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

There is no general statutory regulator for UK publishers, but check what organisations the publisher belongs to, and they may have a complaints procedure you could follow. For example, to complain about IPSO members (most UK newspaper and magazine publishers) see: https://www.ipso.co.uk/complain/

In addition, complaints about specific types of issue may be made to the body responsible for those issues. For instance, data protection complaints can go to the ICO (https://ico.org.uk/make-a-complaint/), while advertising-related complaints can go to the ASA (https://www.asa.org.uk/make-a-complaint.html).

Hi Alasdair

The time you give to offer your expert advice here to all us non-legal experts is really admirable and it’s a great credit to you - thanks.

My question relates to a conflict of interest.

I am a self-published author. After being asked to complete an author questionnaire by the commissioning editor of a well-known UK publisher in consideration of them acting as the publishers of my book, I discovered very recently that my only competitor, who has previously written a biography on the same subject (a person). has one of his previous books (written in the same genre - a historical biography), already in this same publisher's portfolio.

At the time of my completing the questionnaire I was unaware of this and the questions required a number of answers that compared my book to the competing author’s publication. Naturally I went to town listing why my book was better and a list of events/stories that my book includes that my competitor missed along with a list of dates/facts that are written in error in my competitor’s book. My book had already been published back in August 2018 and I’d sent the commissioning editor a PDF version of the book in mid-May 2019. The print run of my first edition sold out and had generated excellent reviews so I am now writing up a second edition after discovering new material. This too was conveyed in the questionnaire and I put a lot of effort into writing my pitch, quite frankly because it’s been too difficult distributing it myself.

After returning the completed questionnaire, the commissioning editor confirmed she’d be going into a meeting the following week and would come back to me after discussion with her colleagues. 

After a week of not hearing back I sent an e-mail for an update and now, over three months later and after several phone calls to the publishers and a number of e-mails, she has still not replied. 

If the response had been in the negative then I’d have been fine with it - that’s the nature of the beast when a book is being considered but I’ve heard nothing and it became evident that she was avoiding any contact with me whatsoever. 

Maybe I’m putting 2+2 together and coming up with five but I smelled a rat after recently discovering my rival author is already one of the company’s clients and has been for around 18 years. I never divulged the nature of my relationship with the rival author who openly attempted to discredit me to his followers in a facebook post for having written a book on the same person.

I hear now that he is bringing out a new edition of the book which I’m obviously keen to read. 

I have experienced open discrimination and have been given the cold shoulder within the book industry because I have had the gall to write a book on the same subject as this best selling author and now I have my suspicions that there is a connection to the commissioning editors refusal to correspond with me.

My question is: should the commissioning editor have declared a conflict of interests before I submitted information requested of me? Had I been aware he was one of their authors I would never have submitted the answers asked of me. 

I’d be so grateful for your advice on the matter.

I submitted an article for publication in a journal over 24 months ago. The editor got in touch about 18 months ago to say my article had been accepted for publication. Furthermore, I received an email in February saying: "your paper is fixed for certain, for issue 3 of this year ... I have submitted the delivery sheet to ... with your name and paper title on it. This process is virtually irreversible and so we are locked into this commitment".

Now issue 3 of the journal has been released and it turns out that my article hadn’t been published. I have emailed the editor to find out the reason why my article was not published, they have read my email but failed to reply.

Do I have any grounds against the editor/publishers of the journal for what clearly appears to be a breach of their commitment to publish my article?

Whatever the legal rights and wrongs here, it is doubtful that it would be worth pursuing any legal action, given the costs - in time and stress, as well as money - of doing so. You might however want to formally terminate the journal's licence to use the article.

To provide any further guidance I would need to know: what type of journal is this and what type of article? Was the article originally sent on a purely speculative basis? Have you lost out or suffered any financial or other damage as a result of the failure to publish?

Holland & Holland in 1996 republished one of my father's books. I am the sole remaining member of my family. My father died in 1970. I know that no other member of my immediate family gave permission. What recourse do I have?

The first thing I would do in your position is to try to find copies of any contracts between your father and the publisher, and see what they say about: (i) ownership of copyright in the book; and (ii) any licences granted under that copyright.  Do you have copies of any such contracts?

Hi, I'm writing an autobiography which contains events of other people who were implicated in the event. These people falls in two categories 1) celebrity and 2) non celebrity. An example would be Bill Gates for celebrity and 2) non celebrity would a formal girlfriend of whom is not known yet to the public. Can i publish events that have happened with the celebrity and the non celebrity that have occurred with me? What are the limitations to the kind of content i can publish about each? My content may exist in the following variant 1) the events describing the interaction of the celebrity with only me. 2) the events describing the interaction of the celebrity with a non celebrity of my list. Can I obtain permission to publish their content? If so, how would I go about it?

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