TOP 10 THINGS YOU NEED TO KNOW FOR YOUR BOOK TO PASS LEGAL
(so you can get paid)
Your publishing contract requires that your book is original, does not infringe copyright
or any other rights, and is not libelous. Here are the top ten things you need to know to
help you keep to those obligations, get through the legal review and get to “D & A,” i.e.,
get paid:
1. Copyright/Fair Use: You may not copy or use another person’s work, but
sometimes you can use some of it without it counting as infringement. This is
called “fair use.” Fair use is not about quantity. There is no magic number of
words that “automatically” qualify as fair use. The analysis is based on how much
of the original work you use, not how much of your book is from another source.
That’s why song lyrics and poems are the trickiest: a small number of words may
be a large percentage of the original. Unless you are writing commentary or
criticism, or a short excerpt is woven into your narrative, you will need
permission. This includes epigraphs.
2. Permissions from participants and “characters” in your book: If you will be
exposing potentially embarrassing facts about private figures (your friends and
family) you may want to get their permission. If you are interviewing someone
who may deny having spoken with you later, you will want to get permission. If
the interview is taped you can remind the interviewee that the interview is for a
book and have them assent on tape. Otherwise your publisher will have a form
you can use.
3. The Internet is not open source. Just because something is on the Internet it is not
in the public domain. Unless a site says its material can be used without
permission such as Wikicommons, assume you need permission.
4. Turning humor blogs/twitter feeds into books: parody can be fair use. You can use
just enough of the original material to “conjure up” the first use for your readers.
Use the minimum amount of the original work to cue readers in on what you are
doing, but do not simply alter a few things to make your own version of the
original work.
5. “Libel” means writing something that harms another person’s reputation. Truth is
a complete defense: Can you prove what you wrote is true? Most likely your
memoir is about private figures. While the legal standard for libel of a public
figure favors authors—you knew or had reason to know what you wrote was
false—the standard for private figures is only negligence, that is, carelessness.
You must check and double check to be sure what you write is true.
6. The Internet is not fact-checked. Use trustworthy sources (websites of major news
organizations) and always check the sites yourself. An author once used a website
as a source for a libelous claim about a well-known retailer—I checked the site
and saw it noted on its home page that it was a “fake news site.”
7. Who will back you up? What you write in a memoir will probably not have been
reported in the news. Is there someone else who witnessed what you are writing
about (a fight, abuse, lying) and will back you up? Will they come forward on
your behalf in the event of a claim? Will they put that in writing for you? Beware
the “minor” character. Just because someone does not play a big part in your story
does not mean they are less likely to make a claim; often they are more likely.
8. Change of identity: If you cannot get these assurances, or just want to be kind,
change the person’s identity. Not just their name, but other characteristics so that
people who either knew them at the time the events took place or are in their
community now will not recognize them as the person in your story.
9. Rumor and Opinion: “Rumor” is not a shield: Calling something a “rumor” does
not protect you from a claim by the subject of the rumor. You must be sure of the
truth. The only time you should write about a rumor is to disprove it. “Opinion”
can be a shield, but only when stated after giving all the true facts underlying your
opinion. You cannot simply say “In my opinion,” and be done with it. “I think
Danielle is a car thief,” is not OK. “I saw Danielle checking car doors until she
found an unlocked one, get in the car and start it without a key. I think Danielle is
a car thief,” is a protected opinion. Hyperbole, which cannot be proved true or
false, is considered protected opinion.
10. Tell the truth about yourself. If you are telling a story of your prior troubled or
troubling behavior, be prepared to show records of your arrests, incarceration,
institutionalization, etc. Be prepared to have siblings, parents, friends vouch for
you; if you make up your childhood chances are someone will expose you.
© 2011 Linda Friedner Cowen
Associate General Counsel
Penguin Group (USA) Inc.
linda.cowen@us.penguingroup.com