A Writer’s Guide for Avoiding Legal Issues

As a writer, there are legal issues – like copyright, trademark, defamation, and others – that you may encounter as you draft and publish your book or essay. As a publishing house that has helped authors bring their books to market, we provide them with this high-level summary of general United States legal principles for informational purposes only. In it we cover:

Keep in mind that laws in your state (or country) may differ, and this blog is not a substitute for getting legal advice. You should always reach out to a qualified lawyer with experience in media law and intellectual property issues, which can be complex.

Copyright

Copyright is a form of legal protection for certain creative expressions called “original works of authorship” in legal terminology. Examples of eligible works for copyright protection include novels, essays, newspaper articles, blog posts, poetry, song lyrics, films, musical recordings, photographs, and paintings. Because copyright requires a minimum level of creative expression, it does not protect ideas, fundamental scientific or mathematical principles, titles, names, short phrases or slogans, mere listings of ingredients, or common symbols or designs.

A copyright owner enjoys the exclusive right to reproduce the work, distribute it, display or perform it in public, and to create derivative works from it, as well as the ability to transfer any or all of these rights. Typically, copyright protection generally lasts for 70 years beyond the death of the original creator of the work. Copyright attaches when the work is in a tangible form, such as a book, newspaper, magazine, journal, electronic file, website, film, or canvas.

Getting Permission to Use Copyright Protected Material

When deciding whether to use work protected by copyright in your book or essay, the general rule is to seek appropriate permission from the copyright owner. If they grant permission, you will typically receive a license that clearly outlines how much of the work you can use, what you can do with it, how long the license lasts, and other terms and conditions. Some authors may be willing to grant you a license to use their work for free, but most will seek to charge you a one-time fee or royalties.

Keep in mind that the process for requesting and receiving permission can take time, and it’s best to start the process as soon as you determine that you would like to use any part of a work protected by copyright in your essay or book.

There are some circumstances where you might not need permission to use a creative work. The first is if the work is in the public domain because the copyright term has expired. Because it can be challenging to calculate the term of a copyright (particularly with older works), you might need to talk to a lawyer about this. The second is where the “fair use” defense applies, which is a legal doctrine that promotes freedom of expression by allowing the unlicensed use of copyright-protected works in limited circumstances. Whether fair use applies is a fact-specific analysis that considers four statutory factors that have been interpreted by courts over time. A qualified lawyer should perform this analysis for you. Finally, there are some creative works that are available for use under a “Creative Commons” license or on a “rights-free” basis. You may use these works in your essay or book if you comply with the terms set forth by the copyright owner.

Copyright Infringement

If you use copyrighted work without permission, you may be liable to the copyright owner for copyright infringement. In a copyright infringement lawsuit, the copyright owner can recover actual damages (such as lost profits) or, if certain conditions are met, statutory damages between $750 to $30,000 per infringement. If the copyright owner can prove the infringement was willful, statutory damages can be increased to as high as $150,000 per infringement.

Trademark

A trademark is a word, phrase, symbol, or another indicator that identifies the source or sponsorship of goods or services. Suppose an individual, business, or other organization uses a trademark to sell or promote its goods or services. In that case, it can gain trademark rights and may exclude others from using the trademark (or anything confusingly similar to it) under certain circumstances. Although it is possible to obtain federal trademark protection by registering a trademark with the United States Patent and Trademark Office, state law rights attach when a mark is used in commerce (and registration may not be necessary).  

A trademark must be able to indicate the source of goods or services. Examples of some well-known trademarks include:

Many trademarks use a stylized font (like the iconic “New York Times” masthead font) or graphic logo (like the Nike swoosh). Still, a trademark can also be plain text so long as the trademark owner uses it to identify and distinguish its products or services. In addition to logos, text, images, and symbols, other source-identifiers are eligible for trademark protection, such as colors (like the red soles for Christian Louboutin shoes), sounds, and fragrances.

Getting Permission to Use Trademarked Protected Material

As an author, you may use the owner’s trademarks so long as you obtain appropriate permission from the trademark owner. As with works protected by copyright, this would probably be in the form of a license with terms and conditions with which you must comply to use the trademark. If you do not have permission from the trademark owner, trademark law may limit your ability to use others’ trademarks.

As a general rule, you probably should not use a trademark as part of the title of your book or essay. This is because the trademark owner could argue that it is being used to indicate the source or sponsorship of your book. When it comes to the text of your book or essay, unfortunately, the law in this area is complex. The courts have consistently protected the unlicensed use of trademarks in clearly noncommercial contexts such as news reporting, scholarly commentary, and legitimate criticism. However, there is no straightforward legal test for when it’s permissible to use the trademark of another in a creative work like a fictional novel, and courts have applied inconsistent rules to these types of cases over time. Because of this, it can be difficult for a defendant in a trademark infringement lawsuit based on such use to get the lawsuit dismissed quickly or without incurring significant legal fees. This leaves authors vulnerable to cease-and-desist letters or trademark infringement lawsuits from overreaching trademark owners.

Trademark Infringement

Trademark law protects against certain types of unlawful activity. One is trademark infringement, which occurs when you use a trademark in a way that is likely to confuse the public about the source or sponsor of your products or services. Another is trademark dilution, which happens when you use a very famous trademark in a way that either weakens the strength of the famous trademark or tarnishes the good reputation of the trademark.

In a trademark infringement lawsuit, a trademark owner can recover disgorgement of the defendant’s profits, actual damages (like loss of business), a reasonable royalty based on the unlicensed use, attorneys’ fees, and court costs. If the infringement is willful, the trademark owner can recover extra damages as a penalty.

Use of Name and Likeness

In most states, you can be sued for using someone else’s name, likeness, or other personal attributes without permission. Other personal attributes include someone’s nickname, portrait, photograph, persona, voice, features, signature, or any other identifying characteristics. There are two distinct legal claims that potentially apply to these kinds of unauthorized uses:

Although there are some technical differences between these two claims, they are mostly similar, and this guide refers to them collectively as “misappropriation.”

Only human beings have rights of publicity and privacy interests that can be invaded by misappropriation. Thus, only individuals can sue for unlawful use of name or likeness unless a human being has transferred their rights to an organization. In most states, both celebrities and non-celebrities can sue for misappropriation as long as they can establish harm. Both minor children and adults are protected by these laws. In some states, the right of publicity expires upon the death of the individual. In other states, however, the right of publicity extends beyond death and may be enforced by the heirs to the deceased individual’s estate.

As an author, these laws may limit your ability to use the name, likeness, or other personal attributes of another individual. If you have appropriate written consent from the individual (or in the case of a minor child, the child’s parent or legal guardian), your use will likely be protected by law. You may not need consent from an individual if you use their personal attributes in legitimate and truthful reporting or commentary about matters of public interest. However, it is not always easy to determine what counts as legitimate reporting or commentary (and courts have not been consistent when evaluating these issues). Also, your reporting must bear a reasonable relationship to your use of the individual’s attributes.

In the context of fictional works, laws vary by state as to whether you can use someone’s name, likeness, or other personal attributes in creative works and other forms of entertainment. Some states allow using someone’s personal attributes in novels that include real-life figures, historical fiction, parody, and other creative works based on real life-events. Other states handle these types of cases on a case-by-case basis and look to whether the First Amendment overrides the individual’s rights of privacy and publicity. In other countries (particularly those in the European Union), citizens enjoy greater privacy and publicity rights, and courts take a much more restrictive stance on these issues.

Collecting Damages

Depending on where the lawsuit based on misappropriation is filed, an individual can recover his or her actual damages, any profits attributable to the unauthorized use of his or her name or likeness, punitive damages intended as a penalty, and/or attorneys’ fees and court costs.

Defamation

Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact. This includes libel (which is defamation in a written or recorded form) and slander (which is spoken defamation). The most important element of a defamation claim is falsity. Although a truthful statement will not create liability for defamation, the truth can be a difficult defense to prove in court, so you should take care not to include statements that might harm someone’s reputation in your book or essay. Moreover, you may be open to liability for publishing information that is highly personal or private in nature or casts someone in a false or embarrassing light.

Defamation is a state law claim, and the laws vary by state. Generally, to prevail in a defamation lawsuit, an individual must prove that the statement:

Some states recognize informed consent as a form of qualified privilege, which means that if an individual knows about the allegedly defamatory statements before publication and consents to their publication nevertheless, there is no liability for defamation. There are special rules that apply to certain types of defamation cases, so you should consult with a lawyer if you are considering publishing any statement that might harm an individual’s reputation.

Because of First Amendment protections for free speech and the press, speech involving public officials, public figures, or matters of legitimate public concern is subject to greater legal protection. An individual who files a lawsuit involving this type of speech will face a higher legal burden and must prove that the statement is false. If the individual who files the suit is a public official or public figure, he or she will need to show that the statement was published with “actual malice,” which is defined as knowledge that the statement was false or reckless disregard to the truth or falsity of the statement.

Collecting Damages

Depending on the state where the lawsuit is filed, an individual who prevails in a defamation lawsuit can recover actual damages, lost profits from harm to their reputation, damages for pain and suffering, the costs of their medical or psychiatric care if they suffered severe emotional distress as a result of the defamatory statement, and/or attorneys’ fees and court costs.

Other Publication Risks

There are other types of legal risks that apply to certain types of content. Although less common than those discussed above, you should consult with a lawyer if you think your book or essay might present any of the following risks.

Publication of Private Facts

This legal claim is a state law claim that is a type of invasion of privacy. You may be liable for this if you publish private facts about an individual that would be offensive to a reasonable person. Unless the facts are legitimately newsworthy, you should take caution when writing about someone’s private life (such as their medical or psychiatric conditions, finances, sex life, drug use, or other sensitive topics).

False Light

This is another state law claim that can be raised if you publish a statement about someone that casts them in a false or misleading light. This claim is similar to defamation (which is discussed above), but is designed to protect against embarrassment as a result of misleading information.

An example of a publication that might give rise to liability for false light would be writing about sexual harassment in the workplace and accompanying this with an image of a completely innocent person in a way that suggests he or she was involved in the harassment.

Contractual Restrictions

You may be restricted from writing about certain issues or information based on pre-existing contractual obligations. There are many different types of contracts that might contain these types of restrictions:

Trade Secret Law

This branch of intellectual property law addresses the protection of proprietary business information against unauthorized commercial use by others. Unauthorized publication of a trade secret might be considered misappropriation and can be the subject of either a state or federal legal claim.

Endorsements and Sponsored Content

The Federal Trade Commission is a consumer protection agency that regulates endorsements of products or services and content sponsored or paid for by an advertiser. If you include the content of this nature in your book or essay, you might need to have appropriate disclosures that make your relationship to the endorser or sponsor clear to your readers.

Share Your Story with Us

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