How Not To Get Sued: A Lawyer's Guide for Self-Published Authors
Jarrod Easterling
Attorney and legal consultant.
Creative freedom is one of the best parts of self-publishing, but it’s important to wield that freedom wisely. The following information will help you navigate the landscape of self-publishing to avoid legal pitfalls. Let's look at some specifics of how to protect yourself and your work from lawsuits.
Author’s note: This guide is intended to be strictly informational and should not be taken as legal advice.
Do self-published authors get sued?
Yes, self-published authors, like any other authors, can face legal challenges and may be subject to lawsuits. The reasons for legal action can vary, but there are some basic precautions you can take to minimize that risk. Here are some common reasons self-published authors might face legal action.
1. Copyright Infringement
Accusations of using someone else's work without permission, whether it's text, images, or other creative content, can lead to copyright infringement claims. With the growing popularity of AI in the art and writing space, expect some legal iffyness in that regard looking forward.
2. Defamation and Libel
If a self-published work contains false and damaging statements about individuals, they may pursue legal action for defamation or libel.
3. Privacy Violations
Disclosing private and sensitive information about individuals without their consent can lead to privacy-related legal issues.
4. Trademark Infringement
Unauthorized use of trademarks in self-published works can result in legal action from the trademark owner.
5. Plagiarism
Accusations of plagiarism, whether intentional or unintentional, can lead to legal consequences. Plagiarism can include verbatim copying, paraphrasing without proper attribution, failing to provide necessary citations, self-plagiarism (reusing parts of your own work without citation—wild, right?) uncredited collaboration, using someone else’s ideas/theories without attribution, submitting purchased or ghostwritten material (this depends on the topic and mostly applies to nonfiction and research presentation), fabricating information and presenting it as fact (also applies to nonfiction and research).
In fiction, plagiarism will mostly involve verbatim copying and stealing someone else’s work.
6. Contractual Disputes
Disputes with collaborators, editors, illustrators, or other professionals involved in the self-publishing process can result in legal action. Writers can avoid this by carefully reading, amending, and following the terms of any contract they sign.
7. Regulatory Compliance Issues
Violations of local regulations governing the content of books can lead to legal challenges. This will vary by region.
8. Breach of Privacy
If the author violates the privacy of individuals by revealing personal or sensitive information, legal action may be taken.
It's crucial for self-published authors to take proactive steps to minimize legal risks. This includes obtaining proper permissions for the use of third-party content, ensuring the accuracy of information, properly using citations, respecting privacy rights, and understanding and complying with laws and regulations relevant to that region and situation.
Authors might consider obtaining professional liability insurance to help protect themselves in case of legal challenges, publishing through an LLC or other protective entity, and/or seeking legal advice before publishing.
While legal challenges are not exclusive to self-published authors, they are often the least equipped to deal with legal action, as they are usually working alone, often under their own name/sole proprietorship. Being aware of and addressing legal considerations can significantly reduce the likelihood of facing legal action.
How to avoid copyright infringement
The most common legal issues a self-published author might encounter are those related to copyright infringement, whether they are the one infringing or the one being infringed upon. Here are a few tips to help you avoid copyright issues.
1. Understand Copyright Basics
Familiarize yourself with the basics of copyright law, including what it protects, the rights of copyright holders, and the duration of copyright protection.
2. Create Original Content
Produce original work that is not substantially similar to existing copyrighted material. Your work should be a product of your own creativity. One of the best ways to avoid being sued for something is to not do that thing.
3. Use Public Domain or Licensed Material
Utilize content that is in the public domain or has a license that allows for your specific use. Public domain works and those with open licenses (such as Creative Commons) are generally free to use, but you must adhere to the terms of the license. Do your research before using public domain materials.
4. Obtain Proper Permissions
If you want to use someone else's work, seek permission from the copyright holder. This is especially important for substantial portions of text, images, or other creative works.
5. Fair Use Consideration
Familiarize yourself with the concept of fair use, which allows for the limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, fair use is a complex legal doctrine, and it's advisable to seek legal advice if you have doubts about whether your use qualifies. There are also cases of platforms adding their own rules onto the concept of fair use, such as YouTube allowing copyright claims for content that should technically be protected under fair use.
6. Provide Proper Attribution
When using or referencing others' work, provide proper attribution. Clearly indicate the source of the material and, when necessary, the name of the copyright holder. In certain academic and other nonfiction pieces, it is necessary for citations to follow a specific format and include certain information.
7. Be Cautious with Fan Fiction and Parodies
If you're creating a parody, ensure that it falls under the legal definition of parody. A true parody involves commentary, criticism, or satire and is generally protected by fair use. However, not all humorous or mocking works qualify as parodies under copyright law.
Writing fan fiction can be a creative outlet, but be aware that it often involves copyrighted characters and settings. Some rights holders are more permissive of fan fiction, while others may take legal action. Always check the specific policies of the rights holder.
If you have specific concerns or encounter complex copyright scenarios, it's advisable to consult with a legal professional specializing in intellectual property law. They can provide guidance tailored to your situation and jurisdiction.
Can you publish a book about someone without their permission?
Publishing a book about someone without their permission can raise significant legal and ethical issues, and it may lead to legal consequences. Here are some considerations.
1. Privacy Laws
Many jurisdictions have privacy laws that protect individuals from the unauthorized use of their personal information. Publishing details about someone's private life without their consent could be a violation of these laws.
2. Defamation Laws
Publishing false and damaging statements about someone, whether intentional or not, can lead to defamation claims. Defamation includes both written (libel) and spoken (slander) false statements that harm a person's reputation.
3. Right of Publicity
The right of publicity protects individuals from the unauthorized commercial use of their name, image, or likeness. Publishing a book about someone without their permission may infringe on their right of publicity.
4. Invasion of Privacy
Disclosing private and sensitive information about someone without their consent may constitute an invasion of privacy, which can lead to legal action.
5. Consent and Releases
Generally, it is advisable to obtain written consent from individuals before publishing a book about them, especially if personal details are disclosed. Written consent can help protect you from legal challenges.
6. Public Figures vs. Private Individuals
The legal standards may vary when writing about public figures compared to private individuals. Public figures often have a higher burden to prove defamation, but privacy laws still apply.
7. Balancing Rights
Even if you believe you have a legitimate reason for publishing information about someone, it's essential to balance their privacy rights against your rights as an author. Legal advice can help you navigate these complexities.
It's crucial to note that laws regarding privacy, defamation, and other related issues can vary significantly between jurisdictions. If you are considering writing a book about someone without their permission, it's strongly recommended to consult with a legal professional who specializes in media law or defamation law. They can provide advice based on the specific legal landscape relevant to your situation and help you navigate potential legal risks.
Do self-published authors worry about defamation and libel?
Yes, self-published authors, like any authors, may have concerns about defamation and libel. Defamation refers to false statements that harm the reputation of an individual, and it can take the form of libel if the false statements are written or published. Authors, including those who self-publish, need to be mindful of the content they produce to avoid legal issues related to defamation.
Here are some common ways that authors slip into a defamation/libel problem.
1. Characterization of Real Individuals
If a work includes depictions or discussions of real individuals in a manner that could be damaging to their reputation, it may give rise to defamation concerns.
2. Fictional Characters with Real-Life Resemblance
Even if characters are fictional, if they closely resemble real individuals and are portrayed in a negative light, there could be concerns about potential defamation claims.
3. Opinions vs. Factual Statements
While expressing opinions is generally protected by free speech, presenting opinions as facts or making false factual statements about individuals can lead to defamation issues.
These are only a few cases in which an author may find complications with defamation and libel.
What constitutes defamation in self-publishing?
Defamation occurs when false statements are made about an individual that harm their reputation. To constitute defamation, certain elements must generally be present.
1. False Statement
The statement must be false. Truth is generally a complete defense against a defamation claim. If the statement is true, it is less likely to be considered defamatory.
2. Publication
The false statement must be communicated to a third party, either through written or spoken words. In the context of self-publishing, this means making the false statement publicly available through a book, ebook, blog, or any other form of written communication.
3. Harm
The false statement must harm the reputation of the individual. This harm can be in the form of damage to the person's character, professional standing, or personal relationships. The more provable the harm, the better their case.
4. Unprivileged Statement
Defamation claims typically involve unprivileged statements. Privileged statements, such as those made in courtrooms or legislative proceedings, are usually protected.
It's important to note that opinions, even if negative, are generally protected under free speech laws. However, if a statement implies false facts that damage a person's reputation, it may still be considered defamatory.
In self-publishing, authors need to be cautious about making statements that could be construed as false and damaging to an individual's reputation. This includes avoiding false accusations, misrepresentations, and statements that can be perceived as harmful to someone's personal or professional standing.
How to avoid defamation in self-publishing
To mitigate the risk of defamation and libel, self-published authors should consider the following:
1. Accuracy and Fact-Checking
Ensure the accuracy of statements in your work, especially those that could be considered damaging to someone's reputation.
2. Distinguish between Facts and Opinions
Clearly distinguish between statements of fact and expressions of opinion. Make it clear when you are presenting information based on facts versus providing your interpretation or perspective. You might consider preceding or following every such statement with "allegedly" to provide clarity.
3. Fictional Disclaimers
If your work is fiction and characters are not based on real individuals, consider including a disclaimer stating that the characters and events are products of your imagination and any resemblance to real persons, living or dead, is purely coincidental. This is common text to include on a copyright page.
4. Private Individuals
Be cautious when discussing private individuals, as they may have greater protection against defamation than public figures.
5. Know Your Region
Defamation laws can vary by jurisdiction, so it's crucial to be aware of the legal standards in the areas where your work may be published or distributed. If you have specific concerns or questions about potential defamation issues in your self-published work, consulting with a legal professional experienced in media law or defamation law can provide valuable guidance.
4. Legal Advice
If you have concerns about potential defamation issues in your self-published work, seeking legal advice from an attorney specializing in media law and/or defamation law can provide valuable guidance.
Being aware of defamation and libel considerations, exercising caution in character portrayals, and seeking legal advice when needed can help self-published authors navigate potential legal issues and reduce the risk of facing defamation claims.
As you proceed with your self-publishing journey, it’s important to stay informed and aware of laws and standards related to your work.
Happy writing and not-getting-sued!
**Nothing in this informational article should be construed as legal advice from the author. The practice of law is complicated, with specific rules and exceptions for different jurisdictions and circumstances. Generic online advice is not a stand-in for professional legal advisement in particular cases.**
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