A Publisher's Conversation with Authors: Copyright Infringement, Part 1

  

It is Tuesday. Monday's madness is over, and Wednesday will take us over the hump, so Tuesday it is--for some serious discussion with authors. Tuesday talks mean to address authors in waiting and self-published authors who would like to go a more traditional route or who would at least like to take their steps with a publisher by their side.

Today's post looks at copyright infringement from the point of view of authors who might accidentally infringe upon the copyright of authors. (This is Part 1 of two posts, the second post being about others' violation of authors' copyright.)

What constitutes copyright infringement?

For text: 

Copyright infringement occurs when a copyrighted work is used without the permission of the copyright owner. This can include:

1. Reproducing the work.

2. Distributing copies of the work.

3. Performing the work publicly.

4. Displaying the work publicly.

5. Creating derivative works based on the original.

Essentially, any unauthorized use of a copyrighted work that violates the exclusive rights of the copyright holder constitutes infringement. Here are some helpful websites for more information: www.investopedia.com, www.law.cornell.edu, www.copyright.gov.

For citations within a text:

When it comes to including citations of others' works in an author's book, the concept of fair use plays a crucial role. Fair use allows limited use of copyrighted material without permission under certain circumstances, such as criticism, commentary, news reporting, teaching, scholarship, and research. However, there are no hard and fast rules about the exact amount that can be cited without permission. Some sources say 100 words; others say 300 words. Here are some key factors to consider:

1. Purpose and Character of Use: Non-commercial, educational, or transformative uses are more likely to be considered fair use.

2. Nature of the Copyrighted Work: Using factual works is more likely to be fair use than using highly creative works.

3. Amount and Substantiality: Using smaller portions of a work is more likely to be fair use. However, even a small portion can be infringing if it constitutes the "heart" of the work.

4. Effect on the Market: If the use negatively impacts the market for the original work, it is less likely to be considered fair use.

Here is what the Library of Congress has to say about fair use: 
https://www.copyright.gov/help/faq/faq-fairuse.html.

When mentioning real people in texts or books, authors generally do not need permission if the content is factual and not defamatory. However, there are some important considerations:

1. Defamation: If the content could harm someone's reputation, it could be considered defamatory. Authors should ensure that their statements are true and not misleading.

2. Right of Publicity: This protects individuals from unauthorized commercial use of their name, image, or likeness. This is more relevant for advertising or promotional purposes rather than in books.

3. Privacy: If the content reveals private facts about someone that are not of public concern and would be offensive to a reasonable person, it could be considered an invasion of privacy.

4. Fair Use: For public figures, there is more leeway in discussing their actions and statements, especially if the content is newsworthy or of public interest.

For example, mentioning a public figure in a historical context or discussing their public actions is generally acceptable. However, portraying someone in a false light or revealing private information without consent can lead to legal issues.

For graphics:

When it comes to using graphics, the rules for copyright infringement are similar to those for text. Here are some key points to consider:

1. Fair Use: Just like with text, fair use can apply to graphics. This includes using graphics for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, the same factors (purpose, nature, amount, and effect on the market) will be considered to determine if the use is fair.

2. Permission: If you want to use a graphic that is not covered by fair use, you should seek permission from the copyright holder. This often involves contacting the creator or the organization that owns the rights to the graphic.

3. Creative Commons: Look for graphics that are licensed under Creative Commons. These licenses allow you to use the graphics under certain conditions, such as providing attribution to the creator.

4. Public Domain: Graphics that are in the public domain can be used without permission. These are works whose copyright has expired or that were never copyrighted.

5. Attribution: Even when using graphics under fair use or Creative Commons, it's important to provide proper attribution to the original creator.

When using graphics that include recognizable people, there are additional considerations to keep in mind:

1. Right of Publicity: Individuals have the right to control the commercial use of their name, image, and likeness. Using someone's image without permission for commercial purposes can lead to legal issues.

2. Model Releases: If the graphic is used for commercial purposes, it's generally necessary to obtain a model release from the person depicted. This is a legal document granting permission to use their image.

3. Privacy Concerns: Even if the use is non-commercial, there may be privacy concerns, especially if the image was taken in a private setting or if the person has a reasonable expectation of privacy.

4. Fair Use: In some cases, the use of an image of a recognizable person may be considered fair use, particularly if it is for news reporting, commentary, or educational purposes. However, this is a complex area of law and should be approached with caution.

5. Public Domain and Creative Commons: Images of people that are in the public domain or licensed under Creative Commons can be used more freely, but it's important to check the specific terms of the license.

For music:

When it comes to using music, copyright laws are quite strict. Most publishers will expect authors to get permission before citing any lyrics since lyrics go to the heart of the song which would indicate that this is not fair use. (Song titles, of course, may be cited and credited.) When in doubt, ask for permission, including when citing any lyrics at all. Music from Creative Commons licensing is a little more liberal, and music in the public domain can be used without permission.

What happens if you innocently violate copyright?

The difference between innocent violation of copyright and willful violation is one of degree and amount of "punishment" (fine). Ignorance of the law does not protect the violator. However, the amount of fine will be substantially lower, sometimes as low as $200 per instance. The fine for willful violation can be severe, up to $150K per instance. 

There are several factors that are considered when setting the fine: actual damages, financial gain, and statutory damages. Actual damages are based on the provable financial loss by the copyright holder. Financial gains achieved by the violator are taken into account. Statutory damages are set amounts defined by law, typically between $750 and $30,000 per instance for innocent violation, up to $150K for willful infringement.

What if you innocently violent someone's copyright?

If you find yourself in a situation where you've innocently violated someone's copyright, here are some steps you can take:

1. Stop Using the Infringing Material: Immediately cease any use of the copyrighted material to prevent further infringement. Pull your books from the market (sometimes that is not as easy as it might sound because books that have been sold are hard to find; the reasonable approach is to pull them from the distributor's catalogue and purchase remaining inventory from booksellers where known).

2. Contact the Copyright Holder: Reach out to the copyright holder to explain the situation and seek permission to use the material. They may grant you a license or provide guidance on how to proceed. You can also ask for retroactive permission. If you do not receive that, you may need to prepare a second edition (both in the case of permission received but not retroactively and permission not received at all); sometimes there is no response to a request for permission -- the safest approach in that case is to treat the material as being unavailable for use (you might be able to make a case for using it since you were not told "no" -- somewhat risky).

3. Remove the Infringing Content: If the material is posted online, remove it from your website, social media, or any other platform where it is accessible.

4. Offer Compensation: If appropriate, offer to compensate the copyright holder for any losses they may have incurred due to the infringement.

5. Seek Legal Advice: Consult with a legal professional to understand your rights and obligations. They can help you navigate the situation and avoid further legal issues.

6. Educate Yourself: Take this opportunity to learn more about copyright laws and how to avoid future infringements. This can include understanding fair use, obtaining proper licenses, and respecting intellectual property rights.

Taking these steps can help mitigate the impact of the infringement and demonstrate your good faith effort to resolve the issue.

Bottom line: Always ask permission when in doubt or potential copyright infringement is unclear.

See more Publisher Conversations with Authors HERE.

• Learn more about publishing from an acquisitions editor -- how to get your book proposal accepted, why proposals are turned The Tuesday talks reflect real discussions between the management of MSI Press LLC and our own authors or those would-be authors who come through our doors but don't make the cut--yet. If you have a topic that you would like addressed, leave the question in the comment section. Chances are, in our 18 years of publishing first-time and experiences authors, we have had a conversation with one of our authors that we can share with you.                           Sign up for the MSI Press LLC monthly newsletter (recent releases, sales/discounts, awards, reviews, Amazon top 100 list, author advice, and more -- stay up to date)   Follow MSI Press on Twitter, Face Book, and Instagram.  Interested in publishing with MSI Press LLC?  We help writers become award-winning published authors. One writer at a time. We are a family, not a factory. Do you have a future with us? Turned away by other publishers because you are a first-time author and/or do not have a strong platform yet? If you have a strong manuscript, San Juan Books, our hybrid publishing division, may be able to help. Check out information on how to submit a proposal. Planning on self-publishing and don't know where to start? Our author au pair services will mentor you through the process. Interested in receiving a free copy of this or any MSI Press LLC book in exchange for reviewing a current or forthcoming MSI Press LLC book? Contact editor@msipress.com. Want an author-signed copy of this book? Purchase the book at 25% discount (use coupon code FF25) and concurrently send a written request to orders@msipress.com. Julia Aziz, signing her book, Lessons of Labor, at an event at Book People in Austin, Texas. Want to communicate with one of our authors? You can! Find their contact information on our Authors' Pages. Steven Greenebaum, author of award-winning books, An Afternoon's Discussion and One Family: Indivisible, talking to a reader at Barnes & Noble in Gilroy, California.     MSI Press is ranked among the top publishers in California. Check out our rankings -- and more -- HERE.