Category Archives: IP Law

Think before hitting enter

For the longest time, writers were told there were several things you didn’t talk about in public: politics and religion. Publishers and agents didn’t want you to for fear you might alienate potential readers. Going hand-in-hand with that was the unwritten rule that you didn’t attack or criticize another author in public. After all, the time might come when you and that author shared an agent or a publisher. Then there was the potential of alienating fans of that author, fans who might have become your fans. In other words, writers were expected to basically act as if they were sitting down to Sunday dinner with the family when it came to what face they presented to the reading public.

I’m not going to talk about writers and politics, except possibly as a side issue today. This post is about stopping and thinking about how what you do will impact fans and potential fans. Why? Because over the last few weeks, I’ve seen more examples of writers behaving badly than I want to think about. The last few days especially have been rife with examples. Several, unfortunately, stood out because they can negatively impact not just the authors involved but all indie authors.

Let’s face it, as indies, we face an uphill battle until we start making a name for ourselves. Even then, we have to continue working hard to not only court our readers but put out a quality product. I daresay most of us don’t want to be labelled as the next Norman B., an author who will take exception to anything he feels is a negative review of his work. We don’t want to be painted with the same brush as those who plagiarize work by other authors or those who don’t believe an editor and proofreader would help improve their work.

We have to not only put out the best work possible, we have to worry about making sure we have cover art that is 1) duly licensed or purchased and 2) reads well for the genre and in thumbnail. We have to make sure our blurbs are the best they can be. We have to promote our own work as well — something traditionally published authors also have to do because traditional publishers aren’t spending as much per title on promotion as they used to.

If you go to Amazon and browse through the various genres, you will sooner or later come across covers that are the same or close to the same. This happens because most indies license their cover art elements from sites like Dreamstime or Adobe Stock. It’s a cheap way to find good art that fits the genre. The danger is you are only licensing the artwork and not buying it. That means others can license it as well.

Even so, there are restrictions on how that artwork can be used. This is from the Adobe Stock standard license language:

With a Standard license, you may not:

  • Create more than 500,000 copies of the image in print, digital documents, software, or by broadcasting to more than 500,000 viewers.
  • Create products for resale where the main value of the product is the image itself. For example, you can’t use the asset to create a poster, t-shirt, or coffee mug that someone would buy specifically because of the image printed on it.

You also can’t post the image in such a way that others can use it without first licensing it. If you do, you are in violation of the license and the copyright holder can come after you for damages and Adobe Stock can revoke your use of their site.

So, what about book covers? When can we post a cover? If it’s one for artwork you’ve licensed, you can post it or use it in promotional material as long as you aren’t in violation of the license. In other words, you can do it up to half a million times — including each time your book or short story is sold. So you have to keep an eye on that. You can print flyers and postcards, digital or hard copy, describing your book and showing the cover. Reviewers can post a copy of the cover image as part of their review. If there is a book you want to recommend to someone, you can post that as well.

Where the line blurs and you need to think twice before hitting enter is when you start using the cover image of another author’s book in promotional materials and say “If you liked this, you will like my book.” The problem with this sort of promo is that you are using someone else’s work, specifically the cover art, for your own financial gain. To get around that, you need to ask the publisher for permission. Many publishers even have a handy link so you can do just that.

Please note that the problem isn’t in comparing your work with another author’s work. The problem is in using copyrighted material for your own financial benefit.

Now, before anyone jumps the gun and starts yelling about fair use, I’ll remind you that fair use is limited. For a very good discussion of it, check out this post by Nitay Arbel.

But there is something else to consider, something beyond the potential legal headaches that can come from using someone else’s cover in your promo materials without permission. You, as an author, are saying something about yourself when you do that. To other authors and publishers, you are telling them that, at best, you are too lazy to do your own homework and research if what you’re doing is legit or not. Falling back on “but so-and-so does it”. To readers, you risk alienating them, especially if you are the one making the comparison between your book and one of their favorite authors.

If you use another author’s book covers in your promo materials, especially well-loved books, and then mock the books or the author in the comparison to your own work, well, that’s a keg of explosives you really don’t want to light. It doesn’t matter if you think the books are inane or stupid or that they “sparkle”. What matters is that tens of thousands of readers loved those books and you have just insulted them as well as the books and the author. Do you really want to go there?

And, if you have done so without getting permission to use the covers, you have opened the door to the publisher saying you have cast a negative shadow on their product. If you’re like me, you don’t have the deep pockets required to fight them and force them to prove damages. Sure, they’ll probably send a cease and desist letter first but they might also take a page from some music publishers’ book and go straight for damages.

In other words, stop and think before hitting the button. Yes, you can in your promo material say your book is similar to another author’s book. You can even say how your book is different from another author’s book. But you need to ask permission before using the cover of that book, especially if you are using it in a negative manner.

If you are an indie author, you have to use common sense. You have to do your homework. That homework needs to be done BEFORE you do something, not after. Why? Because your actions impact more than just you. They impact your fans. They also impact every other indie author out there. Think about it. We fight against the image that we are all hacks who can’t get past the traditional gatekeepers. We fight against the image that we don’t have our work edited and proofread. We fight against the image that all our covers suck and stick figures would look better. Don’t add that we have to fight against the thoughtless, or at least the lack of thought, actions of our fellow indies.

Now, go read the licensing agreements you have committed to with regard to your cover art. Re-read — or read for the first time — the terms of service for each of the sales platforms you work through. Check to make sure you have licenses for the fonts you use not only on your covers but for your interior text file. Be a professional where your work is concerned.

//end rant.

 

61 Comments

Filed under AMANDA, IP Law, PROMOTION, WRITING: PUBLISHING

Law and the Writer

Last week a young writer who is also a lawyer was on blog tour, and I have asked her if she wouldn’t mind stopping by the comments today to answer some questions. The usual disclaimers apply: although she is a lawyer, she is not your lawyer, and nothing you read in the post or comments should be taken as legal advice. If you think you need a lawyer, get one, internet lawyering may well be worse than useless. That being said, it’s great to get some insight into the sometimes murky world of Intellectual Property law.

I’m pleased to introduce Amie Gibbons, whose energy in real life translates into her books. She writes lighthearted stories with sweet Southern sass, belles who pack heat, and a dollop of romance on top of things that go bump in the night. Her latest is Psychic Undercover (With the Undead) and it’s a fun romp of a book.

Okay, if you’re a writer, you’ve heard the term copyright. It’s very important in the arts. So what is a copyright?

It is literally what it sounds like, the right to copy. It means you own that type of mental work and you are the only one who can make reproductions of it.

On some things, it’s easy to say what’s copyrightable and what isn’t. A book is copyrightable, but what about a title? Or a made up word? Or a general plot? There it gets a little more tricky. It gets grey. Lawyers love grey, it gets us lots of money.

This post is just going to touch on the basics of copyright.

1. For something like a book, the first question is usually along the lines of, “Do I have to register it to have protection?” Basic answer is no. You created it, it’s yours and legally no one can take it from you. You have copyright as soon as the art is put on a medium, as in, words are put on the page.

So no, you don’t have to register it with the copyright office, and you really do not have to do the “poor man’s copyright” (that’s where people would mail themselves their manuscripts in the mail and keeping the dated paperwork to prove they had the work on that date).

The tricky part if you get caught in a legal battle is proving it was yours first. This is where a registered copyright helps because it helps prove it was yours on the date registered (it also does other stuff for you like you can sue in federal court and get greater damages in court).Read the rest here… 

The post on copyright, fair use, and other common IP questions appeared at my blog, and then on James Young’s blog, Amie delved into the dank world of Contract Law.

Well, first up, most publishers have a form contract they expect you to sign and if you don’t want to, they’ll tell you it’s standard across the industry and you can take it or leave it. If you leave it, don’t worry, there are a hundred authors behind you who will have no problem with it.

That is one of the big things to look at in contract negotiations. Does one side have more bargaining power than the other? Usually the answer is yes. Unfortunately for writers who are set on going trad pub, the answer is extremely yes. The publisher has all the power because they don’t really need you. Unless you have already made it huge like that Fifty Shades woman and they want to get on board the train, you’re replaceable.

Does that mean you can’t try to negotiate? Of course not. Hire an IP lawyer who specializes in author contracts to look at the contract, to explain it to you if need be, and to go to the table to negotiate on your behalf.

First rule of negotiations, you never send the person with the power to say yes to the table.

Why? Because if you as the author are at the table, they can pressure you right there to agree to something. If your representative is there, there is nothing they can say to get the rep to say anything but, I’ll take it to my client, because the rep legally cannot say yes, no matter how good the deal sounds. Even if you tell them they can say yes if the deal has XYZ terms, they’ll still most likely say they’ll take it back to you because they know how to negotiate and that no legit deal requires you to say yes in the room.

Again, will this help if the publisher says this is the form contract that is standard across the industry so you will take it or leave it? Probably not. But you never know. There might be a few things that are just egregious to the author that publishers have in there because they know they can get away with it, but really don’t mind dropping if you ask. Read the rest here…

Amie has some very practical things to say, with a good dollop of commonsense. I know this is a lot of reading when you follow the links, but it’s all worth digesting. Then come on back here and ask questions in the comments, both Amie and I will be around to answer them! I am not a lawyer, at all, but I can usually come up with a link to an answer.

20 Comments

Filed under CEDAR SANDERSON, IP Law