Writing, Self-Publishing, Book Marketing

You might enjoy slinging a little dirt when you write privately at home in your personal notebook. Maybe you like making up stories involving Parris Hilton. And perhaps you’re also a Photoshop wiz who creates pictures that include of you beside Donald Trump. It’s all fun and games, right? Well, not when you cross the magical threshold of the public sphere, especially a major one called publishing. 

As a writer, you deserve to experience the thrill and satisfaction of publishing. And, one thing that will truly spoil your fun is a lawsuit. To ensure that your self-publishing experience remains a positive one, it’s critical to understand a few legal basics before publishing your work, including how to recognize and avoid content that constitutes invasion of privacy, libel and copyright infringement.

Did You Hear? Secrets about Invasion of Privacy

An invasion of privacy lawsuit can occur when a person (specifically, a living individual … ghosts do not apply, and if they did, they’d just haunt you instead) feels their right to control personal information has been violated, causing emotional distress for this person. There are various categories of invasion of privacy, but for publishing purposes, those that apply include: the disclosure of private facts that a “reasonable” person would find objectionable; publication of facts that portray the individual in a false light, even if the facts themselves are not libelous; and appropriation, or the unauthorized use of a person’s name or likeness.

As you can see, these definitions are a bit ambiguous. Just be cautious with “delicate” information about living people, especially if they seem like the suing type! And talk to a lawyer if you’re concerned. Communities and schools often offer free legal advice if you’re in a pinch.

Sticks and Stones …The Dirt on Libel

Libel is the written form of “defamation of character,” while slander is the spoken form. (To remember which one is which, just remember that the “L” in libel stands for literature, and the “S” in slander stands for “speech.”) So, now that you’ve got that straight, you need to know what “defamation of character” means. It consists of any false statements that could hurt the reputation or character of a living individual, company, entity or institution.

Libel has a variety of definitions within the United States depending on each state’s laws, so be aware of slight variences. But basically, the consequences are the same: if you make a libelous claim in your manuscript and publish it, an individual or party has the right to take legal action against you and sue for damages.

What is the difference between a private and public figure in libel?

In a libel case, a private figure is an individual who is not in the public eye. A public figure is someone in the public eye who has actively sought to influence the resolution of a matter of public interest. There are varying degrees of public figures, which can also play a role.

If you make a claim about a private figure in your book, they only have to prove “negligence,” or that a “reasonable” person would not have published the statements. If you’re discussing a public figure however, they must also prove negligence and “malice,” or intent to harm or prior knowledge that the statements were false. This is slightly more difficult to prove (which is why all those tabloids constantly get away with all their “exaggerations of truth”).

In most cases, truth is a defense in a libel case; however, it’s often a difficult and lengthy (thus expensive) thing to prove in court. So again, weigh the consequences of your statement and talk to your lawyer.

Can I Borrow That? The Facts on Copyright Infringement:

A copyright infringement lawsuit can rain on your parade if copyrighted materials, such as quotes, pictures, excerpts, etc. are used in without permission from the copyright holder. What many authors don’t realize is that any material obtained from a book, newspaper, magazine, the Internet, an artist, photographer, or another author is copyright protected by law, even if it is an unpublished work.

Another surprising fact is that a citation will not protect you in a court of law against a copyright case. Now I know what you’re thinking. “But what about all those papers I had to write in school and all that stuff they said about using a citation?” Well, that’s something entirely different involving plagiarism. In publishing, you must obtain permission from the copyright holder. It’s best to get the permission in writing, so that you can keep it on file – just in case …

Now, in some special circumstances, you can use a piece without permission under “Fair Use” or if a work is in the “Public Domain.”

Fair Use:

The following four factors are used to determine fair use: 1) The purpose and character of the use, including potential gains for commercial or nonprofit 2) The nature of the original copyrighted work 3) The proportion or percentage of the copyrighted material used in relation to the work as a whole 4) The potential effect on the value of the copyrighted material.

There is no defined rule regarding the number of lines or words that can be used without permission. In general, if you are quoting a work, only using a few lines within a long book, you will probably be protected under fair use. Just remember: fair use is not a right, only a defense.

Public Domain:

Works “in the public domain,” are free to use without permission because their copyright has expired or lacks proper notice. Determining if a work is truly in the public domain can be a tricky task due to new versions of older works, protection in countries other than the U.S. and protection under alternative laws. If you are unsure, consult a legal advisor.

Legal issues can be intimidating and confusing. So, here are a few “red flags” to look for in your work. Seek legal council if your manuscript contains statements as facts or implication about any living individual, company, or any other organization regarding:

• Any statement that could damage their reputation
• Criminal conduct or conviction of a crime by a company or individual
• Unethical conduct by a person or company
• Immoral sexual conduct
• Bankruptcy
• Association with distasteful or immoral people
• Private, embarrassing facts
• Professional incompetence or disbarment
• Alcoholism, drug addition or any other dishonorable acts
• Possessing a mental disease or disorder
• Thoughts or feeling attributed to an individual
• Portraying someone in a false light
• Minor (aged 21 or less) who is an adopted child
• Sexual or physical abuse of a minor
• A minor who is a victim of a crime
• Trademark, service mark or trade name used in the title of your book
• Picture, quote or close reliance on a copyrighted work without permission from the copyright holder

Remember, just because a statement is true, will not necessarily protect you. Although truth does negate a libel claim, it can be extremely hard to prove in court, as well as time consuming and costly. Additionally, truth does not protect you from invasion of privacy suits.

Now, I’m not a lawyer and if I was, I’d be sitting in a much more comfortable chair, periodically “objecting” to things while sipping a scotch on the rocks (well, that’s what they’re always doing on Law and Order, anyways … ) And of course, our legal system is pretty complex, so this post may not contain every circumstance of possible legal issues contained within a manuscript. But hopefully this will give you enough information to feel confident in publishing your book, or to take the appropriate action to protect yourself.

-Angie