10 things you should know about ... publishing law

The law relating to the publication of books, journals, newspapers, magazines and their electronic equivalents is, I think, one of the most interesting areas of legal study. Although the core principles of publishing law are enduring, change is a constant.  The manifestation of the principles of the law of publishing in legislation and case law reflects both the march of technology and the deep currents of our literary culture - as well as passing parliamentary and judicial fashions. In this way, publishing law holds a cracked mirror to our literary culture; and the reflections we glimpse aren't always pretty.

In this post, I outline some of the headline features of the law of publishing: those things that everyone involved in publishing should know about.

1. It's a chimera

There is no unitary body of law that relates exclusively to publishing, although many areas of law makes use of variations on the concept of a publication. It is those areas of law – copyright, defamation, contempt of court, and so on – that form the kernel of publishing law. In other words, the subject is composed of a miscellany of the parts of real legal subjects: it's a chimera.

2. The importance of copyright

The heart of our chimera is copyright law, which gives legal protection to works that lie at the heart of publishing: books, journal and magazine articles, blog posts, and other literary formats. Copyright prohibits, amongst other things, the publication of a work protected by copyright without the permission of the copyright owner.

3. Exploitation and contract

While copyright protects the monetary value of literary works, the law of contract enables their effective exploitation. The rights that copyright creates (including the right to copy and publish a work) can be “dealt with” by means of a contract.

4. Assignments vs licences

There are two main sorts of dealing. Assignments of copyright involve the transfer of ownership of the copyright; licences, on the other hand, involve the granting of an express right to do something which would otherwise be an infringement of copyright. Some kinds of publishing, for example trade publishing, usually involve licensing rather than assignments. Other types of publishing involve assignments rather than licences.

5. Writing it down

All or almost all publishing agreements should be in writing. Whilst English law tolerates unwritten contracts, those which involve a legal assignment of copyright or an exclusive licence of copyright within the meaning of the legislation must be in writing. Even where a publishing arrangement does not involve an assignment or exclusive licence, it is sensible to prepare a written agreement. A good written agreement provides the best evidence of the contract, helps ensure that the parties are of one mind, reduces the risk of a dispute and helps with the management of a dispute should one arise. A lack of good contractual documentation can render a publishing business unsaleable.

6. Fees, royalties and advances

A publishing agreement will typically provide for an author to be remunerated either by the payment of an agreed fee or by the payment of a royalty. Where payment is by way of royalty, there may also be an advance, which will need to be earned-out before the royalty payments commence. Agreements featuring assignments of copyright tend to work better with fee-based payments, while agreements featuring licences of copyright tend to work better with royalty-based payments, but in practice many agreements combine assignments and royalties or licences and fees.

7. Works and warranties

A publisher will usually ask an author to warrant (that is, affirm the truth of) various statements regarding the work to be published. For example, a publisher might ask an author to warrant that the work is the original creation of the author, that it has never been previously published, and that it won't infringe the copyright of any third party. Many of the warranties in a publishing contract will be directed at the issue of content liability. This is because the publisher - and sometimes others involved in the publication and distribution of a work - may be liable in the event that the work contains legally problematic material.

8. Forms of content liability

There are many different ways that legal rights can be infringed, and many different sorts of legal wrongs that can be committed, by the simple act of publishing a written work. For example, a single work could: be libellous or maliciously false; be obscene or indecent; infringe copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights; infringe rights of confidence, rights of privacy, or rights under data protection legislation; constitute negligent advice; constitute an incitement to commit a crime; be in contempt of court, or in breach of a court order; be in breach of racial or religious hatred or discrimination legislation; be blasphemous; or be in breach of official secrets legislation.

9. Moral rights

Moral rights arise in relation to most works that attract the protection of copyright. Unlike copyright moral rights cannot ordinarily be transferred, although as a matter of English law at least they can be waived.  The most important moral rights are the right of paternity (i.e. attribution), the right to object to the derogatory treatment of a work, and the right to object to the false attribution of a work.

10. Publishing law and litigation

Publishing companies are quite risk adverse, and rarely litigate. In particular, they rarely sue individual authors, partly because authors may not have assets worth pursuing, partly because of the expense of litigation, but also because they do not want to be perceived as being unfriendly to authors.

Comments

What do you mean by "no longer valid to publish"?

Can I quote parts of interviews and sound bites from radio and magazines in my book?

I work for a local newspaper. I'm (in theory) the head writer on the staff, the first three pages of each issue are 100% my writing. I've been working there for a while but I am still not listed on the masthead. Not even as a contributor? I've mentioned this to the owner who assured me that this would be resolved (weeks ago), but each week a new paper comes out and I'm still not listed. Is this legal?

Is this in the UK?

No, US - New York State.

I'm not familiar with US law in this area, although a moral rights based argument doesn't look too promising:

https://www.wellsiplaw.com/what-are-moral-rights/

Should a magazine publish the name and address of the publisher and their distributor?

A local newspaper has published pictures of my affected property in their paper and on line.

They have stated the property is unoccupied allowing all to be aware of this.

I live 4 hours away. I am disgusted that they have advertised that my property as unoccupied and vulnerable.

Can they legally publish these details without my consent?

Thank you

Is this a UK newspaper?

Yes, a local paper on the Isle of Wight

I think there is a reasonable argument there that a specific disclosure that the house is empty could be data protection breach (or alternatively a privacy brach). It does depend however on exactly what information is included in the article and how the prejudice to you balances against the public interest. For background regarding data protection and journalism, see:

https://ico.org.uk/media/for-organisations/documents/1547/data-protectio...

For more detail see:

https://ico.org.uk/media/for-organisations/documents/1552/data-protectio...

The first thing to do would be to write to them, suggesting that there might be a legal issue here, and asking that they amend the article.

I want to sell in the UK an Indian book which probably infringes, albeit harmlessly enough, someone’s copyright. Is It illegal to distribute it if not publishing it.

Distributors of infringing works are covered by the secondary infringement provisions in UK copyright legislation.  See:

https://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/II/crosshead...

In other words, distribution of an infringing work may be unlawful.

Hello Alasdair,

I help to publish a local hard-copy parish magazine (12 - 16 A5 pages) which is delivered to 200+ households in Cumbria. It includes the usual sort of local news/events and local traders adverts (up to six). One or two readers have asked if I can email them a copy. This is fine with me, however, I have been advised that as the content includes advertisements I can't distribute it by email - is this right?

I've read your 10 tips above and will add disclaimers in future editions - we already acknowledge all contributors as a matter of courtesy.

Thanks for your time

Don

Hi Don,

If we assume that this would be treated by the law as a direct marketing communication, then you are nonetheless able to send it by email if you have consent. By asking for the magazine to be sent by email (and presumably providing email addresses) the individuals in question have consented. Strictly, you should give them the opportunity to opt-out from further issues each time you send them an email.  You should also keep evidence of the consents I suppose.

Hi Alasdair, 

I want to publish the work of my ancestor, his memoirs were published in the US but in Russian in 1953 - year of his death. The publishing house that published his memoirs back then has been closed for decades. Does my family owns the right to his memoirs or is there anything in particular that I'm missing and should consider doing before proceeding with the publication? 

It's often difficult to establish the subsistence and ownership of historical copyright works, particularly where multiple jurisdictions are involved. You would need to take professional advice on this sort of question.

Hello!

I'm researching a topic for a college seminar paper that revolves around the question, "Why don't books come with content advisories like movies, music, TV programs, video games, radio, etc?"

These other media have the FCC, not exactly as oversight, but as the knuckle-cracker who fines/penalizes them when they violate legistated decency standards. If the publishing industry has one, I can't find it. Is there one? If there is, does it operate similarly to the FCC? 

Dear Alasdair

What an excellent site, and much needed.

I want to write a novel based on a true-crime case. All the main participants are deceased now and I appreciate that you can't defame the dead or invade their privacy. However, as the crime took place in the late 1940s, it's possible that close relatives of the protagonists are still alive. My question is whether it is possible to invade their privacy simply by writing about something in their family's past they would rather forget?

Another option is to write up the same crime case as non-fiction. Are the privacy considerations very different in the case of fiction vs non-fiction? I understand that changing details i  a fictional account can afford some protection against privacy issues but in this case it's the details that make the story compelling, so it will defeat the object of the exercise if I have to alter them too much.

Last year I published a non-fiction book about a Victorian crime and I've been contacted by two relatives of that perpetrator, in a friendly way, just to say they appreciated the book, but it makes me mindful that family memories are very long.

Many thanks for any guidance.

Julia

Hello,

I'm curious about the use of historical information in the construction of a fictional work. If one changes names and slightly alters the particulars of someone's life, what legal remedies are available to those who may have an interest in the publication. So, say someone wants to write about a relative, now dead, who had an interesting life, but that same author wants to embellish at their leisure. Is this an actionable offense? Is it an offense at all? By "interest" I mean someone who, say, is a child of someone who is the main character of a novel. Is there any law that states the person in control of one's estate has a say in what information can be used, when and where?

This is one of the precise things I'd like to know about too. Unfortunately, I don't think messages are being replied to very often on this website at the moment. Yet it seems to be one of the few places where these issues are discussed. I'm hoping we will get a reply before too long.

... for the current lack / delay of responses to comments. With the GDPR coming into force in a couple of months, I don't currently have time to answer anything but the most straightforward questions.

Hi,

An ex-work associate has written a autbiography taking credit for an incident that I instigated and was key and involved in and this person has named himself as the lead employee.  There was a public inquiry regarding this and with eyewitness accounts the author has clearly lied. I am a UK resident and I have already emailed the publisher stating I’m intended legal action against the author.

I would like to know if I have a case against both the author and the publisher?

You should consult a solicitor about this - it's not the sort of thing that I can give useful advice on here.

Hi, I'm designing a magazine for a company I used to work for. Content is provided by them and layout theme is one I used when I worked there. Now that I'm freelancing, does this mean I would own the copyright to the magazine design? or do they own it? Would I be the publisher? Also, I'd like to put my company name and email address somewhere on the magazine (so that I can add it to my portfolio of freelance work) e.g. Magazine designed by... But the client doesn't want me to do this (they're basically trying to make out it's pubished in-house (even though it's not!). Any advice would be much appreciated. Many Thanks.

Hello,

My question is one for a publisher. If an author is happy with their book when published, has had the final say in satisfaction with book before printed, and even went so far as to thank the publishing company in the beginning of the book, can this same author come back over two years later and demand a refund for sections of the book that were quoted that she now is not happy with? Mind you, this author never said she was unhappy with any part of the book or the way quotes were used before now and it has now been over two years since the publication/printing of her book. Does she actually have a claim?

There's not enough information here to comment on whether there might be a legal claim. One key issue is the content of the contract between the author and the publisher. What was agreed formally? Was anything agreed informally?

Hi there, I am publishing a book through a publishing company in the UK. There has been a recent lapse in communicate between the company and I. I am now being asked to pay £250 for the delay in communication. Is this legal? There has been no info about this in the paperwork given by their company. Any info would be appreciated!

A person cannot just claim money from another with no legal basis - at least, they cannot make a legal claim!

If you entered into a contract with the publisher, and you were obilged by that contract to communicate in some way with the publisher, and you breached that obligation, and the publisher suffered circa £250 of loss as a result of the breach of that obligation - then I suppose they might argue that they have a right in damages here.  However, that sounds like a pretty thin sort of claim.

Another possible basis would be a contractual payment, where the contract you entered into express provides for the payment obligation in the event that you don't communicate in the requisite way.  However, if this wasn't mentioned in the contractual documents you have seen, it very probably was not part of the contract.

Generally, this sounds like an unreasonable demand. It might however be a good idea to get someone else to review the contract documentation before making a decision about what to do here.

I want to compile a book made from interviews with consenting parties. It would be a non-fiction. What kind of legal things should I be aware of? I.e, do consenting parties need to sign some kind of release etc? Are they due royalties? 

It is often a good idea to get interviewees to sign a release or consent of some kind. This is especially important where you will be using text or images the copyright in which is owned by the interviewee (or a related person), or where the subject matter of the interview is controversial or sensitive, or where the interviewee or another person could suffer harm as a result of the publication. The potential legal issues are too many and too complex to usefully summarise here, but may include: copyright and other IPR infringement, defamation, privacy / confidential information / data protection, and contempt of court.

Hello,

I have an idea for a book, mainly illustrative, but I am not an artist nor a publisher and have no experience whatsoever in producing books. 

Can you provide any advice or guidance on where to start / who I should talk to / what I'd need to do?

I am also concerned that if I make my idea known and discuss it with someone, that someone could take my idea and produce a book before me. 

How do I protect my idea?

Thank you very much for your help. 

Sarah 

Hello,

I have been publishing online journal for quite some time, and one of my main contributors started to ask me to change his old articles, to make them better. It started with changes coming in a week or so and I, from the good faith, approved, but now he is asking to change articles published a few months ago.

Could there arise any legal problem, as, e.g., with the public information act?

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