Legal Issues in Self-Publishing

July 23, 2011 at 12:22 am | Posted in Uncategorized | 8 Comments

I am getting ready to self-publish my first book, and as I do so, it has occurred to me that there are potential legal liabilities involved.  A traditional publisher would provide advice and help arrange permissions where necessary, if possible.

1. Quoting other works.  Use of song lyrics, poetry, or quotes from another work, even as epigraphs at the beginning of a chapter, could potentially violate Fair Use doctrine.

2. Use of images.  In my particular case, I am considering a photomontage as a part of my book trailer, and I am researching whether I will be able to do it without infringing on Fair Use.  There is no way I would be able to get access to photograph most of the subjects I want on my own; otherwise I would just go around with my digital camera and get it done.

3. Fan fiction.  Evidently, parody is considered fair use, while satire often is not.  Straight-up homage is not fair use, although authors generally condone it because it broadens the market for their work.  So far fan fiction as fair use has not been tested in court.

I am not a lawyer and I have never worked in publishing.  I don’t have much advice to offer on these possible pitfalls.  The purpose of this post is to raise some concerns, so other self-publishers can take them into account.

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  1. There’s a certain percentage of any work that you can quote and still claim fair usage, but I don’t remember what the precise amount is. There were paragraph-long citations (and, yes, also stanza-long song lyrics,) that I used in my thesis without fear of repercussion, though for a work like yours there may be different rules, or different applications of certain rules.

    So far as images and fan-fiction go, though, I don’t have the first clue of an idea of a yarn ball. :/

    • From what I’ve been reading, the “percentage” issue has gotten more complex. For instance, it used to be considered fair to quote up to 300 words, but a court case found that it was not fair use for The Nation to quote the key 300 words from Ford’s book explaining why he pardoned Nixon. Basically that would obviate the need for anyone to read the book.

      Now it appears to be based partly on the purpose of the quoter, i.e. is it for commercial gain?; partly on percentage of the work; and partly on qualitative impact of the section being quoted.

  2. All difficult issues, and a hard world to wade through, since different authors and publishers deaw the line in different places. Author Naomi Novik has an organization to help authors with issues of copyright, particularly those writing fanfic, if you haven’t discovered it yet, it may be useful for you: http://transformativeworks.org/

    • The main issue with fan fiction is that the characters are copyrighted by the author. Setting a story in someone else’s fictional universe is one thing; selling a novel based on a homoerotic relationship between Kirk and Spock might raise some authorial hackles. I’ve never written fanfic myself, nor am I enough of a fan of anything to have considered it, but if I were, I would probably try to submit something as part of the pre-existing franchise. There is room for many, many Star Trek/Star Wars/Buffy novels out there.

  3. Thank you so much for a great post. As a writer with a newly finished novel looking at self-publishing, it’s always great to find others in the same boat who are willing to talk about some of the more subtle concerns at hand. Wonderful things to consider, especially the use of other quotes/lyrics/etc in a context that may not facilitate a ‘works cited’ page and yet lacks the utmost quality when excluded due to Fair Use. Please keep us updated on your self-publishing experience.

    • Thanks! I will. It helps me to think “out loud” and it’s a great way for me to troll for the advice of others. 🙂

  4. I am a first-time author interested in self publishing. My book contains names and comments about individuals; some not always so nice, but all are truthful. I do not have permission from anyone mentioned in the book. I’m concerned about liability and being sued. What advice is there out there for the best way to handle this challenge?

    • Is it a novel, a memoir, or other non-fiction? Depending on the country where your book is published, you could potentially be sued for libel or defamation of character. Whether they are able to prove it and win their case or not, it could incur court costs. If I were in your situation, I would ask myself a few questions:

      1. Who is my intended audience?
      2. Does the book require that these things be said in the way I’m saying them?
      3. Do I have to “go there” or is there a way I can get the same message across without naming names?
      4. Are these public figures? Family? Close friends? Colleagues? Am I ready for all the ways my book may change my relationships with them?
      5. Would I mind if another author put me in his book in the same manner?
      6. Would it be worth it to me even if everyone involved took me to court and I wound up in the international news?
      7. What are my plans for a follow-up work?

      Now, that’s just my advice: free, and worth every penny. If you’re smart, you’ll consult a personal liability lawyer and have her look over the sections that concern you.


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