Liability is an issue even for the best of writers (Part II)
Published: January 8, 2008
As Dorothy K. Fletcher wrote her novel The Cruelest Months, she worked in a motif that would speak to her subject. She came up with the idea of using an excerpt from a literary work to introduce each chapter. Her protagonist was a teacher, so each excerpt would be part of whatever the teacher was using for a particular class. Fletcher had to contact publishers in order to obtain permission for copyrighted works. Maya Angelou allowed the Florida author to use lines of poetry for free; all Angelou wanted was an attribution. But other publishers, like Toni Morrison's, wanted to be paid. "I started by contacting Morrison's publicist," Fletcher said, "and then the publicist forwarded the request to the publisher." For others, Fletcher contacted the publisher directly. Fletcher obtained permission to use 75 words from Morrison's novel The Bluest Eye for $35.
By doing her homework ahead of time, Fletcher saved herself possible headaches. If a writer is unsure what constitutes fair use of someone else's work, it pays to be safe rather than sorry. "If you have the time/opportunity to get permission to use some/all of someone else's work, get it," says attorney Aimee Bissonette. "That eliminates the copyright infringement risk entirely. Otherwise, use no more of the copyrighted work than you need to adequately report on your subject. Avoid using the key bit from the copyrighted work, even if it is only a small amount-think about the trouble the book reviewer got into when the reviewer disclosed a short, but key excerpt from former president Gerald Ford's memoir!"
Bissonette goes on to explain that fair use does allow you to use someone else's copyrighted work in limited instances without permission of the copyright owner. "In determining whether your use qualifies as fair use," Bissonette explains, "four factors must be evaluated." One of those factors is a top priority-your purpose or reason for using the work. "Non-profit, teaching and research uses are allowed more frequently than commercial uses," the attorney says.
The nature or characteristics of the work you want to use is another factor-the use of factual, historic or scientific works is favored over the use of fictional and other highly creative works. A third factor-the amount and/or substantiality of the portion you want to use-requires an evaluation of the quality and the quantity of the work you want to use. "Not a straight word count," Bissonette emphasizes. "Steer away from using large portions of a work or portions of the work that are considered key or central to the work."
Finally, consider the effect of your use of the work on the marketability or value of the work. "If your use negatively affects the sale or value of the work, it is not likely to be viewed as fair use," Bissonette notes, adding that applying these four factors can be difficult. "Unfortunately, copyright law does not provide hard and fast rules. The four factors are intentionally flexible so they can be applied to all different types of copyrighted works."
Other legal claims can arise, such as the issue of plagiarism when a writer is accused of taking credit for ideas or words written by someone else. Or a writer may face problems if someone's email, published or unpublished letters, papers or conversations are published without the subject's permission.
Copyright registration isn't required for the protection of a written work, although traditionally courts will not award damages for copyright infringement of a written work unless the work has been officially registered through the U. S. Copyright Office. Many writers who maintain a blog or Web site are satisfied with using the copyright symbol, a 'c' inside a circle, followed by the writer's name and the original year of publication. While this does satisfy the requirement for a visible symbol, only full registration with the government office will usually result in monetary damages being awarded if your own work is used without permission.
Journalists have the option of liability insurance as protection against copyright infringement and defamation. Publishers are increasingly writing into the contract a clause that leaves the writer holding the bag if a law is broken. It's up to each writer to determine the value of liability insurance, and whether the cost is justified.
As writers increasingly turn to the Web, and self-publishing becomes more acceptable, liability is an issue no writer can ignore. Taking pains to cover yourself from the beginning legally, as Fletcher did with her novel, can save what might be a great deal of pain later on.
Aimee Bissonette is a Minnesota lawyer, teacher and writer who works primarily in the areas of copyright, trademark and rights licensing. She currently is writing a book for Corwin Press on the legal issues associated with technology in K-12 schools. Web: Little Buffalo Law & Consulting.
Visit the U.S. Copyright Office for more information, and to file forms.
--Jan. 8, 2008
Anyone who's worked in a corporate environment knows the meaning of strategic planning. But it's a good tool for writers too. Read my next Web Savvy to learn how successful writers use Web resources to plan for the year ahead.