an attorney in their country and state. 

Copyright questions:

Do we really need to have our book copyrighted or is publishing enough? I get conflicting answers.

Many writers are confused about this issue.

First, I want to distinguish between copyright creation and copyright registration.

Creating a copyright is automatic. You own the copyright in an original creation as soon as it is “fixed” in tangible form, such as a hard drive or pad of paper. That’s true even if you don’t  mark it with a © or register it.  That’s the benefit of modern copyright law; it’s automatic.

Copyright registration is separate and elective. Once you create a copyrighted work, you may take the extra step of registering that copyright with the U.S. Copyright Office (assuming you created the work in the U.S.)  Online registration is $35, plus you send in two copies of the work.

Registering is not required. You still own the copyright in your work even if you do not register that copyright. But registering is a good idea, as I explain below.

If you publish a book and include a copyright notice inside, but don’t register it with the Library of Congress, what steps can you take when someone sells unauthorized copies of your work or gives them away for free?

There are some steps you may take without registering the copyright of the book and other steps that require registration.

Without registration, you can send a DMCA take-down notice if your work is posted online. Here’s a post I wrote explaining that process. Do-It-Yourself Copyright Protection. Katie says: This would have been really useful last week when I found out pirates had stolen my book. Arrrgh.

You have more options if you register the work. (It’s not too late.) In fact, you must register the copyright before you file a lawsuit. Plus, more social media sites and ISPs are requiring that the copyright of a work be registered before they will process a take-down notice.

Whatever you do, don’t wait too long. The statute of limitations for copyright infringement is three years. Recently I got a call from a writer who wanted to stop a publisher from selling her book under its own copyright notice. I asked her how long she had known about this, and she told me 11 years. Sadly, there’s little we can do after 11 years.

If you write under a pseudonym, do you use the pseudonym  on the copyright page of your book or should it be your real name? Do I register the copyright under my pseudonym or my real name?

In the U.S., you have a lot of flexibility. You may use only your pseudonym on the copyright page of your book. When you register the copyright you may use only your pseudonym if you want to maintain privacy, or you may use your real name or both. you’ll see where to fill in this information on the application for copyright registration.

Is there a way to publish a blog entry and use it as proof of date of creation so the entry can function as evidence in a claim for copyright infringement?

Your blog entry is protected by copyright automatically. Yes, you could create evidence of the date of creation by saving a screen shot and dating it, etc.

The best proof of the date of creation would be to register the blog post with the U.S. Copyright Office. If you register your posts, it’s important to know that the Copyright Office considers blog posts to be “unpublished” works, because they are not tangible. This does not affect the validity of your copyright, but it means you may register dozens of blogs posts as a “collection of unpublished work” under one application and save on registration fees. I am researching that process and will be writing a post about it for Nina Amir’s Write Fiction Now! Blog. I will let Katie know when that post is live. Katie gives a thumbs up.

I’m developing a blog community for screenwriters where they can share scenes by uploading film-script formatted sequences. How can I assure members that their blog submissions will be protected? I am trying to unite a community of writers who use typewriters instead of computers, but I don’t know how to convince members that uploading scanned copies of their scenes is safe and protected from theft.

Your project sounds exciting.

The good news is your contributors own the copyrights in their materials as soon as they fix them onto the typed or written page. Posting the materials on your site will not diminish their copyright.

The bad news is posting does expose their work to outright stealing. There will always be some people out there who break the law.

Your could encourage your contributors to register the copyrights on their unpublished work. That would not stop the actual theft, but registration would give them additional remedies if theft occurs.

You could also require users to login to use your site. Someone with more technical knowledge might be able to help you with apps that improve security.

If you set up such a site, take some time to prepare the legalese of your Terms of Use. You should look at some existing critique sites for examples.

Blending the real world into writing:

My biggest question relates to setting. The book I’m writing takes place at a specific college (my alma mater, to be exact). Could that violate intellectual property laws? There was a beer called Duke Beer, or something like that, that was sued for use of Duke University’s name/logo. I don’t know the specifics.

That made me a skittish about the whole using-Bard-College-as-a-setting thing. Should I make it my point to get legal permissions/use a made-up college, or am I safe?

If you are using Bard College merely as a setting, you should be safe.

I am not familiar with the Duke Beer case, but what you describe is a classic trademark protection action. A trademark is a brand name, and Duke University most likely objected to the brewery using Duke as a brand name because it might imply some association with the university.

If you titled your book Bard College Life, you might get similar objections because that use would look too much like a brand name. Also, if you will say anything defamatory about the school, then consider having a publishing attorney review those portions of your manuscript.

However, if you set your novel at Bard or UMass or UT, that, by itself, is not a problem.

Can I get sued for mentioning celebrities in your book? My book has my characters talking about certain celebs and actors/directors in a not-so-positive light. I also have another story where Justin Bieber and Tom Cruise are gay lovers. Is this okay to publish or should I change the names just to be on the safe side. Also, if I change their names, will Juston Beeber and Tom Booze suffice or must it be changed even more?

Mentioning celebrities is fine, at least in the U.S., so long as it does not appear that a celebrity is endorsing your work. I would also avoid using a celebrity so much that it appears you are piggybacking on their fame. This isn’t a legal theory, so much as a practical one. Some celebrities don’t care, but others may harass you with lawyer letters even if they have no chance of prevailing in court.

Painting celebrities in not-so-positive light is tricky. If you are stating verifiable truth, no one can complain, at least legitimately, but making up unfavorable facts makes me nervous. You could try parody, but don’t be subtle about it. That’s how The Onion Magazine gets away with their work.

You would need to change more than a few letters of the names. If a reasonable person can figure out who you are writing about, then you are asking for trouble.

If you are pushing the edge, which writers should do, consider running the risky portions of your work past an attorney before you publish it.

Instead of focusing on specific people, what if I mention specific companies? For example, a certain car manufacturer that tends to recall its cars for safety reasons. My characters talk about this specific company in a negative way. Is this okay to do while mentioning that company’s name?

If you are going to identify the company, stick to verifiable facts and your characters’ responses to and opinions about the facts. Avoid labels with a criminal connotations such as crooks. Trust your readers to understand your message.

What are the legalities on writing a novel using another writer’s theme/locale/world? Say I wrote a novel about one of the worlds within the Star Wars theme – say Tatooine. I used NOTHING but the planet name itself say. No characters, no towns, no occupations, no cantina….nothing. Just the planet itself. Is that kind of “borrowing” allowed, legally?

In my mind, just because Clive Cussler writes about the sea and ships – does not mean I can’t do that too. Or say a novel about a “Federation” of planets as what Asimov did – but I use NONE of his own items….just the idea of a Federation itself.

Is this “allowed”?

PS when I say theme, I’m about as “broad” as I can be – I am talking about a space opera type SiFi book…but ALL of it’s my own except the locale….

To answer this, I am going to move from the general to the specific.

No one owns a generic idea or locale such as an intergalactic war, a deep sea adventure, a dystopia city. Thousands of books are written using similar settings. Go for it.

But as you borrow specific details created by others, such as planet names, you are venturing into the grey area of fair use. The trend has been to permit writers to use these details, including character names and worlds, so long as the writer creates substantially new and “transformative” content. The less you use of the original work and the more you create on your own, the better.

Have you heard of fan fiction? Is an entire genre based upon using worlds created by others.

What is the most overlooked tax deduction?

Writers who are working as freelancers or who are self-publishing miss out on a lot of tax deductions because they do not treat your writing as a business. If you treat your writing as a business, then you are in a better position to deduct your losses from other income. I wrote a long post about that for Jane Friedman’s blog What Every Self-Published Author Needs to Know About Taxes, and in my book, Self-Publisher’s Legal Handbook.  

Helen Sedwick Guest Posts on KCrossWriting to answer all your legal questions about writing and self publishing. For more information on protecting your rights and your wallet please check out my book Self-Publisher’s Legal Handbook and my blog at http://helensedwick.com/blog/

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Disclaimer:  Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.

 

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