As part of the 2021 Virginia Festival of the Book, Jacqueline Lipton, law professor, consultant, and literary agent, discussed her accessible, reader-friendly handbook for authors, agents, and editors in navigating the legal landscape of the contemporary publishing industry, in conversation with publishing expert Jane Friedman. In Law and Authors: A Legal Handbook for Writers, Lipton addresses issues of copyright, explaining fair use and public domain; trademark and branding concerns; laws that impact the ways authors might use social media and marketing promotions; and privacy and defamation questions writers may face.
This event was presented as part of the 2021 Virginia Festival of the Book’s Virginia Writing & Publishing series, hosted by these writing centers and organizations across Virginia: 1455 Literary Arts, James River Writers, The Muse, Randolph College MFA, Watershed Lit Center for Literary Engagement and Publishing Practice, and WriterHouse.
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Watch the video of this event and read the transcript below:
Thanks to our bookseller for this event, M. Revak & Company.
“An excellent resource for authors seeking to understand their legal rights and responsibilities. Jacqueline Lipton explains complicated legal doctrines in simple and clear language, using relatable real-world examples. Lawyers should add this book as recommended reading for their clients.” —Lydia Pallas Loren, Professor of Law, Lewis and Clark Law School
“Lipton has a gift for distilling complex legal terms and concepts into language that not only enlightens, but empowers. Smart, entertaining, and extremely useful, this is a guide you will turn to time and again, whether you’re writing your first book or publishing your seventh.” —Bree Barton, author of the Heart of Thorns trilogy
“Lipton’s comprehensive, clear, and eminently approachable handbook is essential reading for authors who want to navigate their rights and responsibilities as writers.” —Brianna L. Schofield, Executive Director, Authors Alliance
Thanks to WriterHouse for hosting this event.
CAROLYN MERRICK: Welcome, everybody. Thanks for coming today. This meeting will be recorded, so if you want to hear it later, you can. I’m Carolyn Merrick. I’ll be your host today. You’ll be muted throughout the presentation. If you have any questions or comments, you can always put them in the chat, and Jane Friedman will answer those or field those after Jackie is finished talking.
This event has closed captioning, which you can turn on and customize at any time by using the closed captions tab at the bottom of your window. And here to introduce our speakers is Liza Nash Taylor. Liza is the vice president of the board of WriterHouse. She’s a local historical novelist living in and writing about Keswick in her recent novels Etiquette for Runways and All in Good Faith.
LIZA NASH TAYLOR: Hi. Welcome to Law and Authors: Jacqueline Lipton in Conversation with Jane Friedman, a program in the all-virtual 2021 Virginia Festival of the Book, a program of Virginia Humanities. I’m Liza Nash Taylor, vice president of the board of WriterHouse, a nonprofit writing center in Charlottesville that promotes the creation and appreciation of writers. Thanks for joining us.
If you haven’t read today’s book, we hope you will. For details about how to buy it from our bookseller for the event, M. Revak & Company, please visit vabook.org, where you can also explore our full schedule and watch past events. While you’re there, please consider making a donation to support the festival’s ongoing work at vabook.org/give.
This program is one in a series of six devoted to Virginia writing and publishing, presented by writing centers and organizations across Virginia. In addition to WriterHouse, other hosts are 1455 Literary Arts, James River Writers, The Muse, Randolph College MFA program, and Watershed Lit. The full series of events are at vabook.org.
Now, I’m pleased to introduce our speakers today. Jackie Lipton is the author of Law and Authors: A Legal Handbook for Writers. She’s a literary agent, a law professor, and an attorney with international experience in teaching authors and creative artists about the law of the publishing industry. Jackie holds an MFA in writing from Vermont College of Fine Arts, an LLB from the University of Melbourne, and a PhD from Cambridge University.
Jane Friedman has twenty years of experience in the publishing industry. She’s the editor of The Hot Sheet, the essential industry newsletter for authors, and has previously worked for F+W Media and the Virginia Quarterly Review. In 2019, Jane was awarded publishing commentator of the year by Digital Book World, and her newsletter was awarded media outlet of the year in 2020.
Thank you for joining us today. Jackie and Jane, I’m going to turn it over to you.
JACQUELINE LIPTON: Thank you. Thank you so much for having us.
JANE FRIEDMAN: Thank you. Yes. I’m just going to dive right in, and I’ll start by saying that, Jackie, I’ve got your book right here. I can say this is the first time I’ve probably enjoyed reading a book on the law. Apparently, my cat is very interested in this conversation as well. It’s widely appealing to all demographics.
JACQUELINE LIPTON: Good to know.
JANE FRIEDMAN: I think you do such a great job of using things that have actually happened, things that we have read about in the news. If you’re in the industry already, you’ve probably heard of some of these cases. And you really break it down in a way that I think is understandable. So I just want to put that out there. It’s actually an enjoyable legal read, and it’s not fiction.
JACQUELINE LIPTON: Thank you. I have to say I’m so pleased that you said that because that was the intent. I had looked at what was out there, and there were a lot of very heavy legal books for writers, and then there were craft books that had a page saying, hey, this is what a copyright is, and there was nothing really in between. So I’m really glad you got that from the book.
JANE FRIEDMAN: Absolutely. I think you just put it all in really plain English with some real voice and levity. So thank you. I’m going to start off with questions that I know writers ask because I’ve heard them ask them for many years now. And I’m sure there’s probably already a few in the chat that relate to these issues. For those who are joining us, I’m planning to go about maybe thirty minutes or so with some planned questions, going over some of those questions that I know many writers have. And then we’ll get into the chat and answer some of your questions that you’ve brought with you today.
So let’s start with protecting ideas or protecting your work, especially when you’re still unpublished. I know some authors are really worried that their ideas are going to get stolen by agents, by editors, by other writers. So how do you advise writers who are up at night about this?
JACQUELINE LIPTON: Yeah, it’s a really, really tough one because I’m sure most people here know that our legal system doesn’t protect ideas for a story. I mean, copyright law protects the expression of your ideas but not your actual ideas. But I think what a lot of people don’t realize is how unusual it is—you know, even if someone took your concept or independently came up with the same concept—because I’m an agent. It happens all the time. I see multiple submissions with very, very similar concepts by people who clearly don’t know each other. That does happen too. But everyone expresses it differently. That’s why copyright protects the expression and not the idea.
I mean, there is this registry—I talk about it in the book—the Writers Guild of America West in Hollywood. They have like an idea registry because, in that sector of the entertainment industry, there is theft of ideas, and people like to go on the record and say, hey, this is my script concept. But that’s not legal protection anyway. It’s more of an ethical norm. And novelists can use that registry, but it doesn’t give you legal protection.
JANE FRIEDMAN: Right. So it sounds like you’re saying the protection is really in the execution of that idea.
JACQUELINE LIPTON: Yeah.
JANE FRIEDMAN: So I think that offers some reassurance.
JACQUELINE LIPTON: Yeah, I think people should be reassured. Because I sit on the other side of the desk, where I look at a lot of manuscripts. They’re all different, even the similar ideas. They’re so different. And you hear the one story that’s apocryphal, but that’s not the norm.
JANE FRIEDMAN: Right. So let’s go a step further. When writers have a finished manuscript, before they really get in the weeds with the submissions process, do you think they ought to register for copyright or not?
JACQUELINE LIPTON: I think it really depends on what you want to do with it. And a lot of this is more again the norms of the industry than kind of what’s legally correct. If you’re thinking that you might self-publish, I would certainly register. You know, if that’s on your mind. Because you’re the one who’s going to register. If you’re thinking of going the traditional publication route, it’s typically the norm that people don’t register their copyright before submitting to agents. And you don’t put the copyright notice on. It’s not a no-no, but you really are submitting a draft, which is going to get worked on and worked on by agents and editors. And that final version is the one that’s going to get registered. There’s nothing wrong with registering it before you send it out, and it’s easy, and it costs thirty-five dollars-ish, and you can do it online. But you don’t need to.
JANE FRIEDMAN: I think—you’ll have to correct me if I’m wrong about this, since you’re the legal expert and I’m not—but there is some protection for your work even if you don’t register for copyright. Is that correct?
JACQUELINE LIPTON: Yeah. And I should make that point before I talk about registration. I sort of jumped straight to registration. Yeah, this is what confuses people in America a lot. Because we’re I think the only, or one of the only, countries that has a copyright register. So in most countries, including the United States, you own copyright as soon as you write the thing. As soon as you reduce your idea to a tangible, digital piece of paper or physical piece of paper, you own copyright in it.
We still have a register, which is a relic of an older time, which gives us a lot of protection. Because owning copyright is all well and good. There’s a lot of limitations on being able to enforce your copyright in the US if you haven’t registered it. So it’s really at the point when the manuscript is going out into the world, into readers’ hands, that you have to get registered. If you’re just sharing with agents and editors, you hold that copyright at that point already. And it’s tricky because people talk about, should I copyright this book? You don’t do anything to copyright a book. You own the copyright as soon as you write it. But you do have to register it at some point.
JANE FRIEDMAN: Yes, good. Okay, so that’s helpful. Now let’s switch over to respecting other people’s rights. There’s always a lot of confusion around whether or not one needs permission to quote something, whether it’s in your book or maybe you’re posting something online on a blog. Is crediting your source enough? And as long as you don’t plagiarize, you’re okay. Can you address when the line is crossed between “I’m just quoting and I don’t need permission” versus “I’m infringing.”
JACQUELINE LIPTON: Yeah, so this is really where people get very confused as well. There is a big difference between copyright and plagiarism. Plagiarism is the thing about giving credit where credit is due. Plagiarism is the thing about, if you take my work and use it and pretend it’s yours and don’t give me credit for it, that’s plagiarism. But in the US, we do not have a writer’s law of plagiarism. We do have the Visual Artists Rights Act, which deals with plagiarism with respect to visual arts. But that doesn’t help writers.
Copyright is just about copying. So a direct quote that you have reproduced without permission theoretically could be a copyright infringement, because you’ve taken someone else’s words and copied them. Whether you give them credit or not isn’t the issue. The issue is are they upset that you copied their words. Because if they are, they can complain about copyright infringement.
Where permission comes in is not attribution. Permission is a contract. So if I get Jane’s permission to take something from her blog and put it on my blog, that’s a contract between me and Jane, where she’s licensing me to use her words. And she may say, as a condition of the license, I have to attribute it to her. But that’s a contract. Attribution doesn’t get you out of the copyright infringement.
JANE FRIEDMAN: We’ve got a question right away that builds on this. It’s, I think, maybe the most popular “permissions” question. What if it’s a song lyric? Can you use a few lines of a song without permission?
JACQUELINE LIPTON: And this is like you ask twelve lawyers, and you’ll get twelve different answers. It’s very context-specific in American law, unfortunately, because we have this fair use defense, which is very—I’m going to use the legal term—it’s very floofy. It’s very fuzzy. You’re never really sure whether something is a fair use or not up front until a court says so. So that’s why, if you publish with a traditional publisher, they are always going to tell you—or usually going to tell you to get permission.
I would say a good 90 percent of the time that someone quotes a song lyric in their novel, it’s probably a fair use. But there’s no bright-line rule in American copyright law; so, Penguin Random House is often going to say to make sure you have a license to use that because we don’t want to take the risk that we’ll get sued.
People just want a straight answer to that question, “Can I just quote a song lyric?” And it’s like it depends on, if in the context of your book, it’s a fair use. And if the publisher is okay with taking the risk that someone is going to complain.
JANE FRIEDMAN: So I know that there isn’t a bright-line rule, even though people would like one. But can you maybe summarize or point out some of the dangerous territory, let’s say, that authors—when they start doing X, they’re in the greatest danger of infringing rights? Can you point to any cases where authors really need to be careful?
JACQUELINE LIPTON: I would say—and this is also not a very satisfying answer—look at who the copyright holder is or whose estate holds the copyright. Because some copyright holders are known for being very litigious: The Sherlock Holmes estate, the Elvis Presley estate. A lot of famous people’s estates sue people left, right, and center. So if you follow the news stories, and you see who is constantly litigating or threatening litigation, that is actually the best bright-line rule. Because so many copyright holders really don’t care, and a lot of this is fair use anyway. So really the best rule is—I mean, the Conan Doyle estate sues everyone all the time, and they keep losing—but just because they scare people, and it costs more money to litigate than to just pay them a license fee, people just pay them a license fee.
JANE FRIEDMAN: So you could just Google, in other words, the author or work that you’re quoting from and see if there’s lawsuits connected with it.
JACQUELINE LIPTON: Yeah. For example, the vampire—Interview with the Vampire. Anne—
JANE FRIEDMAN: Anne Rice.
JACQUELINE LIPTON: Anne Rice. She’s very—on her website, she says, “I don’t want people using my characters. I don’t want fanfiction. You know, these are my characters.” So the likelihood is that she’s not going to be happy about you quoting from her books, right? I think that’s the thing. It’s not a legal answer, but I think it’s the best thing to do.
JANE FRIEDMAN: Yeah, yeah. So now we get into the issue of fanfiction, which is very interesting. In my career, I feel like it’s just grown and grown and grown and grown in popularity. I think obviously part of that is the internet. In fact, the top-selling book of the 2010 decade—or books—was the Fifty Shades of Grey trilogy, which started out as fanfiction. Twilight fanfiction. Can you talk about the rights or issues surrounding that kind of work? Why does Fifty Shades of Grey get to go out into the world but maybe Anne Rice fanfiction doesn’t?
JACQUELINE LIPTON: Yeah, so this goes back to the point I just made. Stephanie Meyer is not going to sue E. L. James. She’s publicly said she won’t sue her. If Stephanie Meyer felt more litigious, I think there would’ve been a really good case. I don’t think anyone here actually wants to do this exercise, but being a copyright law professor, I have done this exercise. I put the two first books side by side. It’s a really interesting exercise. If you read Twilight book one and Fifty Shades book one, they’re the same book. As a copyright person, there is a really strong case for copyright infringement—the scene-for-scene lines of dialogue—it doesn’t have to be an exact copy to infringe copyright. It just has to be substantially similar. And there’s a really strong case.
So E. L. James’s publisher, when that first book came out, said, “Well, we filed off the serial numbers.” So in the fanfiction version, Masters of the Universe, she used Edward and Bella. And then she changed the names to Christian and Ana, I think. So the publisher said that’s okay. No, it’s not. What is okay is that Stephanie Meyer said, “That’s not really interfering with what I’m doing, and I’m not going to sue her.”
JANE FRIEDMAN: Could she change her mind? Just curious.
JACQUELINE LIPTON: She has gone back and forth. The latest thing—I just follow this because I’m a vampire geek, and I’ve written a lot of lore review articles about vampire books. I’m just obsessed with vampires. So the latest thing between the two of them was that when E. L. James published the trilogy reworked from Christian’s point of view, and everyone knew that Stephanie Meyer had this book Midnight Sun, which actually just came out. But she was working on it ten years ago, and it got leaked onto the internet, and she got very upset, and she said I’m not working on this anymore, and that was the end of it. And then E. L. James did the thing with her Christian Grey version. And then Stephanie Meyer—and you can Google this—then she got into all these media interviews and said she was thinking about being upset about copyright because that was taking the idea of Midnight Sun. But, again, she didn’t sue. So it’s fun to watch, but copyright litigation is expensive and difficult and unpredictable, and it’s not always a great idea.
JANE FRIEDMAN: So there are a couple questions in the chat that I think I know exactly what you’re going to say in response, but I think it might help emphasize the point that there is no bright-line rule and it depends. So let’s just try a few, and we’ll see where it goes. Can you quote a few lines of old newspaper articles without getting permission?
JACQUELINE LIPTON: Same. It’s the same answer. If it’s in the public domain—if it’s so old that it’s out of copyright—then that’s fine. But if it’s still within its copyright period, then the same answer.
JANE FRIEDMAN: And we may need to define public domain here for anyone who maybe isn’t familiar with that. But I think right now it’s prior to the year 1924.
JACQUELINE LIPTON: Twenty-four, I think, yeah.
JANE FRIEDMAN: Yeah. So anything published prior to that date has fallen into the public domain, and you can do whatever you want with it.
JACQUELINE LIPTON: Correct.
JANE FRIEDMAN: Can one quote another book right after the title page if you list the name of the book and the author’s name?
JACQUELINE LIPTON: I’m not sure I—so where are you—you’re quoting what from the book? The quotes from the book or the title of the book?
JANE FRIEDMAN: My guess is this is where authors really like to quote someone else’s work right before they start their own because this is going to be what—
JACQUELINE LIPTON: Oh, like an epigraph.
JANE FRIEDMAN: Yeah, an epigraph.
JACQUELINE LIPTON: Yeah, yeah, yeah. You know, that’s the same answer. So I’ve heard—and this is completely wrong. So I’m saying this, but I’m prefacing it with saying it’s incorrect. Some people say you can quote other people’s work as a book or a chapter epigraph, but not in the text of the book, because the epigraph is fair use and quoting it in the text is not. That’s completely untrue. It’s all a fair use question. So don’t get fooled by that. It may or may not be fair use. It may or may not be copyright infringement. And the copyright holder may or may not want to sue you.
JANE FRIEDMAN: So there’s always, I guess, some amount of risk in doing this, and it’s about trying to apply that fair use test. There are four factors, right? So I am thinking through those factors and how much risk I am willing to enter into by using the material without permission.
JACQUELINE LIPTON: Yeah. And do bear in mind that, if you work with a traditional publisher, they’ll guide you through it. They’ll say, here’s our stance on what we’ll allow you to put in your book. Here’s the permissions that we need you to get—at usually the author’s expense. Sometimes the publisher will pay, but usually the author has to pay for copyright permission. And if you don’t get permission, they won’t let you put it in the book. If you self-publish, then you have to make those judgment calls for yourself.
JANE FRIEDMAN: Yeah. When I worked at a traditional publishing house, we gave our authors a bright-line rule just to be easy about it. We said if it’s beyond three hundred words from a full-length book, you have to give us a permission. And it got more difficult when someone was using poems, and then we also had a book on the craft of song lyrics, which was a nightmare. It was a bestselling book that we did. It originally came out in 1978, and every editor who oversaw that book and its sales wanted to do a new edition, but the permissions were just—it was a nightmare, and no one would take it on.
JACQUELINE LIPTON: And actually I know we’ll probably talk about images later. But in my own book, I had to go through it with this book, right? And the last chapter is on using other people’s images. And I had to get permission—you know, I’ve got the Obama Hope image and a couple of pictures in here. But two didn’t make it into the book because we couldn’t get the permission, and UC Press wouldn’t let us use them. And it was because I wanted to use the Annie Leibovitz Demi Moore pregnancy poster beside the Leslie Nielsen Naked Gun 33.3 movie poster that was a parody of it. And Paramount just wouldn’t take my calls when I tried to get their permission. And Annie Leibovitz’s lawyer was so offended by the thought that we might make a little black-and-white thumbnail of her beautiful art that they wouldn’t give us permission either. So that is not appearing in this book.
JANE FRIEDMAN: Okay, so we’ve had a request to explain the fair use test. This gets into really technical territory, but perhaps you can just put it in very simple terms.
JACQUELINE LIPTON: Yeah, so this is the reason why American copyright law is so much trickier than some other countries. And it’s a feature, not a bug. I say that in the book. American copyright fair use is created in this very floofy, flexible way to enable courts to adapt to new technologies, new ways of copying. So that’s why we don’t have a bright-line rule. We have these four factors that Jane alluded to.
Where some people get confused is they Google, and they get the law from another country. Like the UK has very, very detailed fair dealing guidelines in the copyright statute. We do not have that. So our Section 107—you don’t need to know that section, but it’s in Title XVII of the code, and it’s the Copyright Act—basically says if you use someone else’s work for purposes like scholarship, teaching, news reporting, commentary, etcetera, it could be a fair use if—and then there’s these four factors. And it’s basically the nature and character of the work you copied, the amount you took, the purpose that you took it for, and what kind of impact you might have on the market for the original work. And I go through this all in the book. I actually give lots of different concrete examples and talk you through how you could parse it out in different situations.
What it often boils down to in practice really is the commercial side. So there’s four factors. Two of them are about money. One is what is the purpose for which you’re using it, and is it a commercial or a noncommercial educational purpose. And the fourth factor is what impact are you having on the market for the original work. And those are the two factors courts tend to rest their laurels on. They say, look, are you interfering commercially. And that’s why a lot of fanfiction doesn’t become problematic. Because a lot of it just isn’t commercial, isn’t interfering—in fact, it’s enhancing the market for the things that they’re writing about. But when you get into sort of E. L. James territory, and there’s this huge market—again, she’s probably not competing with Stephanie Meyer—but she is making money that she could have paid a royalty to do. So a lot of it is money, at the bottom line.
JANE FRIEDMAN: A clarification question before we move on. Is it okay to mention things like song titles in your book instead of quoting the lyrics?
JACQUELINE LIPTON: Yeah, titles are typically fine because titles get very little intellectual property protection in the US. Typically, that comes up in the trademark context. You can’t really copyright a title because that comes under what we call de minimis. It’s just too small. It occasionally comes up in the trademark area, but you can’t really trademark a book title. The sort of First Amendment values override that. So typically you’re fine with titles. Straight answer. Look, a lawyer gave you a straight answer.
JANE FRIEDMAN: Thank you. Finally.
JACQUELINE LIPTON: Yes.
JANE FRIEDMAN: So let’s shift to writing about real people. Because this is another minefield, especially for people doing memoir—writing real-life stories. Let’s say I’m writing a memoir that I know is going to upset my family. I’m airing all the dirty laundry. Some people are alive. Maybe some are dead. It’s a mix. It’s all true, though. At least from my perspective, it’s all true. What should I do to protect myself legally? Should I get release forms? Will the publisher help me with those issues? Should I just pray and hope for the best?
JACQUELINE LIPTON: Mmm-hmm. And I should say here’s another area where different countries are different. So if you’re publishing in the US, that’s what I talk about in my book, although I make some comparisons with other countries. I come from Australia where a little action we like to call defamation is much easier to succeed in Australia than it is in the US. So you have to look at your market carefully. So let’s assume I’m talking about America right now.
In a way, we’re lucky as writers because America has fairly weak defamation law. Because the defamation law is always balanced against this very powerful First Amendment right. And that’s one reason why you hear things like you can’t defame a public figure. Public figures have very limited ability—there’s a much higher standard for a public figure to succeed in a defamation action that would include celebrities, etcetera.
But when you’re talking about memoir—people in your life—and you’re writing what you view as your truth, there’s two things that generally will stop a successful defamation action. One is truth. Truth is always a defense to defamation. If you say a true fact, it’s not defamatory. Because defamation is a false statement about someone else that might harm their reputation. So if you make a true statement about someone else that might harm their reputation, that’s not defamation.
Also, if you’re expressing an opinion, it’s not defamation. And your truth may, in fact, just be your opinion. So a false statement about someone else that harms their reputation—that’s the test. Well, is it opinion rather than fact? Is it true? Those are defenses.
Now that’s the law, right? Most authors—because I dabble in memoir. I love memoir. I read a lot of it. If you read interviews or talk to memoir authors, most of them actually do sort of run their work by the people they’re saying stuff about, if they can—not to get permission, but just to say, “Hey, I’m doing this. I just want you to know.” Very famously, Carrie Fisher, I think, showed her last memoir to Harrison Ford because she talked about an affair she had with him. And I think he wasn’t thrilled about it, but he’s a public figure and whatever.
So there is sort of a norm that people do that—not so much for permission but to sort of prepare the person. And that’s, I think, an ethical thing to do if you can. But you can’t always.
JANE FRIEDMAN: So what if you fictionalize it? Let’s say you’ve decided it might just be too much trouble to tell the truth. There might be lots of reasons for that, not just legal reasons. So you’re going to fictionalize. From a legal perspective only, does that keep you out of hot water?
JACQUELINE LIPTON: Well, again—oh, I didn’t say this I suppose. So I won’t say “again.” You can get in trouble in defamation law with fiction writing if it’s so clear from the fiction writing who you’re talking about and that you’re making a false statement about them that will harm their reputation. In the book, too, I talk about cases involving fiction where it’s a movie, and the director gets sued, or it’s a book and the author gets sued for defamation even for fiction. It’s very hard to win those cases because, by definition, fiction is your opinion. So it’s really hard for defendants—for plaintiffs—sorry, to win them. I’m a lawyer. I know the difference between plaintiff and the defendant.
JANE FRIEDMAN: So maybe to help people with a concrete example, either some sort of defamation case involving a book was either won or lost?
JACQUELINE LIPTON: Yeah, so the one I think I use as a chapter starter in the defamation chapter—it’s somewhere in the defamation chapter—is if you remember that book Primary Colors from some years ago that was made into a movie with John Travolta and Emma Thompson about Bill Clinton’s first run for the Democratic primary. And in fact, it’s not the Clintons who sued. It was a very secondary character. So there’s a character portrayed in the book who’s, I think, a librarian in the Bronx, who they make it very clear in the book—and also in the movie—that she had an affair with Governor Stanton. And, she sued. The real-life librarian sued for defamation, and she lost, largely on the basis that changing her name, the city in which the incident happened, her job title—so instead of head librarian, she was something else—that was enough to not make it defamation.
JANE FRIEDMAN: I wonder if this is why memoirists and novelists, too, are so often told to just change some small details about what really happened. Because of that particular case.
JACQUELINE LIPTON: Right, right. You don’t have to do much for a court to just say that’s a fictionalization, that’s an opinion. The other thing to bear in mind is that the person complaining has to be identifiable as the person you’re talking about. But not identifiable by her herself or himself—by the general public, right? So just because I look at something someone wrote about me and I think that’s clearly me, if no one else thinks that or very few other people think that, then it can’t hurt my reputation.
JANE FRIEDMAN: And why would you bring attention to it if you’re the only one who knows?
JACQUELINE LIPTON: This is what—okay, read Anne Lamott’s book, Bird by Bird. Has everyone read that book and the last chapter, and she talks about this exact question? She says very few people do recognize themselves in your work. And to the extent they do, just give them really small genitalia, and they won’t draw attention to it. So she does say that in her book.
JANE FRIEDMAN: Good expert tip there.
JACQUELINE LIPTON: Yeah.
JANE FRIEDMAN: All right, so I’m going to just ask one more question, and then I’ll open it up to those who are with us watching. New writers often worry they’re going to get taken in by a bad agent, and there have been a couple recent incidents of this lately, where it’s just really high-profile, bad behavior on the part of literary agents. Sometimes it involves lost money. Sometimes it’s just bad representation. Can you speak to agent-author contracts or agreements? What to expect, what’s normal, and how authors can protect themselves?
JACQUELINE LIPTON: Yeah, it’s a tough issue. And I think there’s really two questions there. One is what the contract says, because sometimes there are red flags in a contract. I can certainly talk about those. Sometimes it is the person. People do bad things. People in reputable agencies do bad things. So I talk about some cases in the book where there’s been fraud and actual criminal proceedings against accountants in agencies who’ve stolen money and stuff like that. And, that’s nothing the contract will deal with. That’s just something that like “bad stuff happens.” And unfortunately, authors are going to be largely unsecured creditors. Like if an agency goes into bankruptcy because of all this bad behavior, authors may get nothing, because you end up being an unsecured creditor in the bankruptcy.
But putting that situation aside and focusing on the contract, most author-agent agreements are actually pretty simple. They shouldn’t be more than two to three pages, and they really should track the common law principles of agency, which is just that the principal—that’s the author—instructs the agent—I know the agent gives you the contract. But you’re the principal. The agent’s the agent. The agent works within the scope of what you allow them to do. So if the contract says this person represents all your [unintelligible] or your whole body of work or your nonfiction projects or whatever, that’s all the agent is allowed to do. It will usually be for a commission. The agent will take their 15 percent or whatever it is. It will usually be that the contract can terminate on thirty-ish days’ notice. Sometimes there’s an initial period you’re locked in for, like a year or eighteen months, because that’s how long it can take to polish up and sell a piece. But even then, if you tried to break that contract, it’d be fairly easy because courts don’t enforce contracts for personal services by specific performance. They don’t force you to work with someone, especially in states like California too.
So the things to sort of watch out for are if an agent asserts ownership or control over any of your manuscripts. The agent doesn’t take copyright in your work. The agent only has the power to make deals for your work, not to hold copyright. The agent gets no rights in the work itself, other than the commission money. The agent shouldn’t be charging a fee for reading your work. The only time agents really should charge or do charge fees reputably is critiques at conferences and stuff. Then you’re not paying them as an agent. You’re paying them to do a critique of your work. A lot of agents are freelance editors, and so that’s a different capacity.
I have seen contracts where the agent will say that you can’t try and sell a work that we’ve worked on with you, if you move to another agent. Generally, that’s okay if it’s for a limited period of time, like it’s for six months. Because if the agent has worked on this thing with you, and then three months later you go out and sell it with another agent, you’re sort of making money off their work. So that sort of thing—that’s in our agency contract, and that’s pretty standard.
But I have also seen ones that say you cannot ever go out and deal with the work that we worked on with you. That’s probably not enforceable anyway, but that’s a red flag.
JANE FRIEDMAN: On occasion, I’ve seen clauses that say the agent has a right to 15 percent, even if the author has a reversion of rights from the publisher, and then self-publishes that book.
JACQUELINE LIPTON: Oh, that’s interesting. I haven’t seen that. But, yeah, that would be worrying. Because the agent is always entitled to the 15 percent of a deal the agent has brokered. But once the rights are reverted and the author is doing something else, then no. So, yeah, that would be a red flag.
JANE FRIEDMAN: So very early in the chat, John asked about a contract he signed with an agent that’s been a long time ago—twenty years ago. The agent was going to have a large publisher consider the book, but it was rejected, and the agent never represented him again. So he’s wondering if that twenty-year-old contract would still be enforceable by the agent.
JACQUELINE LIPTON: I mean, you’d have to look at what the contract says. It may be. It’s possible. But if that’s the case, you probably just want to send a termination email and just say that I am just confirming that this contract is over. If both parties are treating it as if it’s over, you probably want to—it may have a provision that says if nothing is sold—I mean, it probably says that you can terminate at any time, and it may be that it’s still alive, and you should just terminate it.
JANE FRIEDMAN: Yep. Okay, we’re going to open it up to questions from everyone watching and listening. I do have a couple just queued up to go through as we wait for the questions to come in. Natalie asks what are the legal implications, if any, in using nicknames that may sound derogatory for real people in a memoir? For example, let’s say the person’s real name is Pinkus, and I use Pink Eye for his infectious personality.
JACQUELINE LIPTON: I mean, again, you’re probably in vaguely defamation territory, but that’s an opinion, isn’t it? You’re making a joke there. So I would be really surprised if that was a problem.
JANE FRIEDMAN: Marisa asks if you suspect that there’s going to be a legal issue with your book—let’s say it’s a memoir and you’re worried about some of these issues—would you advise consulting with a lawyer prior to seeking an agent or a publisher?
JACQUELINE LIPTON: I think it sort of depends on you. I don’t think it’s necessary. I mean, I don’t think you need to go and incur legal costs before you get an agent. Because an agent can give you a sense of whether we need to get this vetted before we send it out. If you feel more comfortable being able to put in your pitch letter that I have talked to a lawyer—but as an agent, I wouldn’t expect that.
JANE FRIEDMAN: Okay. Marsha asks, “Can I republish a story I wrote in 1994?” This was in a children’s magazine. She wants to republish it or self-publish it as a book. The magazine has changed hands, but it’s still the same magazine other than the ownership.
JACQUELINE LIPTON: Well the question is, what did your publishing contract say? Because a lot of the magazine publishing contracts only give them a first right of publication, and you’re free after that. If they did take a larger copyright license or assignments, you’d want to check. So if you can dig up your old contract, it should be clear from what you signed.
JANE FRIEDMAN: Let’s see. Kate asks, “I’ve heard authors say they are waiting to get their rights back for their book from the publisher. Why do they need to wait? Isn’t it their work?”
JACQUELINE LIPTON: Yeah, so this is—okay, so much of what—if you haven’t already intuited this, so much of what we’ve been talking about this hour has been contract law. Licenses. You own your copyright, but you assign it to someone or you license it to someone. So how publishing works—it’s an interplay between your copyright, which is your property, and the license you give to someone else to use it. And that’s why agents, I think, can be really worth the money. Because they look at those things up front and discuss them with you, and they see it a lot.
So what will typically happen in a traditional publishing contract is that you will license your work to the publisher, but it will be a fairly comprehensive license. You’re giving them a lot of rights usually for a significant period of time. Many, many publishing contracts don’t say anything about rights reversion. So when they finish selling the work, you have to actually go and ask for your rights back, and you have to wait. This is what you’re asking. You have to wait for their rights department to process that. What a good agent should do for you or will always try to do for you is to try and either keep a lot of the rights. Or at least the rights that they’ve given to the publisher, they’ll get a reversion clause in there which will say if you, publisher, haven’t exploited this for a certain amount of years, we get our rights back. And if the book goes out of print—and you have to have a definition of “out of print” there now because of digital publishing. So make sure that “out of print” doesn’t just mean—I mean, “out of print” has to mean no one’s buying it—not that there’s a copy available on Amazon, because that can be forever.
But that’s what it means. It means you have to go back and look at what your contract said. It’s like if I give Jane my copy of my book and I’ve leant it to her, and I might have said to her you can have this for three years, and she’s given me some money for it, so I have to wait three years to have it back. It’s just a license.
JANE FRIEDMAN: I can say from my own experience—I’ve negotiated my own publishing contract with a university press. Because I used to be on the publisher side, negotiating, so I was familiar with the language. Don’t try this at home, folks. For the rights reversion, I said if sales dipped below a certain dollar amount per royalty period, then I get to ask for the rights back.
JACQUELINE LIPTON: Yeah, and it can be a dollar amount. It can be units sold. It should have, as you say, a period attached to it. So like for one royalty period or two consecutive royalty periods, if the publisher hasn’t sold more than X units or X dollars, then it’s out of print. Then, your rights revert. Absolutely.
JANE FRIEDMAN: And I only recently learned of this. Maybe you can elaborate on exactly how or when it applies—or if I heard wrong. But I heard that the US law says that if you signed a contract, I think it’s thirty-five years ago, and the contract was written in such a way that maybe you can’t get your rights reverted, you can still ask because it’s been so long.
JACQUELINE LIPTON: Yeah, that provision is in the copyright act. It’s usually not a tremendous amount of help because it really does only apply when it was thirty-five years ago. But you can’t—yeah, there is that rights reversion built into the copyright act for these like full assignments that were given a long time ago, that you are entitled to ask for your rights back.
JANE FRIEDMAN: Yeah. But that, of course, wouldn’t help anyone who had signed something within the last twenty years or thirty years or thirty-five years.
JACQUELINE LIPTON: It doesn’t come up often, but it is in there.
JANE FRIEDMAN: Okay. How do you find out who owns the copyright to something if you want to ask for permission? Like song lyrics or that book that was published in the sixties and the publisher went out of business. How do you do it?
JACQUELINE LIPTON: This is where it’s nice that we have a copyright register. Because we can search the copyright register, which won’t necessarily tell you everything because not everyone registers everything. Like you don’t register every blog page you write. But bear a thought for the countries in which I used to practice that don’t have copyright registers. And you have to actually do detective work. You have to actually find the publisher and find who owns the publisher now and do this and do that. Like here, at least as a first port of call, the copyright register is digital. And it’s a public record, and you can go search it. So that’s really, really helpful.
The harder question is, how do you find out if something is in the public domain? And that’s much harder. For literary works, yeah, it’s basically anything before 1924. But we’ve had situations with music, where some foreign works came out of copyright and then went back into copyright because of a change to the Copyright Act. That’s a tough one. But actually finding the copyright owner isn’t always that hard if you use the copyright register, if you use Google searches. Yes, there are such things as orphan works, which aren’t registered, and you can’t find the owner. And they could come out of the woodwork and say, “Hey, you’ve infringed our copyright.” But it’s not as bad here as in Britain or Australia.
JANE FRIEDMAN: If you do determine that something is still under copyright, should you contact the publisher, the author, the agent?
JACQUELINE LIPTON: It sort of depends. I typically start with what the copyright notice says. So I publish with University of California Press. The copyright is in my name. So if you were wanting to copy from my book, if I were me, I’d ask me, and then I would say, “Well, UC Press has a license, so we have to get their permission too.” I usually start with the copyright notice and reverse engineer. But once you find at least one person who has a license or a right, you can usually—
I mean, when I was doing the photo permissions in my book, the Obama Hope poster that I used—the copyright is jointly held by the Associated Press and Shepard Fairey, because his art is based on their photograph. So once I found the Associated Press Digital Archive, they then gave me Shepard Fairey’s details. So you can usually—it’s not that hard with the internet.
JANE FRIEDMAN: Let’s see. Someone is wondering—I think we had promised maybe to get to this. Image copyrights and what’s the best way to search for an image copyright, and can you just speak generally to—well, you’ve been talking about it for your own book—but what that process is like.
JACQUELINE LIPTON: It’s really hard. Images can be really hard. If they’re very well known—and particularly with digital searching, it’s not as impossible as one might have thought. And, if people put copyright notices on them. So I guess the images that people are really wanting to be proprietal about and get paid for, they will put a copyright notice or a digital watermark or something that will enable you to do that process. But if it’s like just something you found on the internet, that may have been infringing a copyright—like Pinterest is filled with copyright infringement.
You were talking about the book with—how to write song lyrics book. I was once approached as a consultant to work on a book that had like eight thousand photographs in it that were from someone’s estate that covered photographs taken over about six decades in three different countries. And I was like this is impossible. And they wanted it done in like two weeks. I’m like that’s not going to happen, unless you want to take that risk.
So it’s hard. But, again, it’s like with the really litigious estates of literary works. You know, I know Annie Leibovitz is not going to let me copy her picture without her permission. And even if I don’t know that, my publisher knows that, and they’re going to tell me that. But sometimes you do have to do without an image.
And the blog thing—the social media thing is a huge trap. Because statutory damages for copyright infringement can be huge. And copyright is what we call a strict liability tort. The person complaining—the copyright holder—doesn’t have to prove you had a bad intent when you did it. That’s not part of copyright. The fact of copying is the wrong. So that you can be paying tens or hundreds of thousands of dollars of statutory damages for sticking something on a blog post that you didn’t even realize was a problem. It doesn’t happen often, but it does happen.
JANE FRIEDMAN: So obviously on Pinterest, as you point out, and Twitter and Facebook and all of these social media sites, there’s a lot of infringement going on. Do people just decide it’s not worth their time to go after all these cases?
JACQUELINE LIPTON: No, I mean, people go after them all the time. Again, it depends on—if it’s a Disney image, yep, Disney is going to get it taken down. If you’re on YouTube and it’s something from Paramount’s movie, they’re going to get it taken down. The law helps the copyright owners because when there’s a digital platform in place like Pinterest or YouTube or Wikipedia or whatever, what the law now says is, if the copyright holder goes to YouTube, Wikipedia, etc., and says, “This image infringes my copyright,” they have to take it down immediately, or they risk being held liable for copyright infringement. So they will always default to removing it. You then have the opportunity to say, “Hey, that wasn’t an infringement,” and ask them to put it back up again. But the onus is on you to prove that you weren’t infringing. So that’s like a deal that was brokered fifteen years ago between Congress and all the content holders. But, yeah, there’s stuff taken off YouTube and Twitter—Pinterest seems to just do whatever it wants—and I don’t get what’s going on there. But, yeah, there’s a lot of infringement.
JANE FRIEDMAN: We didn’t touch on trademarks except just for a really brief moment. We just glided right over that. But if you want to mention specific products like Kleenex or Post-it Notes or Kellogg’s Corn Flakes, do you need permission for that?
JACQUELINE LIPTON: Usually it’s fine because usually what you’re doing is not making what the law would consider a trademark use of the Kleenex or whatever. If you’re referring to something in passing as a descriptive aspect of your work, that’s usually not a trademark infringement. If you use someone’s product so much that it suggests an association or an affiliation with that company, that’s more problematic. But that’s not usually what authors are asking about. They’re usually saying, well, can I just say that my hero likes drinking Coke? And that’s typically fine.
JANE FRIEDMAN: Is there any problem if you’re portraying those products in a negative way? Like the Coke—Coca-Cola is poisoning people or something like this?
JACQUELINE LIPTON: So there’s two legal things that can arise. There is such a thing as corporate defamation. So it’s not just individuals in the US that can bring defamation. Corporations can too. It’s pretty hard for them to do that, particularly because we have the First Amendment, and you have the right to express an opinion, and all that kind of thing.
JANE FRIEDMAN: Is that what’s happening now with Dominion, the voting machine company?
JACQUELINE LIPTON: Yes, yes. Yes, that’s a case of corporate defamation. Exactly. And then the other thing is trademark dilution, which is different to infringement. Infringement is where you’re suggesting like a sponsorship or an affiliation or confusing consumers. There’s a bunch of different dilution actions, but the one we’d be talking about is tarnishment. So that if you cast someone’s product in a negative light, there is this dilution by tarnishment action. It’s very hard to win one of those. And usually, if you look at the cases that win, they’re usually what I call sex, drugs, rock and roll cases. It’s usually when you’re suggesting something really offensive in a sexual way. It’s typically not that you just said that they were a bad company. But there are a few cases out there.
JANE FRIEDMAN: We only have a few minutes left, and I thought I would end on maybe like a fun little case study, where I give you something—I set up the scenario of what happened to me, and I’m wondering how you would decide on this issue.
So this book—this is Encyclopedia Brown and the Mysterious Presidency of George W. Bush. And it says in small letters (a parody). And this is by a humor author, John Warner, that we were working with at the time. So it’s Encyclopedia Brown solving the mystery of how George W. Bush became president. In exactly the same style. For those who aren’t familiar with Encyclopedia Brown books, they’re like middle-grade chapter books that have quick little cases. So there’s The Case of the Missing Weapons of Mass Destruction, The Case of the Vicious Smear. And then just as in the Encyclopedia Brown books, you turn to the solution at the back of the book.
So we received a cease-and-desist letter about one month prior to the book’s release. We had already printed ten thousand copies. They were sitting in the warehouse, waiting to go out. And we had to decide if we would go ahead with the book and publish, or if we would pulp everything and take it off the market. So if you—if I’m allowed I want to see—we did get legal counsel on this, of course. If you were our legal counsel, what would you say?
JACQUELINE LIPTON: I would have to look at the—you know, because it’s so fact-specific—I would have to do what your legal counsel did, and I would have to look at the book. But it is a really difficult one because parody—when you’re talking copyright law—comes under that fair use scenario. And different district courts—so depending on what court you would end up in, they take a different view about is parody a standalone defense? Is parody part of the fair use test? And I think the prevailing view goes to the fair use factor one. So it’s a commercial use, but there’s this transformative use idea that courts have read into that first factor. And so you have to look at how transformative it is of the original. Does it play off the original to add new insights and understandings? Or does it take unfair commercial advantage of the original to sell your own work? And that’s probably exactly what your legal counsel said.
JANE FRIEDMAN: Yes, yes. They said this was not a critique or—it wasn’t transformative. It was just ripping off the idea of Encyclopedia Brown to sell a political humor book. And so all of the copies were pulped except the one you see in my hand.
JACQUELINE LIPTON: Yeah, well that’s exactly the same as The Cat Not in the Hat scenario. The parody of O. J. Simpson’s trial was done as a Dr. Seuss book. And all the rhymes were about the O. J. Simpson trial. Same result, right? Because they were saying this is not, in fact, a parody of Dr. Seuss. This is using Dr. Seuss to bring commercial advantage to your book that is critiquing something else entirely.
JANE FRIEDMAN: Yep, exactly.
JACQUELINE LIPTON: Oh, I’m sorry.
JANE FRIEDMAN: I hope that helps someone out there to avoid pulping a lot of books. It was a heartbreaker.
JACQUELINE LIPTON: I’m sure.
JANE FRIEDMAN: Okay. Well we’re now at the top of the hour, and thank you so much, Jackie. And everyone who’s watching, please consider buying Jackie’s book. As I said at the top an hour ago, if you weren’t here, it is such a readable book. You’re never going to find a more readable book on the law. And of course, it’s hopefully going to save you a lot of frustration, anxiety—it’s going to save you from losing sleep. It explains fair use in great detail, with examples. You can get it from your independent bookseller. You can use the link provided at Virginia Festival of the Book. That’s vabook.org. And then make sure that you check out other events that the Virginia Festival of the Book is offering over the next week or so. And that’s at vabook.org.
All right, so I think that’s—I don’t think there’s anyone else who’s coming in for housekeeping after me, so thank you all, again, for joining us. Have a wonderful weekend.