Legal Issues for Self-Published Authors by Lila Bailey

Transcript

1. LEGAL ISSUES FOR SELF-PUBLISHED AUTHORS PRESENTED BY LILA BAILEY, DIGITAL COPYRIGHT LAWYER LOS ANGELES, CA JANUARY 11, 2014
2. Lila Bailey lila@lilabailey.com 2
3. QUICK NOTES •  Not legal advice! •  Ask questions! lila@lilabailey.com 3
4. INTRODUCTION lila@lilabailey.com 4 Photo by: dw capital GmbH, CC-BY-SA Image from the Public Domain
5. SELF-PUBLISHING SUCCESS STORIES lila@lilabailey.com 5
6. OVERVIEW Part I: Copyright Basics Part II: Contractual issues Part III: Licensing lila@lilabailey.com 6
7. PART I COPYRIGHT BASICS lila@lilabailey.com 7
8. lila@lilabailey.com 8
9. CONSTITUTION: ARTICLE 1, § 8 “To promote the progress of Science and Useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” lila@lilabailey.com 9
10. AUTOMATIC PROTECTION •  Copyright protection automatically applies to original works of authorship that are “fixed in any tangible medium of expression.” •  You don’t need to do anything other than write your ideas down to have your work protected by the law. lila@lilabailey.com 10
11. REGISTRATION Registration is only required in order to enforce copyright in court (gives courts jurisdiction). lila@lilabailey.com 11
12. © SUBJECT MATTER Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. lila@lilabailey.com 12
13. NO © PROTECTION/ PUBLIC DOMAIN The public domain is not a place! Things that are not protected by copyright include: •  Facts, data •  Ideas, methods, or systems •  Names, Titles •  Short phrases, expressions •  Basic plot structures •  Works of U.S. Federal Government •  Utilitarian objects •  Expired copyright (works published before 1923) lila@lilabailey.com 13
14. LENGTH OF © PROTECTION •  If the work is written by an individual author and first published in the United States after 2002, the term of protection is life of the author + 70 years. •  After that, the copyright term expires, and the work becomes part of the public domain. lila@lilabailey.com 14
15. © OWNERSHIP Individual Works •  Owned by the single author (or estate, or organization) Joint Works •  Owned jointly by two or more authors Compilations •  Ownership can vary depending on circumstance Works for Hire •  Owned by employer lila@lilabailey.com 15
16. EXCLUSIVE RIGHTS Copyright law gives the owner of a copyrighted work the exclusive rights to do and to authorize any of the following: 1.  to reproduce; 2.  to prepare derivative works; 3.  to distribute copies; 4.  to perform the copyrighted work publicly; and 5.  to display the copyrighted work publicly. lila@lilabailey.com 16
17. DERIVATIVE WORKS A derivative work is a work based on or derived from an existing work, such as translations, motion picture adaptations of novels or plays, sequels, revisions, and abridgements. Concept important in fan fiction: •  You have a copyright in anything you write, but if it’s based on someone else’s work, it might be infringing on their derivative works right. •  Generally, you are not permitted to write a new story for someone else’s characters without permission (unless it’s fair use). lila@lilabailey.com 17
18. FAIR USE Sets out when it’s OK to use someone else’s copyrighted material. There are no hard and fast rules, but the factors to consider are: 1.  Purpose & character of the use 2.  Nature of the work 3.  Amount taken 4.  Market harm lila@lilabailey.com 18
19. © INFRINGEMENT To prove infringement you must show: •  Valid copyright •  Violated at least one exclusive right Strict liability •  No need to prove that you knew or intended to violate copyright lila@lilabailey.com 19
20. WHAT IF SOMEONE PUTS MY WORK ON THE INTERNET W/O MY PERMISSION? •  If you find your work hosted somewhere on the Internet, the law provides “Notice and Takedown” provision to get your work removed from the site quickly. •  This law is known as the Digital Millennium Copyright Act (DMCA). 17 U.S.C. § 512. •  Most platforms will have specific procedures for responding to DMCA notices. Look in Terms of Service or Copyright Policies. lila@lilabailey.com 20
21. PART II CONTRACTS lila@lilabailey.com 21
22. LICENSE VS CONTRACT License = Unilateral permission to use someone’s property Contract = A mutual exchange of legal obligations lila@lilabailey.com 22
23. BASIC ELEMENTS “Meeting of the minds”: •  the parties must all agree to the same things, mutual assent Consideration: •  exchange of legal rights Capacity: •  the parties must be of legal age and of sound mind Only for legal goods/services: •  contracts for illegal things are not valid Specific terms: •  must set forth the exact details of the agreement Form: •  oral and written are both binding, but advisable to get things in writing in case of later disputes lila@lilabailey.com 23
24. TYPES OF AGREEMENTS •  Editor/copy editor/fact checker •  All writers need an editor! Agreements can be simple, but make sure to specify exactly what each side will provide and what triggers payment •  Agreements with beta readers •  Even if you are just asking your friends, you will want a simple NDA. •  Cover design, illustrator, photographer •  Making a high-quality finished book may take skills you do not have, and you may decide to hire people to help you. Again, it’s important to have an agreement in writing that clearly spells out what each party’s responsibilities are, and payment terms. •  eBook conversion •  You may be able to do this yourself, but if you hire someone to help, you’ll need an agreement. lila@lilabailey.com 24
25. TYPES OF AGREEMENTS (CONTINUED) •  Printing •  If you are self-publishing a physical book then you will need someone to print hard copies for you. There are many print on demand services out there. Make sure to understand things like who pays for shipping and what happens if copies are damaged on delivery, etc. •  Distribution •  Ingram or Amazon CreateSpace for physical books •  Kindle Direct Publishing, Nook, iTunes, etc. for eBooks •  These agreements are largely take-it-or-leave it forms when you sign up for the service. Still need to READ EVERY PAGE! •  ISBN •  MyIdentifiers.com will give you ISBNs for all versions of your book (hard cover, paperback, eBook) lila@lilabailey.com 25
26. NEGOTIATE EVERYTHING! Even when you are offered a “take it or leave it” deal – in sales, everything is negotiable. •  Look for special deals on packages. •  Use different platforms against each other. •  Don’t be afraid to ask for deal sweeteners (like extra free copies of your book). lila@lilabailey.com 26
27. IMPORTANT PROVISIONS Rights (a.k.a., license) This is probably the most important thing your book contract will define. Read it carefully! Beware of signing away subsidiary rights. Except for print rights, all other rights are negotiable. Even a first-time author should be able to keep foreign and film rights. Royalties. This is how you will get paid, so pay close attention! These are almost always negotiable. Make sure you understand the formula they will use to calculate – not just the percentage but also the price on which the percentage is based (retail? wholesale? net?) lila@lilabailey.com 27
28. IMPORTANT PROVISIONS Options Clauses. Usually gives the publisher the right to buy or make an offer on the author’s next book. Generally this will be a bad deal for you, and you shouldn’t accept any options clauses. Out of Print Clauses. When your book goes out of print, you will get back all your rights. Ideally, whether the book is “in print” should be pinned to the publisher’s marketing efforts. When they stop marketing your book actively, it should be considered “out of print” and all rights revert back to you. lila@lilabailey.com 28
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30. IMPORTANT PROVISIONS Warranty & Indemnification. These are the clauses most likely to make your eyes glaze over. The warranty section sets out the promises you are making to the publisher (such as you are the sole author of your work). Make sure they are all true before signing! Indemnity provisions set out the rights and responsibilities of the parties if a claim is made by a third party. Usually they say that the author will have to pay for the cost of litigation against the publisher if anyone sues over the book. Make sure you understand what is covered here, and try to negotiate these as narrowly as possible. lila@lilabailey.com 30
31. PART III LICENSING lila@lilabailey.com 31
32. LICENSE VS CONTRACT License = unilateral permission to use someone’s property Contract = A mutual exchange of legal obligations lila@lilabailey.com 32
33. lila@lilabailey.com 33 “My problem isn’t piracy… it’s obscurity.” – Cory Doctorow, author of Little Brother and Homeland, editor of Boing Boing
34. CREATIVE COMMONS A non-profit organization that offers a simple, standardized way to grant copyright permissions for creative work. Photo by Tyler Stefanich - CC BY
35. CC LICENSES LET YOU •  Copy •  Share •  Adapt •  Remix/Reuse …Legally!
36. ATTRIBUTION Allows others to copy, distribute, display, and perform the copyrighted work — and derivative works based upon it — but only if they give credit in the manner specified.
37. NON-COMMERCIAL Let others copy, distribute, display and perform the work for non-commercial purposes only.
38. NO DERIVATIVES Allows others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it.
39. SHARE ALIKE If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
40. SIX LICENSE OPTIONS
41. THREE “LAYERS” •  Legal Code – Contains the legalese to make the license enforceable just about anywhere in the world. •  Human Readable – Contains language normal people can read and understand. •  Machine Readable – Contains metadata written in a format that software systems, search engines, and other kinds of technology can understand.
42. MAKES WORKS EASY TO FIND lila@lilabailey.com 42
43. •  Creative Commons licenses do not affect fair use rights, which means you are free to make fair uses of CC licensed materials. •  But, importantly, CC licenses grant you permissions that often go beyond what fair use would allow, so you don’t have to worry or ask permission. CC + FAIR USE Photo by David Neubert – CC BY-SA.
44. Discussion/Questions lila@lilabailey.com 44
45. CONTACT INFO Lila Bailey Partner, The Law Office of Lila Bailey lila@lilabailey.com @LilaBaileyLaw www.lilabailey.com lila@lilabailey.com 45