This is part 2 in our series about the legal considerations of publishing a book. There are many parts that have a legal aspect, from titles to publishing and everything in between. If there is something we haven’t touched on, please contact us and we will add it.
Now that you have your book title and subject matter taken care of you naturally start thinking about “How am I going to get this book published?”
One of the most popular ways is through a self-publishing service company (SPSC). If using an SPSC, you should do your research and find a reputable company. Also, review the agreement that they give you closely. Better yet, have an intellectual property law attorney review the agreement.
Will the SPSC own my copyright? No, they will not. Typically, the author should not transfer any rights to them except for the nonexclusive right to use the work to produce and distribute the works.
What about records? Make sure that you make files and keep good records. Important things to include are: (i) contracts, (ii) licenses (iii) financial receipts, and (iv) correspondence.
I plan to include third party material in my book. I think it is in the public domain but am not sure. If in doubt, ask for permission. That is always your best bet. Also, if you have a few references in your book that you would like to have checked out, then highlight them and ask an intellectual property attorney to review and give their opinion. This typically does not cost much and is well worth the money for peace of mind.
What is indemnification? Typically, the SPSC or other provider will include a clause within the contract they send to you to sign that states that you will indemnify, defend and hold them harmless from any claim of infringement, defamation and other claims. This means that if the company is named in a lawsuit based on any of your books, you have to hire and pay the attorney to defend them and pay damages if the case settles. In some cases, this can be a lot of money so you want to make sure that the book does not turn into a lawsuit.
How do I make sure that the book does not end in a lawsuit? There is no exact list but here are a few things to consider:
- Will you be using a character based on a real person? If so, make sure to mask identifying features. It is better if they do not recognize themselves.
- Utilize facts that can be verified. Defamation is defined as a false statement of fact. If the statement is true, then that is a defense. If you are concerned about a statement made about a person within your book, have an attorney review.
- Is your book based on a true story? If so, do you plan to stay close to the truth or stray away from it in the pages? If you plan to stay close to the truth, then you will want to consider getting permission from those that will show up in the pages.
Do I need liability insurance? You should certainly consider purchasing liability insurance since you will not be covered by a large company’s insurance policy. This is especially the case if you are not sure about permissions or are writing about a topic that is controversial or a story that is true or partially true.
We are not discouraging self-publishing, but if you decide to self-publish, it is important to be familiar with the legal considerations. And, again, please contact us if you have questions.
Next week we will post Part 3 where we will discuss using brand names in your work.