As more new writers indie-publish their work, I’m seeing an increase in the number of issues with copyrights and permissions as it pertains to the use of others’ work. What I’m talking about is writers using copyrighted material in their books without proper permission from the copyright holder. I’ll get to the specifics in a moment.
In the past, when traditional publishers were the only viable route to publishing, their editors knew the legal issues involved here and dealt with them accordingly. Many first-time authors or those who never went the traditional publishing route previously aren’t aware of the issues involved and the trouble they can get into.
Let’s be clear on something. Scott and I are not lawyers, so none of what follows is to be construed as legal advice. We’ll lay out the issues that you need to be aware of and what trouble ignorance could cost you. The use of copyrighted material can be complex. Even if you think you’re okay, ASK someone qualified to give you the right answers.
I want to cover four problem areas for fiction writers and self-publishers. These are by no means the only things you need to worry about, but they are the ones I most see being misunderstood. If you write nonfiction, you may have additional points to consider. I’m going to deal mostly with fiction here.
(1) Quoting copyrighted material– For fiction writers this usually is manifest in the use of song lyrics in their writing, but also includes quoting lines from a play, poem, or movie. The Copyright Law principle of Fair Use is what permits writers to quote material in books as long as the source is attributed. There are, however, restrictions on how much you can quote.
Material in the Public Domain can be used freely. For example, you can quote Shakespeare or most older works in your writing, but you need to determine that the material used is indeed in the public domain. Nevertheless, you should still attribute the source for informational purposes and so no one will accuse you of plagiarism.
Here’s the link to the complete Copyright Law. Yes, it’s intimidating, and you might not understand it, but this is the definitive version.
And a stripped down version–
I want to emphasize that writers have to pay close attention to what Fair Use means. Read the material in the second link carefully.
(2) Poetry and song lyrics– I hear authors asking all the time if it’s okay to quote a few lines of a song’s lyrics in their work. After all, it’s just a couple of lines. The answer is: NO, not even one line without permission.
You might argue that you can find complete song lyrics on websites (and plenty of such sites exist), with the composer listed. So why can’t you use them in your novel? The difference is the intended use. A novel is considered commercial use. The websites are not making money from the song lyrics, merely posting them for reference purposes.
In order to use song lyrics–even one line–in your novel, you must have written permission from the copyright holder (the same applies to poems). Note that I said “copyright holder.” This may not be the same as the recording artist or the composer of the song. Copyrights can be sold. The Beatles songs come to mind.
That said, you can mention a song or poem title, and you can refer to the lyrics in a way that’s not quoting them.
Why have I singled out poems and songs and not mentioned works such as other novels? One reason is that it’s tempting for a writer to have familiar song playing on the radio and to quote the lyrics in the novel to set the mood. Another reason is that a couple of lines from a song or poem represent a substantial portion of the piece, whereas quoting a line from another book represents a tiny fraction of the entire work–where Fair Use comes into play. The restriction isn’t limited to songs and poems. Familiar lines from plays and screenplays can be a problem as well. The rule is: don’t do it. However, it’s okay to use a song or poem title because titles cannot be copyrighted. Just be careful.
Two examples from my own novels are relevant here:
In “Vampires, Inc.” I wanted one of the characters to say,
“And he says you got that Star-Wars-Force thing going for you. ‘Help me, Obi Wan, you’re my only hope.’ Give me a job and save me from Ethan’s Evil Empire.”
The publisher said no. It’s copyrighted–and very familiar–material. Now, I doubted that it would have caused me trouble, but the publisher took a hard line and didn’t want to risk it. Better safe than sorry. Lawsuits can be expensive.
In the same novel, I originally had a character thinking, …like in the old Dire Straits song, “money for nothin’ and chicks for free.”
Again, the publisher said no, but I didn’t have to delete the whole line. Here the difference was that “Money for Nothin'” is the song title. Titles cannot be copyrighted (but they can be trademarked). With the added words, though, it became part of the lyrics. It wasn’t a big deal. I still got the point across. Again, it probably would not have been an issue, especially since the novel wasn’t a bestseller and thus wouldn’t have been noticed by the copyright holder. But why risk it?
(3) Using pictures from the Internet on your book cover– here’s one I’ve seen occurring more and more. ALL material you find on the Internet is protected by copyright, whether explicitly stated or not. That’s how the copyright law works. Artists’ works and photographs are protected. Even if you don’t see a notice or copyright symbol, you must assume it’s there.
If the photographer or artist specifically declares his work to be in the public domain or to be under a Creative Commons License (but check the terms of the license) and says that anyone is free to use it, that’s a different story. Usually the copyright holder will still specify that you give attribution if you use it. Sometimes this is in the fine print. Be sure you read it.
The bottom line is that, in the absence of an explicit statement to the contrary, you are NOT free to use anything you find on the Internet. You must assume it’s protected, copyrighted material and not fair game for commercial purposes.
(4) Using your own photos for your work– Believe it or not, even if you are the photographer, you may need permission to use your own photograph for commercial purposes (or even some noncommercial uses). And you could be sued. This isn’t a copyright issue as much as a privacy issue.
Here’s an article that all photographers should read and be aware of, and if you design your own book covers, you need to pay attention to it as well. Yes, I know it’s long (it’s also interesting), but knowing this information could save you from legal problems down the road–even if you’re not using photos of real people on your cover or in your book.
Pay close attention to the taking photos of buildings–even those with no people in the picture. If you photograph a private residence, make sure no street sign, or house number, or other identifying mark is visible in the picture that could readily identify it and be construed as an invasion of privacy. Recognizable buildings shown in a bad light, such as using a photo of a well-known and respected place of business as the suggested site of the illegal activities, could potentially cause you a problem. Remember, too, that if you do put a building on the cover of the book, it needs to have a clear purpose in being there.
What brought this whole topic up was an author who, in designing his own cover, found a stunning image that was perfect for his novel. Another writer in the chat group recognized it as the cover for a video game and pointed this out to the first writer, who had found it on the second site as computer wallpaper. He figured it was okay to use it, unaware that he needed permission. Even after he was told, he still intended to use it until finally convinced how much trouble he could get into.
The site where he found the image might have been itself violating the copyright. I can’t say for sure because I didn’t see it myself to determine whether an attribution was given there as being copyrighted material. Don’t get caught in this trap. To repeat, copyrighted works are protected even in the absence of a copyright notice. While it’s generally up to the owner of the work to post the notice, he can’t control what others may do after him. In other words, the absence of a copyright noticed does not mean you’re free to use it. Ignorance is not an excuse.
Many photo sites exist for authors to find images, but in almost every case, there are usage fees, with restrictions, and the fees may go up if you expect to sell a large quantity of books with that cover image.
Don’t fall into the second trap of using copyrighted material without permission on the assumption that you won’t sell enough copies to matter and that you’ll stay under the radar. The same Internet you’re using to help you find pictures and to promote your work can work help a copyright holder find violators of his rights.
Here’s another personal example relating to cover images. For an upcoming novel, my co-author (Chris Keaton) and I needed a mosaic for the cover (because the title is The Mosaic). We found a photo of a Roman mosaic taken in a museum in Tripoli, Libya. We only intended to use a small portion of the image, so Chris suggested we not bother with permission. The photographer was not a professional, lived in Spain, and probably would never see the cover anyway or even recognize that we’d used part of his photo if he did. Ethically we were bound to get his permission.
As it turned out, Chris had no trouble contacting the gentleman and obtaining permission. All he asked for was a copy of the book when done. We will of course attribute the image to him as well. In any case, we have his emailed permission on hand. We protected ourselves. If we hadn’t been able to get his permission, we’d have looked for an alternative. We were lucky in this case, but don’t assume that everyone is out for money, either. Don’t take the risk and respect the work of others.
Lawsuits have been filed against authors for seemingly minor violations of copyrights. Even if you’re sure you’d win, the legal hassles and costs to you aren’t worth it.
(4) Trademarks– This is my final point in this discussion. It’s up to a writer to know whenever he uses trademarked names and to use (and spell) them properly. Again, this is where professional editors know their stuff. Use brand names properly or you could find yourself receiving a letter from the company or group whose name you’re misusing. The soft drink name is Coke, not coke (which is one street name for cocaine). Are you aware that Dumpster and Laundromat are also trademarked names? As a writer, it’s your business to know that.
SCOTT’S SIDE NOTE: Companies are usually very strict about the proper use of their name. Maui Jim Sunglasses, for example, sponsors a charity golf outing I run every year. They provide me with two pairs of sunglasses, along with shirts, hats… and a note that says they are to be referred to as “Maui Jim Sunglasses.” Most people simply say “Maui Jim,” and it gets the point across. But this is an event where we are making money, and they insist on the proper use of the company name.