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

What do you mean by "no longer valid to publish"?

Can I quote parts of interviews and sound bites from radio and magazines in my book?

I work for a local newspaper. I'm (in theory) the head writer on the staff, the first three pages of each issue are 100% my writing. I've been working there for a while but I am still not listed on the masthead. Not even as a contributor? I've mentioned this to the owner who assured me that this would be resolved (weeks ago), but each week a new paper comes out and I'm still not listed. Is this legal?

Is this in the UK?

No, US - New York State.

I'm not familiar with US law in this area, although a moral rights based argument doesn't look too promising:

https://www.wellsiplaw.com/what-are-moral-rights/

Should a magazine publish the name and address of the publisher and their distributor?

A local newspaper has published pictures of my affected property in their paper and on line.

They have stated the property is unoccupied allowing all to be aware of this.

I live 4 hours away. I am disgusted that they have advertised that my property as unoccupied and vulnerable.

Can they legally publish these details without my consent?

Thank you

Is this a UK newspaper?

Yes, a local paper on the Isle of Wight

I think there is a reasonable argument there that a specific disclosure that the house is empty could be data protection breach (or alternatively a privacy brach). It does depend however on exactly what information is included in the article and how the prejudice to you balances against the public interest. For background regarding data protection and journalism, see:

https://ico.org.uk/media/for-organisations/documents/1547/data-protectio...

For more detail see:

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

The first thing to do would be to write to them, suggesting that there might be a legal issue here, and asking that they amend the article.

I want to sell in the UK an Indian book which probably infringes, albeit harmlessly enough, someone’s copyright. Is It illegal to distribute it if not publishing it.

Distributors of infringing works are covered by the secondary infringement provisions in UK copyright legislation.  See:

https://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/II/crosshead...

In other words, distribution of an infringing work may be unlawful.

Hello Alasdair,

I help to publish a local hard-copy parish magazine (12 - 16 A5 pages) which is delivered to 200+ households in Cumbria. It includes the usual sort of local news/events and local traders adverts (up to six). One or two readers have asked if I can email them a copy. This is fine with me, however, I have been advised that as the content includes advertisements I can't distribute it by email - is this right?

I've read your 10 tips above and will add disclaimers in future editions - we already acknowledge all contributors as a matter of courtesy.

Thanks for your time

Don

Hi Don,

If we assume that this would be treated by the law as a direct marketing communication, then you are nonetheless able to send it by email if you have consent. By asking for the magazine to be sent by email (and presumably providing email addresses) the individuals in question have consented. Strictly, you should give them the opportunity to opt-out from further issues each time you send them an email.  You should also keep evidence of the consents I suppose.

Hi Alasdair, 

I want to publish the work of my ancestor, his memoirs were published in the US but in Russian in 1953 - year of his death. The publishing house that published his memoirs back then has been closed for decades. Does my family owns the right to his memoirs or is there anything in particular that I'm missing and should consider doing before proceeding with the publication? 

It's often difficult to establish the subsistence and ownership of historical copyright works, particularly where multiple jurisdictions are involved. You would need to take professional advice on this sort of question.

Hello!

I'm researching a topic for a college seminar paper that revolves around the question, "Why don't books come with content advisories like movies, music, TV programs, video games, radio, etc?"

These other media have the FCC, not exactly as oversight, but as the knuckle-cracker who fines/penalizes them when they violate legistated decency standards. If the publishing industry has one, I can't find it. Is there one? If there is, does it operate similarly to the FCC? 

Dear Alasdair

What an excellent site, and much needed.

I want to write a novel based on a true-crime case. All the main participants are deceased now and I appreciate that you can't defame the dead or invade their privacy. However, as the crime took place in the late 1940s, it's possible that close relatives of the protagonists are still alive. My question is whether it is possible to invade their privacy simply by writing about something in their family's past they would rather forget?

Another option is to write up the same crime case as non-fiction. Are the privacy considerations very different in the case of fiction vs non-fiction? I understand that changing details i  a fictional account can afford some protection against privacy issues but in this case it's the details that make the story compelling, so it will defeat the object of the exercise if I have to alter them too much.

Last year I published a non-fiction book about a Victorian crime and I've been contacted by two relatives of that perpetrator, in a friendly way, just to say they appreciated the book, but it makes me mindful that family memories are very long.

Many thanks for any guidance.

Julia

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