Writing Legalities: Things Indie Authors Don’t Always Think About

Did you know that fonts are copyrighted and that you can’t just use any font you want on the cover or interior of your book without licensing it or getting permission? You either have to choose one in the public domain (and be certain it really is in the public domain), or you have to pay to license the use of the font, create your own font, or else get written permission to use a font for your book, especially if you plan to sell it anywhere.

Did you know that the images you find online through Google Images or other online searches are not free to use just because someone posted them online and that they too are copyrighted to the photographer who took the photo? You, again, have to get written permission to use them.

Did you know that going to the free stock photo sites online and choosing pictures there for your book cover might not work, because each image uploaded by the photographer might have different licenses attached to them, and you might not be able to use them, even though they say they are free to use, if you plan to sell your book commercially to more than a certain number of people or to reproduce a certain number of books, or else you have to make a derivative work of or change the image in a tangible way to use it and on and on and on.

The point I’m trying to make here is this: Many indie authors are self-publishing right now and aren’t even thinking about the legalities of what they’re doing. Some are doing it ‘innocently’ enough, in that they aren’t truly aware that what they’re doing is illegal–but the old saying is, Ignorance is not an excuse for breaking the law.

Do you know what a mess it would be to put your book out there, start selling tons of copies, make it on a few best sellers lists, only to have someone come along and accuse you of being a thief–and probably rightfully so–and stealing their images, font, or other copyrighted material? You’d have to pull your book, pay royalties or licensing fees to the copyright holder, lost sales, and the worst of all, a lawsuit. And you’d lose too.

And what about all those trademarked terms you’re using in your novel, but without respecting stylization and the trademarks’ owner? Do you have your characters reaching for a kleenex instead of a tissue? Did someone in an office make xeroxes instead of copies? Both Kleenez and Xerox are brand and company names, and both of them are trademarked. You can’t use them without either respecting the trademarked stylization and use them right or get permission.

You can sometimes get around this in little quirky ways. Living down here in the South, a lot of people call diapers that babies wear pampers. Pampers is a brand name, a brand of diaper, but a lot of people down here will ask, “Do you need me to pick up some pampers for the baby?” But they are buying Luv’s brand when they ask, not Pampers brand.

And the worst offender down here in Texas is coke. When someone asks you, “Do you want a coke from the store?” Down here, that can mean 7-up, Dr. Pepper, Root Beer–basically, it means any fizzy beverage to drink–coke. But the reality is, Coke is a brand name of a particular type of soda or soft drink.

So in your book, if you have them asking for a coke–it should be Coke, with the capitalization to respect the stylization of the brand–and they better mean a Coca Cola product. Otherwise, you might have legal issues. There are exceptions, like for characterization where you clearly make your intent known to your reader and the trademark infringment is so obvious that it’s not necessary to explain. Otherwise, you can’t do it.

And while you might not think this stuff is important, I can tell you that big publishers are very careful about this stuff and they do all the legal legwork for you. When you’re going indie to self-publish though… no one looks at your legalities for you. And maybe you think that doesn’t matter, but it does. If your goal is to make it big, to break out and get famous and well known or even to make a decent amount of money, you need to do it the right way. If you have a major legal issue in a self-published book and then a big publisher catches wind of you due to success, you don’t want them to push you away because of legal problems. And if your book becomes a huge best seller, you don’t want some business to tie up your royalties and success with a legal battle. Or worse, as a writer, for someone to accuse you of infringing on their copyright for ‘stealing’ photos and fonts.

You absolutely HAVE to think about these things if you’re going to self publish. Shoot, it helps to think about them if you’re going to submit to a publisher, because making your manuscript as close to publish-ready as possible always helps cinch the deal–but at least with a reputable, big publisher, they’ll catch any you might miss.

Sure, using a font that might look familiar probably isn’t going to get you in any trouble. After all, you’re just one of thousands, hundreds of thousands, of indie published book authors out there, right?

But if you want to stand out from the crowd of indie publishers, let me tell you: Legal issues aren’t the way you want to stand out.

Read, research, learn. Self-publish the right way or don’t self-publish at all. It’s your book’s future, your career and your reputation on the line if you don’t.

Just think about it and do the right thing.

Love and stuff,

Michy

cooltext939920976

 

USING TRADEMARKED TERMS AND BRAND NAMES IN WRITING

 

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7 comments to Writing Legalities: Things Indie Authors Don’t Always Think About

  • Buffy  says:

    There are quite a few folks out there who seem to think that anything that occurs in print, on the web, or in any form of media makes that item, somehow, public domain. Many of those same people would defend to their deaths their own perceived copyrights or jurisdictions should someone else violate them. The law involved is not that difficult to understand or implement… it’s pretty much common sense and consideration for others… (you might see “All I Really Needed to Know I Learned in Kindergarten” by Robert Fulghum as a primer in the subject).

    If someone doesn’t know or want to learn the legalities, then hiring a knowledgeable editor and/or a graphic artist will go a long way toward keeping a writer from a legal faux pas that could trip him or her up on a journey to fame, fortune, and best-seller status in a self-publishing career.

    • Michy Devon  says:

      Great point I should have added, Buffy! If you’re hiring a cover designer or book formatter, be sure to ask them if getting proper licenses on the images and fonts they use is part of the cost and clearly spell out who is responsible for the designs and images if someone argues they are copyright protected and infringed images!

      Thanks for the comment!

  • Rissa Watkins  says:

    I thought that certain copyrights- like Kleenex and Xerox were used to such a great extent that they kind of lost those copyrights- like they couldn’t sue if I said I needed to Xerox these copies.

    • Michy Devon  says:

      It’s not copyright in that instance–it’s trademark. And yes, to a certain extent, they do lose the ability to sue for trademark infringement, up to a point. When a word is entered into the Lexicon as a ‘common usage word’ then you can have your characters say the word without any problems. If I had a southern character say, “Hey, buy me a Coke at the store?” It’s okay if that character gets a Sprite instead… that helps characterize the person in the book and Coca Cola can’t do much about it.

      BUT the writer can’t or shouldn’t use it in their writing. Whether it’s a trademark issue or not, it’s not proper. Also, we can’t all possibly know which words a judge will consider common usage and which words he or she won’t consider common usage. Just safer not to use it.

      OR if you do use it, that you respect the trademark. Think about the legal disclaimer at the front of my books: “All trademarks are respected with appropriate capitalization, stylization or attribution. Any other licensed material, should it exist, is used with permission.”

      Other ones many don’t know are: Popcicle, Jacuzzi, and even Heroin.

      And believe it or not, the word Aspirin is still a trademarked term for Bayer. The real name is acetyl salicylic acid.

      Wiki has a listing of some generic vs. brand terms: http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks

      It’s always better to err on the side of caution when you don’t know know. But the interesting part of this is that it sort of proves out my point: A big publisher would have a legal department that knows these things and protects the publisher and author. An indie author is left to navigate the potential minefield alone!

  • Bradlee Frazer  says:

    Dear Ms. Devon:

    Thanks for your post. Great information. You may find some benefit to also sharing these two links to guest blog posts I wrote for Jane Friedman: http://janefriedman.com/2012/06/15/trademark-is-not-a-verb-guidelines-from-a-trademark-lawyer/ and http://janefriedman.com/2013/07/15/the-fair-use-doctrine/.

    Best regards,
    Bradlee Frazer

  • Michy Devon  says:

    More discussion and great information on the forum:
    http://accentuatewriters.com/viewthread.php?tid=19399

  • MarkDSwartz2  says:

    Thank you Michelle for reminding us newbie novelists of the legal niceties we might otherwise overlook.

    It is so easy to get caught up in building your social network, crafting a plot outline, and worrying about how to market the book you haven’t even written yet, that important elements such as respecting copyrights and trademarks barely even blip on our radar.

    All the best,
    MarkDSwartz2
    MarkDSwartz on Facebook

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