One of the most essential steps an author must take prior to publication is to review their manuscript for risk of liability and legally sensitive material, otherwise know as “vetting” the manuscript.
Not all books require vetting. Nonfiction books almost always require vetting because the stories involve real people, events, and corporations. Fiction books, however, are less likely to need legal review because the stories involve imaginary people and events.
For the books that do require legal review, there are several good reasons do so before publication. A thorough legal review to avoid potential liability will be far less expensive than the cost of defending yourself in court. Plus, just think of the stress and hassle you will avoid if you can preempt litigation.
The vetting process is basically the same for traditional published or self-published books. An attorney with publishing law experience will review the manuscript for potential liability arising out of issues like: defamation, invasion of privacy, obscenity, breach of contract, as well as intellectual property infringement, such as copyright and trademark. Legal review is not limited to only the manuscript. A lawyer must vet every word or image associated with the book (e.g. the forward, illustrations and photographs, the front cover, back cover copy, advertisements, and press releases). A traditional publisher will use their in-house legal department to vet the manuscript. A self-publisher must hire an attorney to do the same job.
So how do you know if your book needs legal review for potential liability? Ask yourself these six questions and you can easily make an informed decision.
1. Does the manuscript include work created by others?
If so, then vet the manuscript for copyright infringement and determine if the fair use exception or public domain applies. The risk is using another’s copyright work, which can be words and phrases (verbatim or paraphrased), photographs, illustrations, charts, or graphs. While the proper attribution helps, each instance of borrowed material must be evaluated separately on its own circumstances.
If your manuscript contains copyright protected work by another, you’ll need to determine if work is in the public domain, if the copyright material used is substantially similar to the copyrighted work, or does the fair use exception apply.
A. Public Domain:
Public domain is a legal term and a fairly detailed area of law that refers to creative materials not protected by intellectual property laws (i.e. copyright, trademark, or patent). In general, when creative work enters the public domain, the public owns it and anyone can use it without securing permission. Once the work is in the public domain, no one owns it and you can use it freely without fear of infringement.
There are three main avenues for creative work to become public domain material: a) The work is no longer under copyright protection (either the copyright expired or the copyright owner for a work published before 1964 failed to renew the copyright); b) The copyright owner dedicated the work to the public domain; and c) The work failed to meet the requirements for copyright protection.
Determining if a work is in the public domain requires factual research (e.g. checking the US copyright records) and a legal analysis (on a case-by-case basis) to determine if the work firs within the three categories above.
B. Substantial Similarity:
Substantially similar is the basic test for copyright infringement. As with a public domain analysis, each copyright infringement case is fact specific when reaching a legal conclusion of similarity between two creative works. Obviously, the more a work resembles another work, the higher the risk of copyright infringement.
C. Fair Use:
The fair use exception allows the use of copyright protected work under certain circumstances without permission. Like public domain, fair use is also a rather complicated area of law. Often it is hard to figure out what is considered fair use and what is not.
Generally, something is considered fair use if the use is for purposes of criticism, parody, news reporting, classroom teaching, scholarship, or research. The most common example of fair use includes brief quotations in a review or scholarly work, or copying for educational purposes.
There is no bright line rule as to what qualifies as fair use. To determine if the fair use exception applies, courts consider four factors:
1. The purpose and character of the use;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used; and
4. The effect on the market of the copyrighted work.
While all factors are not equally important in every case, all should be considered when making a determination if fair use applies to the infringing work in question. If you need more information on fair use, see my earlier article here.
If the public domain and fair use exceptions do not apply to your use of the creative work in question, then determine who owns the copyright-protected work and secure a license or written permission to use it. For more information on how to seek permission, see my earlier article here.
2. Does the manuscript use trademarks?
If so, then vet the manuscript for issues of trademark infringement, disparagement, and dilution.
Usually when we think of trademarks, brand name products come to mind, like Velcro, Vespa, or Valium. These types of trademarks are generally what we sprinkle through our creative works. But a trademark can also be a phrase, symbol, logo, design, or shape – like the Michelin Man made of tires, or the plume of a Hershey’s Kiss, or the catch phrase “Where’s the beef?” Just about anything qualifies as a trademark if it identifies a product or service in the marketplace and distinguishes the source of that product or service from other sources.
To understand what basic guidelines to follow when using trademarks in your great American novel, it helps to consider what rights come with a trademark so you can steer clear of infringement.
Trademark rights allow the owner to prevent someone from using a trademark in a way that is likely to confuse consumers as to the source of the goods or services. Normally, infringement is not an issue for writers. We are not selling Gucci handbags. The question we should ask is whether the use of the trademark in our manuscript confuses or deceives consumers as to the source, sponsorship, or affiliation of the book. If it does, then the use is unauthorized.
For example, if your character works at the ice rink and drives a Zamboni, use of the trademark Zamboni would not lead consumers to believe your book was created or sponsored by the Zamboni Company. You are not selling a Zamboni. You are merely referring to Zamboni’s own product, a Zamboni ice resurfacer. According to the courts this kind of use is considered fair. Likewise, the risk is low when you mention a trademark in passing, such as a character that eats at McDonald’s. But, place the trademark on the book cover in hopes of boosting sales by implying the Zamboni Company endorsed your book, then you better check your mailbox for a cease-and-desist letter. Because Zamboni would likely think your use of the trademark constitutes infringement.
Trademark Tarnishment and Defamation:
Portray a trademark in a negative light, destroy its commercial value, and you have tarnished the trademark. One of the most famous tarnishment cases I remember from law school was a claim by the Dallas Cowboy Cheerleaders that the porn movie Debbie Does Dallas tarnished their trademark when the porn stars wore Dallas Cowboy Cheerleader uniforms.
To avoid disparaging a trademark in your manuscript, do not depict a brand name, company, or their product in a highly offensive way. Instead, invent a fictional brand or company. Or, in the case of Debbie Does Dallas, use a generic cheerleading uniform. You will save yourself some legal hassles and have more fun creatively (plus you can disparage all you like). However, if the work is a parody or the statement is true, no matter how damaging (like the deaths linked to faulty ignition switches in certain General Motors cars), then you are clear to use that fact in your plot or mention it in your narrative.
The basic gist with dilution is keeping the trademark from becoming less distinctive. The classic example is using Xerox to mean photocopying. Or Google to mean searching the Internet. Or Kleenex to mean tissue. Using these trademarks in a generic sense makes them less distinctive and lessens the ability of a consumer to distinguish the goods or services from others because the trademark becomes synonymous with a general class of products or services. Words like aspirin, cellophane, kerosene, and thermos were once trademarks but now signify a general class of goods.
To avoid running afoul of trademark dilution, stay away from genericising a trademark. You would not say – she googled her crush. Instead, use the unbranded version – she searched his name on the Internet. Or, she used Google to search his name on the Internet. Do not ask to have a kleenex. Ask to have a Kleenex tissue. Or just a tissue. When you use a trademark, make it more distinctive (and less generic) with capitalization. Once the courts declare a trademark generic, use it as you wish. For example, “She wrapped the aspirin in cellophane and dropped it in the thermos full of kerosene.”
For more information on using trademarks in your fiction, see my article here.
3. Does the manuscript involve damaging content about real people or companies?
If so, then vet the manuscript for defamation and invasion of privacy issues.
Defamation covers two torts: libel and slander. Libel is the publication of a false statement that injures a person’s reputation (as opposed to slander, which covers the verbal form of defamation). A libelous statement must be false and factual. The defamed person must be living and need not be identified by name. The real person need only be identifiable to readers via the information provided. Business entities and small identifiable groups (like a lacrosse team) can be defamed too. And there must be some degree of fault by the writer (like malice, reckless disregard, or negligence).
The general rule writers should follow when creating fictional characters based on real people is either: 1) do nothing to disguise the character based on the real person, and avoid depicting them in an unsavory manner; or 2) substantially disguise the character so readers cannot identify the connection to the real person, then be as defamatory as you want.
The problem arises when the writer does not disguise enough so the connection between character and real person is easily linked, or he wrongly assumes the real person will not consider his statements defamatory. If you portray a person or corporation in a positive light, the legal risks are low. If you portray them in a negative light, the legal risks get higher.
If you are writing about a real person or corporation, the best tactic is to stick to the truth, your opinions, and the public facts. If you find yourself subject to a claim of defamation, your best defenses would be truth, opinion, or parody/satire.
–Truth is a complete defense to a defamation claim. No false statement = No libelous statement. Even if minor inconsequential facts are incorrect, libel does not exist if the overall statement is true.
–Opinions are protected (because opinions are neither true or false). This defense, however, can be tricky to navigate. Just because you say it is your opinion will not keep the statement from being defamatory. Merely implying a false statement can be enough. “In my opinion, she is an alcoholic” is just as defamatory as “she is an alcoholic.” The best way to utilize this defense is for the writer to provide in their work the underlying facts on which the opinion is based. For example, “She was convicted of a DUI, and then went to rehab.”
–Parody and satire genres exaggerate material for comic effect, which is not considered to be true or a statement of fact.
These are defenses, which means you use them after you have been sued. Instead of relying on a defense, do your best to avoid a libel claim before you publish.
Invasion of Privacy:
People have the right to be left alone. When private facts that are not in the public interest are publicly disclosed, invasion of privacy has occurred.
While the truth can deflect a defamation claim, often the truth when disclosed can be the basis for an invasion of privacy claim. Usually, invasion of privacy occurs when:
1) Private facts that are not of public interest are disclosed;
2) There has been intrusion into a person’s secluded life; or
3) Someone is portrayed or misrepresented in a false light, i.e. portrayed in way that is highly offensive to a reasonable person.
For invasion of privacy to apply, the injured person must be living. The disclosure of private facts must cause harm to the person’s reputation (personal or professional). Mere embarrassment usually is not enough. And the information must not be of public interest.
The fact disclosed must be a fact that an injured person has a reasonable expectation would remain private. If the act or facts you have written about occur in public, then most likely there is no expectation of privacy.
Public figures and celebrities usually have trouble proving invasion of privacy because their lives are of public interest and there is less expectation of privacy. Leniency is given to a memoirist for disclosure of facts in his own stories versus a journalist or biographer telling someone else’s story.
For more on invasion of privacy, see my earlier article here.
4. Does the manuscript use the name, image or likeness of a living or dead person?
If so, then vet the manuscript for Right of Publicity issues.
Misappropriation of the right of publicity is using someone’s name, likeness, or identifying characteristics for advertising, merchandising, endorsements, promotional, or commercial purposes without their permission. The law normally applies to the living, although some states will extend the right of publicity to a person/estate of someone who is dead. And it only applies to a person who makes money from who they are, i.e. famous people.
If you do not have permission, do not use someone’s name or likeness for commercial purposes. Just because you spilled a cocktail on Liza Minnelli at a party does not mean you can use her picture on the cover of your memoir to boost sales. But permission is not required if write a biography, screenplay, or news article about a famous person because the right of publicity yields to the First Amendment.
Likewise, you would not add Lee Child’s endorsement on your book if he has not given one. Nor would you claim an unauthorized biography of Madonna was authorized. Use common sense – no taking advantage of their reputation for commercial purposes without permission.
And of course, a real person, famous or not, can make cameo appearances if you stick to the facts that are in the public domain (e.g. interviews, reputable news articles, and court transcripts).
For more on right of publicity, see my earlier article here.
5. Does the manuscript provide advice that might affect someone’s well-being (e.g. legal counsel or mental health advice or financial guidance)?
If so, then vet the manuscript for necessary disclaimers.
Most of us are familiar with disclaimers. As consumers, we have used umpteen products and services accompanied by a disclaimer. Generally, a disclaimer is any statement intended to limit liability for the use of something, like a product or service. The language puts the consumer on notice that the product manufacturer, seller, or service provider will not be held liable for use of the particular item, information, or service. For writers, this means disclaimers would limit liability from our published words, whether in books, short stories, and essays, or on websites and blogs, for claims like defamation, invasion of privacy, personal injury, or relying on information to their detriment.
As long as the disclaimer contains easy to understand language that limits liability you think you might be subjected to, then you are on the right track. Any verbiage designed to limit liability serves as both a warning and mitigation of risk. While it is good to use disclaimers, especially ones that are accessible and easy to understand, there is no guarantee a well-worded disclaimer will shield a writer from liability.
If you want more information about disclaimers, see my earlier article here.
6. Does the manuscript include explicit sexual content?
Is so, then vet the manuscript for obscenity issues.
One of the narrow categories of free speech that the government can suppress is obscenity. Under federal and state laws, most forms of obscenity fall within the freedom of speech. But if the obscenity reaches a high-test threshold, like hard-core, sexually explicit pornography, the speech is not protected and can be regulated by the government.
If your work contains sexually explicit material, make sure you know if it runs afoul of state and federal obscenity laws.
Ultimately, the vetting process will force you to make an assessment with the help of a lawyer as to the risk you might incur with the publication of your manuscript. Some risks maybe low and tolerable. Others maybe by high and require further changes prior to publication, or at the very least an understanding of how legally sound the defense is for those particular items of concern.
Good luck and may you avoid litigation.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.