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

Dear Alasdair

I was wondering if you could help me please.

Can you sue an online review website for publishing blatent lies or repeating false or unproven and damaging accusations about you or your business (in the UK?)

Thank you,

Kind regards

Stephen

Hi Stephen - Whether any particular set of circumstances give rise to a right to sue is a complex question, requiring a full analysis of all the relevant facts.

Bearing this caveat in mind, if the untrue statements are being published in the UK, and if they are likely to materially damage your reputation or that of your company, you may have a right to bring proceedings for defamation in the UK courts. If the statements were published maliciously ,you may have a right of action in the tort of malicious falsehood (e.g. slander of goods).

If the review website has not itself produced the offending content - if it was posted by a user - the website operator may have access to defences under Section 1 of the Defamation Act 1996 and/or Regulations 17-19 of the Electronic Commerce (EC Directive) Regulations 2002.

If the organisation or individual running the online review website is not based in UK or does not have significant assets, then it may be harder to pursue / commercially justify legal proceedings.

As you can probably tell from all these "ifs", this is the sort of question that cannot be properly answered without all the facts.  I suggest that you contact a defamation lawyer to discuss the situation.  If you need details of an appropriate person, please let me know.

Hi Alasdair,

Does the author or publishing house have to advise or gain permission from a victim's family when writing about an event and publishing photos of the victim? Victim is no longer with us.

Thank you

Sam

Without knowing all the details, the best I can do is give some vague guidance.

There's no general rule of law that requires the families of victims (of crime?) to give their consent to reports of an event (the crime?) involving the victim. However, there are some specific laws that could come into play, depending upon the details. For example:

  • Copyright in photographs - does a member of the family own the copyright?
  • Does Section 85 of the CDPA apply to the photograph? This creates right of privacy in some photographs.
  • The right privacy - could the family's right to a private life be infringed by the publication?
  • Could the report be considered defamatory of anyone other than the victim (you cannot defame the dead)?
  • Is contempt of court a potential issue (obviously this one has nothing to do with family consent)?

The application of these and other laws really does depend upon the specifics.

 

Hello Alasdair,

I wrote some articles for a magazine and was never paid for the work. 

No written contract was ever put in place, but a verbal agreement was made and subsequently not honoured by the publisher.

Can I publish these articles on my own website without the permission of the magazine publisher?

Hi Jon - thanks for your question.

While your contract with the publisher remains in place, the question of whether you can publish the articles without permission depends, most likely, upon whether the licence you granted to the publisher was exclusive or non-exclusive. If there was no written contract, it might be that you and the publisher did not agree the nature of the licence. In that case, a court would look at the surrounding cirumstances, and in particular standard industry practice and any past dealings between you and the publisher to determine whether the licence was exclusive or non-exclusive.

(Note that while an "exclusive licence" within the meaning of the CDPA 1988 has to be in writing, that doesn't mean that you can't have an unwritten licence that is exclusive in the ordinary sense.)

Probably a better approach - I can't be sure without knowing all about the circumstances - would be for you to terminate the contract with the publisher on the grounds that, by not paying you, the publisher is in fundamental breach of that contract. Termination would usually be effected by written notice. If a publishing contract can be successfully terminated then, usually, the author will be free to exploit the work without restriction. Again, however, it depends upon the terms of that contract, which of course might need to be implied by the court.

If you did breach an exclusive licence by publishing the article, then one standard measure of damages would be a reasonble licence fee. If you could persuade a court that a licence fee was in fact payable and unpaid under the agreement, it is hard to believe that a court would be very impressed by a claim from the publisher.

If on online publisher publishes an author's work and that turns out to contain potentially libellous material, who get sued? The author, or the publisher (company or owner?) or both?

thanks!

It depends in signifcant part upon whether the online publisher is a publisher in the traditional sense - i.e. one that takes editorial responsibility for the publication.

Is that the case here, or is the publisher merely providing the tools to enable publication?

Hi Alasdair,

Thanks for getting back. In this case, the author has signed over his rights to the work to the publisher for a fee, and then the publisher has published the vroom as one of a series under their rubric, but with the author still named. The publisher is more of a conventional publisher in this case, like a magazine, publishing authored features. Does this come down to the disclaimer published at the start of the book?

thanks!

Jon

In general, both the author and the publisher of a libellous work may be sued - but the publisher usually has more money and is usually therefore the first port of call for a litigant.

Libel disclaimers ("all characters are fictional" etc) are commonplace, but such disclaimers are only likely to be material in those cases that turn on the question of identification (does the defamatory statement relate to the claimant), and even then only in marginal cases.

Hello

In a recent local news paper they have put a photo on the internet with my car and the number plate is in full view the story does not relate to me and I feel this is a invasion of my privacy.  Can I take any legal action to get this picture removed from the internet as it suggests a link between me and this story?

Thanks

Kate

Have you asked them to remove the photo or obscure the number plate?

What was the news story about and how might it cause you loss/damage?

Hi i hope you can help

Is there a requirement in the UK to register magazines before you can freely distribute it?

Thanks

There's no licensing requirement as such in English law, although there are various regulatory issues you should consider (e.g. notifying HMRC of a new business, legal deposit of publications with the British Library).

Gentleman,

I have the Idea to create a magazine in England for a different market, being a non-British can you please advise how to find a permanent legal and accounting advisor.

thank you

you could try the Law Society lawyer finder:

http://solicitors.lawsociety.org.uk/

 

Dear Alasdair, I hope you are well!

I am highly annoyed with the lack of customer service provided to me by a retail giant. Being insignificant, there is little I can do as they hide behind the innumerable clauses in their Ts&Cs, to which I agreed when making an online purchase.

As a very small gesture of "a woman scorned" let's call it, I would like to do 2 things:

1- Request that under the Data Protection Act they provide me with all the information they hold on me, and that they delete all this information from all their records, including my online account.

2- Inform them that I can and will provide all my communications with them to any publishing media as I deem appropriate, that they do not have the same right because I do not give my consent, and that I myself will take every opportunity to post negative feedback about this retailer, as well as encourage and support any media coverage of the poor service provided by this retailer. I wish to do this without giving them recourse to me about defamation or giving rise to any liability to myself.

Is this possible? Please help!

Thank you so much!

Kindest regards,

Sophia-Anna

The rules on data protection subject access requests don't limit the purposes for which they may be used, and I don't see any problems with your suggested request.

There's currently no "right to be forgotten" in EU data protection law. That said, in some circumstances the application of the basic principles of data protection law may require account  deletion. If processing (which includes storage) is based on consent, and there is no other legal basis for processing, then the withdrawal of consent should result in the end of the processing: ie deletion of the data. Also see principle number 5: "Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes". Certainly, there's no harm in asking.

Assuming the content of your communications to them isn't legally problematic (e.g. defamatory, in breach of copyright, in breach of confidence) then publishing that should be OK too. However, if you want to avoid legal risks, you shouldn't publish their communications to you.

Posting negative feedback isn't usually a problem, unless it constitutes libel or malicious falsehood / slander of goods. For general guidance on libel, see:

http://www.seqlegal.com/blog/10-things-you-should-know-about-libel

NB the law on libel will be changing very soon, when the Defamation Act 2013 comes into force, at which point parts of that post will become out of date.

I just want to know whether the agreement between an author and a publisher would be a franchise or a licence?

There are two main approaches to the treatment of copyright in an author agreement. First, a licence may be granted to the publisher, enabling the publisher to exploit the work. Second, the copyright may be assigned to the publisher, so that the publisher become the owner of the copyright.

However, while an author agreement may include a licence, it should include other elements as well: delivery obligations, quality standards, marketing obligations and so on.

A franchise is something quite different.

Good day.

A book written in South Africa that used my real name and contains intimate knowledge about my life is now going to published in the UK by a UK publisher.

When it was first published in South Africa I gave permission for my name to be used. Now circumstances have changed and I do not want my real name to be used. Surely the publisher in the UK should get written permission from me to use my real name?

I am referring to a non-fictional book.

Any advice would be greatly appreciated.

Thanks.

Did you give the original permission for your name to be used in writing, or just in conversation?

My children's names and illustrations are being used for characters in videos online on YouTube, and in a book that is set to be published this year. I have not consented to this, and would not. There are also illustrations of photographs of myself being used. The person in question has been making money from these on YouTube. Do I have any legal rights here? Many thanks

Would I be right in assuming that these are illustrations of your children, rather than by you children?

Assuming that is right, would a person be able to identify your children (or you) from the illustrations in combinations with the names?

Hi,

I was wondering, if I were to write about my life and get it published into a book, would I have to change the names of the real people that are still alive or could I be sued? These people are past or former families, partners etc

Thanks

Keeley

Whether there is a real risk of being sued in relation to a biography depends upon what you write. Some types of biography (eg misery memoirs) tend to attract libel actions. Simply changing names may not avoid this risk. Depending upon your content, there may also be other types of legal risk, such as contempt of court, copyright infringement, breach of privacy and so on.

Hello, I realise this is an old thread. I appreciate any help or advice!

I have recently taken over the publication of a small UK independent magazine. We do not pay our writers, which is agreed verbally and via emails, and stated in our submission guidelines on our website. We request that wirters do not re-publish any of their articles elsewhere within one year and then after that only with our permission and with a byline credit.

My main question is: do we have the right to reproduce material we publish under this arangement? We would like to have the option to create compilations and 'best of' editions both digitally and in print and I am wondering if we retain reproduction rights?

Thank you.

Where a licence of copyright is not set down in writing, there is rarely a clear answer to this sort of question.

If you have a course of dealing with a writer and it has previously been the case that you were granted a certain right, then that may imply that the same right is granted again in subsequent situations. If normal industry practice is such that a certain right is usually granted, then again that right may be implied into the licence. You need to look at all the circumstances (including the content of the emails and conversations) to make a judgement.  And inevitably, that judgement will be somewhat uncertain.

In future, you should specify in writing the rights that the writers are granting to you.

Hello

A pamphlet is being distributed door-to-door. Does that make it a publication? And is there a requirement for the publisher or author to be identified?

In respect of which area of law (eg libel, copyright) does the question of whether it is a publication arise?

There is no general legal obligation for publications to identify and author or publisher, but there are special rules for particular circumstances.

Well, either copyright or libel!

If it's anonymous, how can the law act?

It's certainly a publication for libel purposes.

Of course, the author, producer and distributor really are anonymous, it will be difficult to bring legal proceedings against any of them!

Does a publisher (for commercial gain) need the consent of living people who are in photographs he wishes to publish?

There exists a situation where an individual, somewhat covertly through social media, obtained names & details of vintage photographs with a view to selling them online. This has upset a number of people featured in the photos, and they wish for this not to happen.

If consent is not required, can royalties be claimed (as a deterrent?) Or is it a lost cause?

Thank you

Depending upon the nature of a photographic image of the person and the circumstances of its publication, there may in principle be a breach of the Data Protection Act 1988 or an infringement of confidentiality or the right of privacy.

These arguments were famously made in the Campbell v MGM case. For a summary, see:

http://www.5rb.com/case/campbell-v-mgn-ltd-ca/

You will need to ask a lawyer to consider the specifics here to get a definite (or more definite) view.

Even if there is a breach, royalties won't be recoverable (assuming there are no copyright infringements), but damages might.

Dear Alasdair 

Is it ethical or legal for a publishing company to publish fake data and information within educational resource books created for schools and education organisations? 

What sort of data and information? In what sense is it fake? And for what purpose is that data and information being used in the resource books? Is there / could there be a special disclaimer highlighting that the data and information is fake?

Printing incorrect middle names, getting birth year wrong, getting sequences of events wrong.  Then reprinting the information twice more in later editions of the series of books and still having the information incorrect. The books are suppose to be a educational resource book and advertised as a reserach aid to check background information. 

If, for example, the fake information caused damage to someone's reputation, there might be an actionable defamation.

However without knowing all the details, I can't give a definitive answer.

On the whole it seems that it is unlikely that the publisher's actions are illegal or otherwise actionable.

Sorry last question,  when you say causes damage to someone reputation, can you be more specific?  By changing a person personal profile, implying that they have lied, creating doubts and gaps within their work history, is that considered damaging someone reputation? 

Dear Alasdair,

I have a contract with an academic publisher who have still not published my book, now over 2 years after the time agreed in the contract. They do not respond to emails.  Can I threaten to sue them? Thank you so much for your help!

If the requirement to publish within the relevant period was clearly stated in the contract, then you should certainly consider threatening them with legal action - but it may be difficult to make a threat sound credible without asking a solicitor to write the letter for you, and if they are not even responding to emails I'd be surprised if this would have much effect.

I have changed my real name to protect my identity. I have just self published a book in the category of general fiction but it is in essence a misery style memoir about a real family. Most events and characteristics in the book are real. All names and occupations have been changed.

One of the characters has identified himself and is making threats about defamation by anonymous text saying he will get a lawyer onto me and I will lose everything. He has a mental illness and tried to bring his father's business down. I think he is acting maliciously not out of any genuine harm to himself from my book. He only stumbled across my book by accident when I accidentally sent him a linked-in invitation. My book has only sold 18 copies. It is not going to be in any book shops; just on Amazon. Your advice would be welcomed. 

Sorry, but I would need a lot more info about the book and your particular circumstances in order to give any advice here, and as a result I cannot provide this sort of advice via the website.

Hello Alasdair,

I am chair of a regional professional body and a committee of my members is organising a short newsletter to send by post to about 60 member organisations?  I have a printer, but do I legally need a publisher? If so can the publisher be the 'Communications Committee'?

There is no general English law concept of a publisher (although the concept does exist in particular areas of law, eg defamation), and there is no special permit or status required in order to produce, print and distribute a newsletter or other printed work.

You can specify that a committee is the publisher, but assuming the committee doesn't have any separate legal identity that would not take legal responsibility for publication out of your (and presumably the other committee members') hands.

Hi Alasdair,  

My ex-wife wrote a book about the circumstances around the death of our eldest son from cancer. I also wrote some parts in it and some of my photographs were used; I was never asked to sign anything to do with this. The book was published and my name taken off while I was in a rehab centre recovering from alcoholism. I came out and discovered all this and that the book had been published. Over the past 3 years people who have been spoken of in the book (whose names were changed but everyone knows who is being referred to) have approached me saying they not happy with her portrayal of them.  My mother has also only recently told me she is deeply upset by this book and fears her grandchildren will believe things written about her. It has taken me all these years to finally bring myself to read this book and I now would like to know where I stand legally in getting this off the shelves. The book is available on Amazon, WH Smith etc .

Yours sincerely,

Lev

There are a range of different legal issues here. For example:

  • To what extent do you retain control over your copyright in your contributions?
  • Is the book defamatory of you or anyone else mentioned in the book?
  • Have any rights of privacy been infringed?
  • Have you consented the publication of otherwise actionable material?

It's not possible to give any sensible advice on these issues without a review of the book and a good deal of background information - in other words, you need a solicitor.

Getting a publisher to withdraw a book is not easy. This type of book is - if published by one of the big publishers - likely to have been subject to a pre-publication legal review. The publisher may already have taken the view that the financial benefits of publication outweigh the legal risks. Material considered especially risky may already have been removed from the book or modified.

You should instruct a specialist solicitor to write to the publisher, setting out the legal basis of your objections to the work. If you would like the name of a solicitor who may be able to help, please send me an email or contact me via this website's contact form.

Hi Alasdair,

In December 2013 I submitted an article to an academic journal, which was accepted after the usual review process in 2014. I signed a publishing agreement in October 2014. 

I’ve found out that the issue was published last week, but the publisher has backdated the issue so that it looks like it was published in October 2013, before I’d even submitted the article, never mind signed an agreement!

That publication date has serious consequences for me and all other UK-based contributors to the issue as it would render our articles ineligible for the next REF, even though the publication date is a total fabrication.

Surely they have no right to do this? 

The question (for an English lawyer at least) isn't whether there is a right, but whether there is a prohibition.

Does the publishing agreement you signed say anything (or imply anything) about the publication date?

If there is nothing helpful in the agreement, another approach would be to look at whether the backdating amounted to a negligent misstatement or a malicious falsehood.

There may be other potentially relevant torts, but I cannot think of any right now.

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