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

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?

The printing and distributtion of copies of a book that is protected by copyright, after the termination of a licence, would usually constitute copyright infringement. It may also be a breach of the contract under which the licence was granted.

To get a definite opinion on this, however, a lawyer would need to review the contract in question and discuss all the circumstances with you.

Hi Alasdair, I can't get my head around the question how to get photographers, artist or any other source printed in my own magazine? Let's say I would like to create my own magazine (maybe just 100 copies, sold online). While doing that I get in contact with photographers or graphic artist in my niche asking if I'm allowed to print pictures of their work in my magazine. What are the "rules"? What is the common process / scenario? It has to be a similar scenario for bloggers and social media influencers (first ask for permission, second mention source under image etc.). Thanks for your help in advance, Daniel. 

Hi Daniel - thanks for your question.

There are various ways of getting permission, depending upon the context.

First, assuming the original creator has retained the relevant rights, you could get permission from them. That might be just an email saying you can reprint, or it might be a more formal permissions letter, or even a copyright licence agreement.

Second, the original creator may have granted to others the right to sub-licence. A good example of this would be stock photography, where the stock photo company can grant you the right to use an image. This would usually be on standard licensing terms.

Third, somewhere between the above two options, you might be able to get a direct permission via a digital marketplace. Again, usually standard licensing terms will apply.

Fourth, the creator may have made the works available under a Creative Commons or similar licence - here use will be free, but may be subject to specific conditions such as attribution.

Fifth, works that are out of copyright in all relevant jurisdictions don't need permission.

If a man wrote a book, and then he died after that without a will, after 30 years his wife found it and gave it to publisher to publish, any copyright issue?

I'd need lots more information to give any guidance I'm afraid - the question is too open and potentially too complex for dealing with in blog comments.

Maybe I digress from the issue. Anyway, could you help me with the following. My research paper was published as a conference paper. I signed the copyright and according to it the publisher is a copyright holder. Now, I found that the abstract of my paper is written (literally) on the website of some organization. On the publisher's website the abstract is open and can be copied with no restriction and no payment. So, as I understand it the abstract is considered as an open access publication and can be borrowed by any person without my and publisher's permission. Correct? Or there is some regulations which can protect my abstract from free usage? 

The public availability of a copyright work does not amount to a general licence for others to use.

The extent to which third parties can use the work may depend upont the publisher's website or service T&Cs. What do they say about this?

If you have assigned all the copyright to the publisher, then it is the publisher that has the right to bring proceedings against a third party infringer, not you (although you may still have limited "moral rights".)

Hello there,

I have published a series of academic books which I also formatted and then gave to my professional institute to publish. There is no publishing agreement between us. The title verso is very clear that I own all of the copyright and that is not to be reproduced in any format. I have subsequently found out that my material (substantially copied) l has made its way into a 'study book' aimed at students. Do I have recourse to ask the publisher of the study book to stop selling it? What remedies do I have as the owner of the original content? Thank you.

Just to be clear: is the publisher of the study book a different organisation to the publisher of the original series?

If they are different organisations, are you aware of any relevant relationship between them?

I am student of 11-12th science and I am interested to start small unit based student magazine for our friend circle. So I want or know minimum requirements for license to our magazine.

In which country will you be publishing the magazine?

Hi Alasdair,

I publish a small independent quarterly 'trade' journal, a guide to regulations and operations in the service garage industry, mailed and emailed out to paid subscribers.

We recently became aware of an article printed in the house journal of a major motor industry organisation, and attributed to the chief executive of yet another trade organisation. This article is, as far as I can tell, a word for word copy of an article which we ran in a recent issue, written by our staff writer.

What sanctions are appropriate, against the publication and / or the 'author' who is falsely claiming to have written the article?

Many thanks.

Hi Martin,

This sounds like a fairly clear case of copyright infringement, and also potentially an infringement of the moral right of paternity.

Assuming your staff writer is an employee or has assigned copyright to your organisation, then your organisation should hold the copyright.

In this sort of case, there are 2 different ways in which basic damages may be calculated: on the basis of damage done to the copyright owner; or on the basis of a reasonable licence fee. In both cases the total is likely to be modest.

However, in cases of deliberate infringement, additional damages may be awarded for flagrancy. This looks like a useful case here:

http://kluwercopyrightblog.com/2015/10/07/uk-damages-for-copyright-infri...

In addition to damages, you may be entitled to an injunction to prevent any ongoing infringement.

PS Please treat the above with caution: I'm making various assumptions which, if incorrect, might lead to different conclusions.

Many thanks indeed - all noted.

Many thanks also for an extremely useful resource.

For several years an article i was asked to write has been available internationally online, with my name fully attributed as author.  i gave permission for this but i was not paid for the article and photographs included in it.  i recently wrote to the website it is published on and asked for it to now be removed for personal reasons.  they have refused. i have written and requested politely several times and they continue to refuse my request.  what is my position on this?  how do i go about enforcing my rights to my own attributed work and having the page removed from the site?  i am in the UK, the site is based in switzerland.  thank you for any help.

The legal question here is whether the licence that you granted to the publication is terminable without cause. If there are any written licensing terms, they should answer the question. If not, then an English judge looking at the issue would consider (a) the circumstances surrounding the original instruction and publication, together with (b) practice in the relevant industry and (c) any course of dealing, in order to decide the point. As I have no particular knowledge of (a), (b) or (c), I'm not in a position to guess what might be the outcome. Also, it may be that Swiss law rather than English law is critical here.

We are a non-profit group who publish a quarterly magazine; for convenience we would like to license another group to run our back-number service. Would such a licence agreement cause an issue over authors' copyright? Both organisations are companies limited by guarantee.

Do you have written agreements with your authors?

Dear Alasdair,

I would be very grateful for some advice.

My partner died 7 years ago, and left everything to me in his will.  This included his (unpublished) novels.  I would now like to publish these under his real name (as he wished).  When citing the copyright, should I use my name or his?  If mine, how would I date it - the date it passed to me or the date the work was finished? 

Thank you for any help you are able to give.

As you are the copyright owner, a copyright notice should use your name not his.  The data in a UCC style copyright notice is the date of first publication.  Eg This comment is (c) Alasdair Taylor 2017.

Hi Alasdair,

My publisher has invited talks over possibly looking at rights reversion (for a novel). I've asked for a copy of my signed contract as one wasn't provided on signing, but I've not been provided with one since. We're sent the contract over email, asked to print, sign, then return it to the publisher for them to sign. They then usually provide a copy, showing both signatures on the contract (I'm in the UK, they're in the US).

They have since said they'd still like to look at getting the work through production as they look at the rights reversion, but could I be within my right to wait working edits with them until I have proof of the contract with them?

That's a difficult one.

If the document that you signed specifies that the contract only comes into force when they provide you with the signed copy, then as things stand there may currently be no contract, so no contractual restrictions upon what you can and cannot do.

If (more likely, I guess) the contract is silent as to exactly when it comes into force, then one would usually expect that to happen upon the signaure of the second party.

Does the contract contain any specific or general obligations that might be interpreted as requiring the publisher to provide a copy? General co-operation obligations are not uncommon in general commercial contracts, but can't recall seeing such a clause in a standard publishing contract.

As so often, I think I'd need to see the contract and discuss the circumstances to provide any useful guidance here. The best answer here is likely to be based on practical considerations as much as legal ones.

Hi

Could you please kindly advice me regards the following confusions I have.

1. Do I need to have a license for online / printed magazine?

2. Can I produce magazine under an event company as it's related to it?

3. What kind of licence do I have to apply for it and what other legal regulations do I have to follow in order to run a free online magazine? 

Really appreciate your help.

Thanks,

Simm

In the UK, you don't need a governmental licence to publish a magazine.  There's no particular reason why an event company couldn't publish a magazine. Although there is no licensing requirement, there are a great many laws you need to follow when publishing a magazine or indeed engaging in any business venture - too many to recount here.

Hi,

Thanks for the reply, So I don't need licence for print or online magazine.

What are the main laws that need to be covered, could you be kind enough to give in bulletpoint so Ican do the research and get going.  

Also what kind of contracts I have to prepare to collaborate with photographers, models, and vendors and with advertising companies?

Please advise.

Thanks

Simm

NB you don't need a government licence - you do of course need licences of copyright to publish others' content.

For a guide to the law and contracting, see:

https://www.amazon.co.uk/Publishing-Law-Hugh-Jones-x/dp/1138803790

Can a media be sued by publishing an online article from a company proving that one of their competitors has lied about some of their statements?

I'm not entirely sure I understand the question here, but perhaps these points will help:

(i) almost anyone can be sued by almost anyone - the real question is whether a potential claimant has a good case

(ii) in legal terms it seems unlikely that an article could "prove" very much here - although the evidence upon which the article is based, once presented in court, might offer some kind of proof

(iii) a claim that someone is a liar is on the face of it defamatory, and might ground a legal action

(iv) if the claim is true, and you can prove this to the requisite standard, then the defence of "justification" may well apply 

Hi, I have recently discovered an online publication has used my story and full name in an article they have done about a famous person. I was not asked permission or made aware that they would do this. Is this allowed? 

I'd need to have a look at the article and discuss the background with you to form a view on this (ie take you on as a client).  In general, journalists can use names (even though they are personal data) without permission.  See:

https://ico.org.uk/media/for-organisations/documents/1552/data-protectio...

I wrote 2 Family Registers that contain family details and photos of persons as from 1700 up to 2015. I have printed a book but want to put this now on a blog or website. Is this legal as it contain photos of persons, gravestones etc in the book with full names, date of birth, date of death (if applicable) etc.

It's not really possible to give a good answer to this sort of general enquiry about the legality of a publication.  Publishers will typically do a pre-publication legal review (ie have a lawyer read the work, and provide a written report with suggested amendments) where they think there are possible issues with a book. Possible legal issues with the sort of book you describe might include: (i) copyright in photographs taken by others; (ii) rights of privacy for living persons, especially children; and (iii) depending upon whether there is any commercial or non-domestic angle, data protection rights. One way to deal with many of these sorts of issues is consent.

Sorry if this has been asked before but I'm interested in the fact that the British Library has a the legal right to one free copy of every published work in the UK.  Their own site defines 'published' as being made available to the public - so, not dependent on having an ISBN number, or the print run, or the price, but whether or not it has been disseminated to the public.  I'm just wondering what this means in terms of, for instance, photographers creating photobooks.  If they have 50 printed to give away to friends and family, does this mean it is published?  Does the library get to demand a copy?  If they print 50 and mean to give 20 to family and hopefully sell the rest, has it been published?  How do you determine when a book has been 'made available to the public'?

Thank you! 

For the statutory definition of "publication", see the Legal Desposit Libraries Act 2003, s14: http://www.legislation.gov.uk/ukpga/2003/28/section/14.

Without doing some research, I'm not 100% sure of the strict legal position here. I'd guess the phrase "issue of copies of the work to the public" has the same meaning as in s16(1) of the CDPA (http://www.legislation.gov.uk/ukpga/1988/48/section/16).

On any case, I doubt the British Library would welcome a broad interpretation universally applied!

I have always considered the publish date and time essential to maintain in news items. Are there any aspects of law which support this? For example, updating an older news item, one would not update the publication date to the current date of the update, but retain the original published date and time. 

There is no rule of English law that requires the inclusion of dates/times on news items. However, you are right to suppose that there may be legal implications of including - or not including - dates/times.   In the example you give, dates affect meaning, and meaning affects defamation claims. Another example: dates on publications may be evidence in copyright infringement claims.

Is it necessary for a publisher to be a registered company/sole trader, or can you just nominate a title for the publisher e.g. Blah Blah Blah books? The stigma of self-publishing would therefore be averted.

As a matter of English law, it's not necessary to run a publishing business through a company.

If you do it as an individual, however, your are doing it as a "sole trader".  Sole traders do often use a trading name, and this is permissable. When choosing a name you need to check the law on business names and ensure that you don't infringe anyone else's trade marks.

NB to be clear, all businesses - including sole traders - do need to register with HMRC.

For more info, see:

https://www.gov.uk/set-up-sole-trader

Hello Alasdair.

I'd like to thank you for extensive advice given here, and I would like to ask a somewhat dubious question.

Several days ago, whilst on holiday, some people were given the key to my hotel room for the sole purpose of obtaining anti-mosquito wipes.

However, they have found my private, unpublishable diary, underneath a different book, read parts of it, taken photos of it and showed it to different people, maybe even posted it online.

It has caused a great personal rift, and they do not accept responsibility for their actions and are laying the blame solely on me for putting in writing certain things.

I repeat, this was never intended to be published in any way, shape or form.

Any advice on how I should proceed?

Many thanks in advance.

There are potential legal claims here, but how you should proceed depends upon what you want to achieve.

I was on the Jeremy Kyle show last year and they have recently aired it again.  I now found out that when it was re-aired a magazine has published about it, but I didn't give then any right to do so. I was just wondering if I could sue or ask them to take it down? Thank you.

Do you have a contract with the production company? If so, what does it have to say about the matter?

Hi Alasdair, I have written a book on a music band around tours they did in the USA over the years. Most of the text is taken from other sources like internet sites, books, interviews, and newspaper reports etc. I have written the text in my own words and am using photos from fans that have given me permission to publish, so is mostly a photographic book with accompanying text. Do I need permission from band to self publish this book? Thanks.

Nothing in your comment suggest that you definitely need the band's permission, but: (i) text being "taken from other sources" could be an issue, depending upon the extent of the rewriting; and (ii) I would need much more information (most likely, to skim read the book and discuss the details with you) to given you an assurance that you do not need permission.

Thanks, how can I send some examples to you? 

I'm afraid I'm not taking on this type of work at the moment.

The text I am using are quotes that have been published and used in books and documentaries for years, as this tells the story in the bands own words throughout the book. Text I have re-written is my interpretation of what has previously been written by authors in the past, with info which has also been known about for years, though is essential to the timeline of the new book. 

Dear Alasdair Taylor,

I remember something vaguely from highschool about publishing artwork and whatnot, and one of the things I've heard is that your content can't exist in the public already. E.G if you made art image and posted it online, it's no longer valid to publish because it's already been distributed for free. Is this true?

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