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

Hi Alasdair,

I have written a chapter for an edited academic book. Its principal topic is the history of an English company and the growth of one of its brands in particular. In the chapter, I would like to refer to several advertisements produced by the company and include these as figures if possible. I have spoken to the company's legal counsel regarding use of the images. They are happy for me to use them providing the publisher signs an agreement that references to the brand and the advertisements will be used only "in a factual sense" and that the brand will not be "denigrated" in the chapter. They also want the publisher to agree to submit the chapter to the company before publication, presumably so they have a right to pull the images and references to the brand if they think these are "denigrating".

I appreciate the company's ownership of the images and their right to refuse copyright permission for these. However, I am surprised they also demand to be able to check over references to the brand. If the chapter was published without the advertisements but with commentary on the brand that was "critical" only in a strictly academic sense, would I/the publisher be taking a risk, or would we be protected by some version of "honest opinion"? The chapter does not set out to be a hatchet job, but it also not a hagiography. It is rather done in the spirit of free academic enquiry. To use a basic example, the chapter might note the obvious sexism of a particular advert, albeit one published in the 1960s. Do I really need to seek the permission of the brand's owner to make this observation in a published work?

Your thoughts would be most appreciated. Thank you for running this helpful page and continuing to respond to enquiries.

Thanks for your question John.

It's been a while since I have looked in detail at the "fair dealing" exceptions which can protect against copyright infringement under UK copyright law in these sorts of circumstances, and so can't give any definite guidance without some research.

You should  have a look at the "fair dealing" exceptions, and fair dealing for the purposes of criticism or review in particular. Depending upon the circumstances there might also be arguments to be made under the news reporting and/or new quotations exceptions. See:

http://www.legislation.gov.uk/ukpga/1988/48/section/30 (note the recent changes, not yet incorporated into the main body of the section)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil...

http://www.dacs.org.uk/knowledge-base/factsheets/fair-dealing (for background - this doesn't take into account the new exceptions)

Regarding libel and corporations, there is now a useful limitation on their right to sue, set out in s1 of the 2013 Defamation Act.  See:

http://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted

Hiya, I was just wondering if I was to publish a play or book in which another person helped create small sections would they need to be involved in the publishing process too and, if so, to what extent?  I wrote the vast majority of it and purely don't want all my work to be said to be theirs. ty

If the contribution of the other person was (a) of the right type (eg writing text); and (b) sufficiently substantial (ie more than short banalities), then it is likely that they would need to be involved in the publishing process, at a minimum by granting you a licence relating to their work that permits you to seek a publisher etc. You might also want to ask them to waive any moral rights they may have in relation to their contribution.

Greetings!

I wrote several articles for an online magazine, which also printed a 'best of' edition quarterly.  My contributions were unpaid, and there was never any contract, written or verbal.  Do I have the right to submit these articles to other publications for publishing?

Thanks ever so.

If this is a question determined by English law, then more likely than not you retain ownership of the copyright in the articles and have not granted an exclusive licence. In other words, you do have the right to submit the articles to other publications.

However, I'm hesitant to go beyond "more likely than not".

Why not ask the online magazine this question? Perhaps you think there is a risk of them saying "no"? If you think there is such a risk, why do you think that?

There may be some specific relevant factor that you haven't mentioned. For example, it may be the magazine's published policy that rights are exclusively granted. Or exclusivity could be an industry norm in your field, to the extent that some degree of exclusivity might be an implied term of the licence.

Even knowing all the circumstances, I might not be able to give you a 100% definitive opinion. Generally, it's best to have a written contract in these situations.

What are the legal boundaries/restrictions when it comes to repurposing content, such as newspaper articles and blog posts, into audio form for a podcast? 

Reading the text from a newspaper article or blog post and creating an audio file of this would - in the absence of permission or one of the copyright defences applying - usually be copyright infringement.

Sorry, what are the "copyright defences"? Thanks for the reply. 

Hello Alasdair,

I am a YouTuber and Blogger. For a new series on my channel, I would like to use images of fashion items, cut out of magazines, and talk about these.

I would like to know if I am legally allowed to show images I have cut from the magazines, and then potentially make money from these videos. 

Thanks,
Emily 

Hi Emily - This may well infringe copyright in the images. Depending upon exactly what you are doing, you may sometimes be able to rely upon the "fair dealing for the purposes of criticism and review" defence. However, even where the defence might be available, there is usually a lot of uncertainty about what exactly it covers. Might you be able to get permission to use the images?

Also consider: http://www.seqlegal.com/blog/product-photography-and-copyright-law

Hi Alasdair,

Thanks so much for your reply. 

I think I will try to get permission to use the images, or re think my ideas! 

Emily

Hello, I would like to know if I can stop a newspaper form publishing a news article where still the court has yet to give its final decision.

The law on the reporting of ongoing court cases is somewhat complicated.

For general background, see:

http://www.bbc.co.uk/academy/journalism/article/art20130702112133645

For an outline of the law, see:

http://www.cps.gov.uk/legal/a_to_c/contempt_of_court/

As you can see, it's not possible to say whether any given reporting is lawful without lots of information. Accordingly, you would need to discuss the specifics of the situation with a suitably qualified lawyer in order get an answer to your question (although even if the reporting is prohibited, enforcement may be a matter for the authorities rather than you).

Hi,

My daughter sadly passed away March 2014. I recently spoke to a newspaper to create awareness of Toxic Shock Symdrome.  My daughter died as a result of a bleed to her brain following sepsis, there is no medical evidence to suggest she died of TSS due to using tampons. However, she had the same strain of bacteria in her blood that is connected to TSS.

Since the initial article, other publishers have used it and published on line and in the paper about my daughter.  One in particular has taken photos from my Facebook of my daughter and another little girl and have also stated that she died of TSS after using tampons.

This has caused a lot of upset for my family and my daughter's friends. I have emailed the publication and requested an apology and asked them to take the article down. Can I take legal action if this isn't done?

Thank you for your question, Diane.

On the basis of the information you have provided, there is no obvious English law cause of action that will help you here. I don't think the requirements of defamation or malicious falsehood will be satisfied.

One possible line of attack would be through the photographs. You may be able to argue that the use of the photographs infringed copyright, or possibly privacy-related rights. However, I would need more information about the photographs and the circumstances of their use to give more guidance here.

Hi, can I use names and content from other websites on my own website, such as innovations, new discoveries and the names of people who participated?

There are circumstances where using names and content from other websites may be legally problematic. I'd need more information to give any useful guidance.

For example, somebody discovered a new technology and quite a few websites are writing about it, can I also write about it in my own words? My website is in non-English language.

Thank you. 

Under English law, this usually wouldn't be a problem.

(If you are not writing in English, it may be that the relevant law is not English law. However, on the whole, copyright law as embodied in various international instruments does not prevent this sort of thing, providing you are taking facts/ideas rather than the detailed forms of their expression.)

Dear Sir, I have a book which has been co-authored by another. It has been in publication with his and my consent for 10 months now. He himself did the German translation and so the book has been in publication in Germany since the summer. He has become angry with me and so has asked Amazon to take his half out of the printed version and his name off the title. He has issued his half of the book as a free pdf. Is this all legal under these circumstances?

To give any guidance here, I'll need a little more information.

Did you have any written agreement with the co-author? If yes, does it say anything that may be relevant to your current situation? If no, was there any kind of informal agreement?

Regarding your work, to what extent was it intermingled/inseparable? Did he translate your work into German?

Regarding Amazon, are they really interested in editing the text of works?

Finally, why has he become angry with you?

Hi, I had a book self published; not a ebook, a hard copy book for a 'A' level. We paid for 30 odd copies to be printed by a printing company.  I did not sign any agreement with them other for them to print the copies that I have. I have now found my book for sale on a website for £6. I did not consent to this nor did I sign any rights away.  In the book the copyright is mine but the company publishing the book state that all rights reserved etc regarding reproduction of the book.  Do they have the right to sell the book without my permission?  I have not given them any permissions nor have they asked for any.  I was not even aware that they had done this. Any advise would be greatly appreciated. 

It seems likely that this is an infringement of your copyright, although I would anticipate that your rights to damages (under English law) might be very limited, and consequently the matter may not be worth persuing beyond correspondence.

Hello, I published a book with a company, I paid for the publishing, but after the publication, I was told I have to buy my books from them at a discount price, while they will do the selling and pay me royalty. It is over 2 years since. There is no record of royalty and they keep calling me to give them money to market my book. Please what can I do?

Is there a written contract with the publisher? If so, what does it say about these matters?

Also, are you and the publisher in the UK?

Dear Alasdair,

if a website has a section which publishes articles, can we name such section 'magazine' or 'emagazine' - or are there any legal requirements to use that terminology?

Thank you

There are specific no issues arising under English law that would arise out of the naming of part of a website as a "magazine" or "emagazine".

My contract with my UK publisher was officially rescinded on 17.02.16 but the book is still being offered for sale on Amazon and the publisher is ignoring requests to remove it. 

What can I do? 

Thanks in advance for any advice you can offer.

Alex

Was the contract rescinded or terminated? There is a difference.

The first thing to check (especially in the case of termination) would be the terms of the contract itself. Publishing contracts often provide expressly for what will happen to the work after termination.

Also, are the copies for sale ebooks or hard copies?

Hi Alasdair,

Thanks for getting back to me so quickly. The contract was rescinded after I bought back my rights. The publisher has a right to sell existing copies for 6 months. The book, however, is print on demand. Amazon would need to send the order to the printer for it to be printed and dispatched. I am in touch with the printer and have satisfied them that the publisher no longer has the right to sell and they have canceled the current ISBN number. The book remains on Amazon and orders can still be placed. 

Printing and selling copies of a book are acts that require the permission of the copyright owner. So, assuming your contract is clear that there is no ongoing permission, you should have some enforceable rights here. However, having enforceable rights is one thing; actually enforcing them is another.

If I were you I would write to the publisher again setting out the legal basis for a claim (Chapter II, CDPA), perhaps also threatening a complaint to Trading Standards regarding criminal copyright infringement, and specifying a reasonable deadline. If the deadline is reached, you would need to instruct a solicitor to take up the case, invest your own time and energy in persuing it through the courts, or give it up at that point. Assuming the amount in dispute would be less that £10,000, the IP Enterprise Court would likely be the most suitable venue for a claim, see:

https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/high-c...

https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil...

The IPEC's procedures are designed to help unrepresented parties.

I'm assuming the parties/infringements are in the UK.

Does a print magazine have to publish the name of the printer in UK?

There is no legal requirement under UK law for a printed magazine that is published in the UK to specify the name of the printer.

Hi Alisdair. My Rotary Club is producing a programme of a community awards event. The work will all be done by members of the Rotary Club. Is it legally necessary to state who published/printed the programme? If it is I was thinking of the name of the club and the address of the secretary.

As per my previous answer, there is no requirement regarding printers. Nor is there a UK legal requirement regarding the identification of publishers, although I can think of a number of good reasons for including the publisher's name with a publication. These include: (a) providing evidence of publishing responsiblity; (b) identifying the person to contact for permissions (cf orphaned works); and (c) including a UCC copyright notice.

I have a new venture that allows members of the public to create and purchase decks of game cards online. The product is meant to be for groups of friends, sports teams etc. We have clearly published Terms and Conditions that state that users should only use images that they have the rights to and the user has to tick a box to say they agree to the terms and conditions before they are able checkout the product. I've notice people have started creating decks with images where the rights are clearly held by large entertainment companies. I can 'catch' these orders at the moment, but as the product grows my production system is designed that there is very little human contact and I'm worried some might slip through. If successful, I will not be able to manually check every order. Who would liable in this case for infringing on copyright or image rights? Is it still us as a publisher? or is the user effectively self publishing? Are we just a platform that allows people to generate content, much like youTube and we have to act only once asked to by the rights holder? Many Thanks, Ed

You could be liable here, as well as the person uploading the image. In UK law, the usual Ecommerce Regs defences (hosting, caching, mere transmission) would not cover all the infringing acts here. You should consider taking proper advice on this, with a view to minimising the risks.

I've recently shared my story with a local paper, only to find that it's appeared - without my permission - in the Mirror. Given the subject matter I rather expected clickbait sites to pick it up because that's rather inevitable, but The Mirror have never approached me, and the story was an exclusive to my local paper. They also used the photographer's original photographs, twisted things to make it seem like I'd been abused by a family member in my childhood and generally destroyed what I had set out to do. Can I take any legal action against them?

There may be a cause of action here. Defamation is the most obvious candidate, although there are other possibilities. You should discuss the matter with a solicitor specialising in media law. NB even if there is a cause of action, that doesn't always mean it is a good idea to pursue the matter.

If you've self-published a novel under pen name then later change the title and publish under your own name, do you have to put in the front of the second one that it was previously published under another title?

This is not a requirement of English law.

I am part of a committee that hosts an annual conference. We contract with a third party to design, layout, and produce a conference program. An industry magazine has published this content without expressed permission and distributed it onsite to attendees. Some of the information published is inaccurate causing confusion for attendees. Also it is clear they have made profit from sponsors and advertisements. There is nothing in their publication that differentiates the content (in other words they have no unique info). Have they violated copyright law? Is there any legal action we can or should take?

Thanks for your question.

The first question here is: who owns the copyright in the conference program? As it was created by a third party, then the third party would likely be the first owner - so has that third party assigned the copyright to your organisation?

It seems likely that the reproduction of the program amounts to copyright infringement, although I would want to see a copy of the original and the copy before stating this with certainty.

If your organisation is the copyright owner, and copyright has been infringed, then your organisation is likely to be entitled to bring proceedings against the infringer. If your organisation is a licensee, then its entitlement to bring an action will in part depend upon the terms of the licence and the operation of the applicable copyright legislation.

NB copyright infringement proceedings, professionally conducted, can be expensive.

 

Hi Alasdair

I have produced a photographic novel about mental illness. It has two general aspects, personal and cultural. The story contains my copyright images including nudes of a model who possed and gave verbal permission to exhibit the images at the time (35 years ago) in exchange for a reciprocal arrangement with me posing naked for her. We are both artists.

How do I publish today without going to gaol; as getting written permission is now no longer possible?

If I published my own version of a third book in a fiction trilogy, rather famously left incomplete for decades, and made it free to download, and also made it public domain and copyright-free, could I be held liable for copywright infringement, or any other infringement?

Hi Alasdair

I work for an architectural firm, and like all design companies we have articles written about us in magazines, newspapers and online journals. Are we infringing on copyright laws by hosting these articles on our own website?

I would appreciate some guidance on this matter, as I don't know if we need obtain separate permissions from all publishers or a singular multi-use licence.

Regards

Liza

Yes, you need permission from the copyright owners. Regarding collective licensing in the UK, see:

http://www.cla.co.uk/

http://www.nlamediaaccess.com/default.aspx?tabId=40

If a publisher prints and sells thousands of copies of a book after the licence has expired, what are the legalities? Does the author have a valid claim against the publisher? Can agents take commission on the books they knew were sold after the licence ran out and the agents no longer acted for the author?

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