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Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic s**t.”
Writers face three big risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity. Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit?
First, a simple rule. If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.
For instance, you may thank someone by name in your acknowledgements without their permission. If you are writing a non-fiction book, you may mention real people and real events. However, if what you write about identifiable, living people could be seriously damaging to their reputation, then you need to consider the risks of defamation and privacy and how to minimize those risks. I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer.
Common sense and a cool head are key.
First, let’s start with a quick summary of United States law. (The laws of other countries are more favorable to the targets. In today’s Internet environment, you could get sued in France for a blog written in California.)
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (target) must prove all of the following:
False Statement of Fact.
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Opinions are also protected because they are not “facts.” Couching something as an opinion is not bullet-proof. Courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The more specific a statement, the more likely it will be seen as a statement of fact. Parody is not defamatory if the absurdity is so clear no reasonable person would consider the statements to be true.
Of an Identifiable Person:
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published:
One person (other than the target) must read or hear the statement.
Causes reputational harm:
The statement must be more than offensive, insulting, or inflammatory. It must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Made With Actual Malice or Negligence:
If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.
Invasion of Privacy Claims
Even if you publish the truth, you may still be sued for invasion of privacy if you disclose private information that is embarrassing or unpleasant about an identifiable, living person and that is offensive to ordinary sensibilities and not of overriding public interest.
The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket. Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.
The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits.
Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest. Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest.
Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when the perpetrator makes a privacy claim.
In any situation, however, writers should try to get releases from people who will be recognizable in their work.
If you cannot get a release, then consider changing the person’s name and identifying characteristics. Yes, this is permissible, even in memoirs.
Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.
Misappropriation of the Right of Publicity
Using someone’s likeness, name, or identifying information for advertising, promotional, or commercial purposes may get you sued. Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries.
Right of Publicity claims are limited to:
- Advertising: Using a person’s image in an advertisement. Same applies for using look-alikes or sound-alikes. Bette Midler won $400,000 from Ford after they used a singer to mimic her voice in an automobile commercial.
- Merchandise: Selling t-shirts, mugs, greeting cards and other products with unauthorized images.
- Impersonations: Impersonating a celebrity for commercial purposes. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
- Implied endorsements or relationship: Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws.
Other Limitations on Using Real People
Are you are subject to other restrictions? As an attorney, I cannot use any confidential information about a client, even if I change the name and mask the identity. Same for therapists, doctors, accountants, and other professionals. If you are a trustee, partner, or have a fiduciary relationship with a third party or a minor, you have a duty not to bring harm onto the other party by disclosing private information.
Have you signed a confidentiality agreement? Many public figures require their staff to sign tough confidentiality agreements.
If you were a party to a dispute settled out of court (including a divorce settlement), your settlement agreement probably contains nondisclosure and non-disparagement clauses. You could unwind the settlement by blabbing.
At your job, you may learn valuable trade secrets such as formulas, marketing plans, and manufacturing details. If you disclose that trade secrets, even if true, you could find yourself out of work and facing a lawsuit.
How to Limit Your Risks
Considering the hundreds of thousands of books published each year, there are relatively few lawsuits against authors. Claims are difficult to prove. Most targets don’t sue because they do not want to call attention to a matter best forgotten. To reduce your risk of being one of the unlikely few, authors should consider the following:
- Don’t say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. Instead, stick to verifiable facts and your personal, emotional responses. Remember the old adage, show, don’t tell. Let your readers come to their own conclusions.
- Be cautious about saying something like “don’t do business with xyz company.” Tell the story of your experience with the company. Your readers will get the message.
- If you base a fictional character on a living person, mask identifying features. Change physical details and life histories so the character is not recognizable. The more villainous the character, the more changes you should make. The same is true if you are using a company as an evil character, such as a polluter.
- Use parody and satire. If what you describe could never be true, then it is not a statement of fact. That’s how The Onion and other satire sites get away with headlines such as Brad Pitt Decides To Grow Out Forehead Hair.
- Keep in mind that memories are subjective and tend to evolve over time. Verify and expand your memory by conducting research and interviewing others. Retain records to support your statements. When speculating, be clear you are taking a guess. State your opinions as opinions, not as facts.
- Get written consent and a release wherever possible.
- Think about the small players. In disclosing wrongdoing, you may harm some innocent bystanders.
- Consider how important the private information is to your story. Judges and juries can be moralistic and will punish someone who discloses confidential information gratuitously or maliciously.
- Rely on publicly-disclosed information, such as court documents and news reports wherever possible. Court filings are a rich source of juicy information.
- If you are writing a “getting even” book (to get back at a parent, spouse, boss, or someone else who made your life miserable), write the manuscript with passion, then put it aside for months, or even years. Then will you be better able to mask your character and make it universal. Better yet, wait until your target has passed away.
- Respect privacy. In today’s crowded world, privacy is more valuable than ever. How important to your story is that private fact?
- Don’t assume no one will go after you because you have no money. If you peeve someone enough, you may awake one morning to a process server banging on your door.
- Don’t use anyone’s name or image for advertising purposes without express permission unless that person has been dead for 100 years.
- Add disclaimers.
- If accused of a defamatory statement, consider publishing a retraction.
- Engage an attorney to review your manuscript.
- Always reach for the truth when writing—it’s the best defense.
This post originally appeared on the IndieBRAG blog.
SORRY, EVERYONE, BUT COMMENTS ARE CLOSED FOR THIS POST. I SIMPLY CANNOT KEEP UP WITH THEM ANYMORE. WITH OVER 150 COMMENTS, THE ANSWER TO YOUR QUESTIONS SHOULD BE IN THERE SOMEWHERE!
Looking for a photograph of a bull elk? Or a 1890s baseball card? Or a space shot from the Apollo moon launch?
Perhaps you have searched Creative Commons images and haven’t found exactly what you want. And you don’t want to pay a fortune or an attorney.
I’ve compiled a list of some little known resources of public domain images. As you will see, I had a lot of fun putting together this list.
Most of these images may be downloaded for free, but some of the sites charge a small “reproduction fee” or limit uses to non-commercial purposes. (Frankly, this restriction is legally questionable for public domain works.) Before you use an image, look for a link titled Rights and Permissions or Use Restrictions or something similar, since these permissions come in various flavors.
Almost all the sites request that you provide attribution to the source, always a good practice.
Take a moment and browse some of these sites. You’ll be inspired.
Self-Portrait by Paul Gauguin Courtesy of National Gallery of Art
Until recently, many museums did not make images of their collections available for download. Instead, they claimed a copyright in the photograph of a painting, sculpture or other art, even through the underlying work was in the public domain. This was a weak argument at best and seemed contrary to the purpose of museums to provide public access.
More museums are coming around and putting images of public domain works online and permitting free downloads, often of high resolution photos.
J. Paul Getty Museum and the Getty Research Institute: More than 87,000 images are available for any use (including commercial), including photographs of the art and architecture of Italy over 30 years by German photographer and scholar Max Hutzel (1913–1988), paintings, drawings, manuscripts, photographs, antiquities, sculpture, decorative arts, artists’ sketchbooks, watercolors, rare prints from the 16th through the 18th century, and 19th-century architectural drawings of cultural landmarks.
New York’ Metropolitan Museum of Art has released more than 400,000 images for non-commercial use.
Amsterdam’s Rijksmuseum offers thousands of images, again for non-commercial uses only. Register with the Rijks Studio for more information.
Here a 2013 list of museums opening up collection. The list keep growing.
The New York Public Library collections hosts a huge collection of images and texts. At least as of this writing, they are charging a fee and limiting permitted uses.
U.S. Government sites
Generally, if a work was created by a government employee, the work is in the public domain. This includes historical records, weather images, military shots, wildlife photographs, even electron microscope images of viruses.
Here is a sampling of sites:
Library of Congress
The Library of Congress has an expansive collection including personal journals from the Dust Bowl, early baseball cards, civil war maps, and historical images from the civil rights movement. Not everything is in the public domain. To determine the status of an image click on Rights and Restrictions.
For images of nature, weather and wildlife, try
For medical images such as MRI slices of the human body, try the National Institute of Health.
The Public Health Image Library of the CDC includes images of parasites and microscopic images of viruses including Ebola.
Even the Human Genome project offers public domain images.
The U.S. General Services Administration hosts a site full of information on government services and resources, including links to various sources of images.
Uncle Sam Photos claims to have a directory of sites for free government images.
States, communities, and historical societies maintain sites full of images, many of which are in the public domain. For instance here is a wonderful site called Kansas Memory maintained by the Kansas Historical Society.
The Kansas Memory site, like many others, places restrictions the use of its images, even those most likely in the public domain. They charge “reproduction fees.” I suspect their limitations would not stand up in court, but I am sympathetic to how thinly funded the historical societies are. So in all fairness, pay them their fees.
Here’s a non-government site which collects US historical images
Still haven’t found what you want? Here are lists of other public domain sites. This one from Wikipedia and another from Columbia University Library.
Have you found other valuable sources of public domain images? Please share them in the comments.
Flower Beds in Holland by Vincent Van Gogh; Courtesy of the National Gallery of Art
Pont des Arts in Paris
On bridges spanning the Seine in Paris and the canals of Venice, lovers place padlocks engraved with their names and throw away the keys. These colorful love locks create a touching testament to the promise of an unbreakable bond.
Don’t you wish you had such a lock on your writing?
Authors worry about piracy, particularly of their ebooks. I know I do. Every time I search my novel’s title COYOTE WINDS, I find sites offering a free or one cent downloads. I could waste a lot of time sending DMCA take-down notices.
Pont des Arts in Paris
It’s easy on a technical level for pirates to resell your ebook, especially if your ebook does not contain DRM, short for Digital Rights Management. DRM stands for any software or hardware device that deters unauthorized copying or viewing of content, such as e-books, music, and film. It is the lock and key for digital copyrighted material.
If you publish your e-book through KDP, then you have the option of adding DRM to your work or not. But SmashWords and other e-book publishers and distributors will not accept e-books with DRM. Surprised? I was.
DRM is controversial. You wouldn’t think so. You work months or years on a book. Of course, you put a lock on it to protect it against unauthorized copying and piracy. You lock your home and your car—why not your intellectual property?
Mark Coker, founder of SmashWords, explained his reasons for discouraging DRM on his BLOG:
- Printed books never die. They are lent to friends, donated to libraries, and sold as used books, and no one calls that piracy. Why impose tighter restrictions on e-books?
- “Obscurity is a bigger threat to authors than piracy.” I heard Mark say these words at a conference, and despite my dreams of being a New York Times best-selling author, I have to admit he is correct. I have given away hundreds of books intentionally, so maybe a few more are being given away unintentionally. The more people read my books, the more likely word-of-mouth will spread. And let’s face it, word-of-mouth sells books.
- The vast majority of readers are willing to pay a fair price for a good read. True, so far. I wonder how long that will last as we grow more accustomed to obtaining reading material on the Internet for free.
- DRM doesn’t work. Remember when the music industry tried to control unauthorized downloads by adding DRM? Remember people getting arrested? Well, that blew up in the face of the music industry as more people began to download music illegally out of spite, and software geeks proved getting around DRM was a piece of cake. DRM doesn’t stop the crooks. Of course, people say the same about locking one’s house, but I still do it.
Some people worry that not applying DRM to their intellectual property is equivalent to donating their work to the public domain. Legally speaking, no. You still own the copyright. But I recommend authors put a copyright notice and “All Rights Reserved” near the front of their e-books to put the world on notice of ownership. And register your work with the U.S. Copyright office within three months after publication to maximize potential recovery.
What are your thoughts about DMR? Should there be stronger protection for ebooks?
Today, I am going to answer questions posted by readers through emails, my website, and even Amazon reviews. I appreciated when readers take the time to ask questions. It helps me know what’s on your minds.
QUESTION: Oh no. I published my book last year and never registered it with the U.S. Copyright Office. Is it too late?
ANSWER: No, it’s not too late. You may register a copyright anytime within its lifetime (currently, life of the author plus 70 years). In fact, you must register your copyright before you can sue someone for infringement. And there are some extra benefits of registering promptly.
For published works:
- If you register your copyright before the end of three months after the date of first publication, you have the right to recover statutory damages, meaning you do not have to prove lost sales. Statutory damages are between $750 to $30,000 per work (and up to $150,000 per work if the infringement was willful). Plus, you may recover attorney’s fees and costs, making it easier to hire a lawyer on a contingency fee basis.
- If you register your copyright within five years after first publication, then your copyright is presumed to be valid. The defendant/infringer will have the legal burden of showing that your copyright is invalid. This is a strategic advantage in litigation.
- Registration provides notice to everyone that you own the copyright, making it harder for infringers to claim “innocent infringement.”
If your work is unpublished, you must register it before the end of the first month after initially learning your work was infringed in order to recover statutory damages and attorney’s fees.
Registration online costs $35. There is no reason to put it off.
QUESTION: Many child custody and other trials end with the parties entering into settlements and confidentiality agreements. How can I write about these cases or speculate about the settlements without violating some law I don’t even know about?
ANSWER: You may write about anything that happens in an open courtroom. Confidentiality agreements do not apply to information already made public in the courtroom or in court filings. In fact, court transcripts, testimony and pleadings are rich sources of material.
Regarding other confidential information, if you are not a party to the agreement and have no relationship of trust or responsibility with the parties (such as you are a parent, therapist or lawyer), you are not bound by the confidentially agreement. However, I would be cautious about using information obtained from someone who is bound by the confidentiality agreement. You could find yourself dragged into the dispute because you benefited from their breach.
QUESTION: For my book cover, I want to use a photo taken by a friend. He says he wants no money for it? I would like to compensate him if the book sells well. I also want to manipulate the image and combine it with others. I don’t want any problems later on, let’s say if his heirs want payment for the photo. Do I need some kind of agreement with the photographer?
ANSWER: I highly recommend your friend grant to you IN WRITING either (i) an assignment of full ownership of the photo, or (ii) an exclusive, world-wide, perpetual license, including the right to alter, manipulate and create derivative works of the photograph. I suggest you pay him something, or at least write out your promise to pay him upon reaching certain milestones, such as the sale of x number of copies.
Your agreement is valid even if it is not in writing, but all you would have is a non-exclusive license (permission) to use the photograph. The photographer or his heirs could sell the image over and over again.
QUESTION: If I use a pen name and it happens to be the same as a real person’s name, could I be accused of identity theft?
ANSWER: Identity theft means far more than using the same or similar name. You would have to be using that person’s social security number or other personal information to step into their shoes, perhaps by applying for credit.
Choosing a pen name which is the same as a living person is not a problem unless the person is famous. Using the name of a celebrity, such as Jude Law or Cameron Diaz, is asking for trouble. Similarly if you use a pen name such as Martha Stewart or Ralph Lauren (both which have become trademarks), you are likely to get a cease-and-desist from their attorneys.
QUESTION: You mentioned that a writer should deliver a 1099 tax form to any freelancer who is paid $600 or more in a single year? My cover designer is in Australian. Do I give her a 1099?
ANSWER: No. You deliver 1099s only to U.S. taxpayers who are individuals, not corporations.
QUESTION: How does a writer create a fictional website in a book, similar to how books and movies use a 555 phone prefix for fictitious phone numbers? If I make up fictitious websites, should I buy up the domains to keep someone else from grabbing them?
ANSWER: Buying the domains mentioned in your book would be the best protection and a clever marketing trick. You could direct clicks to your home website page or set up websites for each character or fictitious company in your book. But it would be costly in terms of time and money
The more practical approach would be to use made-up tags such as .ccom or .nnet or even .555. Some readers may get the reference.
MORE QUESTIONS? PLEASE POST THEM IN COMMENTS BELOW OR SEND ME AN EMAIL FROM MY CONTACT PAGE.
The Kindle version of Self-Publisher’s Legal Handbook is now available for 99 cents on Amazon. On Sunday morning, the price will increase to $1.99. Regular price resumes on Wednesday, July 29, 2014.
Please help me spread the word. Thank you.
UPDATE: Under Amazon’s current rules, this Countdown Deal is only available to U.S. (and perhaps U.K.) buyers. My apologies to readers outside the U.S.
If I ran the world (or at least Amazon), I would make these offers available worldwide.
You have to be impressed by Amazon’s ability to generate news. Not about books or business or world peace, but about AMAZON. A week doesn’t go by when Jeff Bezos isn’t portrayed in the headlines as a pariah, a genius, or both.
On Friday July 18, 2014, the news was Kindle Unlimited (KU), a subscription plan that allows readers to pay $9.99 per month for unlimited access to over 600,000 ebooks. Interestingly, big publishers have not signed on. While there are some marquee titles (Harry Potter, The Hobbit, Hunger Games…), the bulk of the ebooks are backlisted titles and self-published works.
Within hours of the announcement, the blogosphere was abuzz.
David Pierce at The Verge explained “Why Amazon’s Netflix for Books Might be Doomed From the Start…Without the big publishers, Kindle Unlimited won’t be worth the price.”
Australian booksellers called it “cultural vandalism.”
Slate speculates that KU will cannibalize Amazon Prime and hurt Amazon’s overall income.
How Does KU Affect Self-Publishing Authors?
If you are a self-publishing author with an ebook in KDP Select, then your ebook is included in KU automatically. (If your e-book is not part of KDP Select, it is not included.) Instead of your usual royalty of 70% (35% in some cases), you will receive a share of a Fund based on the number of times your ebook is downloaded. Amazon decides how much to put into this Fund. I know of no published criteria for how much it contributes. Some months it could be millions, other months pennies.
Are the Harry Potter and Hunger Games books subject to the same restrictions and pooled royalty payments? Absolutely not. They get a much better deal. As Digital Book World explains, Amazon has created a two-tier system where self-publishing authors are the second class citizens.
Can they do that?
Yes, Amazon can, at least until someone challenges them and wins. Amazon has a flock of lawyers, smart lawyers. They know what there are doing.
The KDP Terms and Conditions permits Amazon to change the Agreement at any time and puts the duty on writers to check the website for these changes. You are bound by these changes if you continue to distribute your ebook through Amazon. Traditionally, the law required some affirmative action to bind someone to a contract, but courts have been finding ‘we-get-to-change-the-rules’ agreements enforceable as long as the other side has the right to terminate the relationship.
Academically speaking, Amazon could go too far. A judge might rule that some unilateral changes were beyond the reasonable expectations of the parties. The law is full of fuzzy lines and vague distinctions. Judges often rule base on gut feelings of fairness. After all, do writers and publishers really have the option of not selling through Amazon?
If you were to take on this David-and-Goliath battle, the KDP Agreement states that the dispute is submitted to arbitration, and you waive your rights to participate in a class action or have a jury trial. Oh, and the law of Amazon’s home state, Washington, would apply.
Few writers will be willing to take on this battle. They are better off working on their next book.
I see the work of smart lawyers in the amount Amazon puts into the Fund each month. In my experience, it’s typically around $2. ($2.17 per download in May 2014 and $2.24 per download in June 2014. These were downloads as part of KOLL, an older program. KU was not yet up and running.) This is slightly more than the royalty an author would get for an ebook priced at $2.99. I do not know what percentage of ebooks sell for $2.99, but I suspect it’s the majority. For those books, the publishers have no claim for damages because they have lost no royalties.
For all those books with a list price higher than $2.99, the author is earning less per download, but more than she would have through traditional publishing.
(By the way, Amazon attorneys, I suspect KU required a 30-day notice period since includes a change in Royalties (Section 2.2). I’d love an explanation on how you thought your way around that.)
The Power of Amazon’s Promotional Machine
Another cost to not participating in KU—you’ll feel like the outsider of a middle school clique.
Amazon is aggressively promoting the ebooks in KU. Stunning new web pages, recommendations, emails. Amazon is using its entire toolbox to push buyers into KU. Any self-publishing writer who does not join in will be missing out.
Is KU a good business move?
Think about this for a minute. No one has more information about ebook readers and their habits than Amazon. They know who buys what and how often. They know how far readers get into ebooks before putting them down. They know how to target promotions to the right readers and how to move products.
No one has a better idea about how and whether KU will work than Amazon. And if it does not work, Amazon will adapt. An incredibly proactive company, Amazon will tweak KU until it works. My guess is KU will expand, not fade away.
Writers must remember Amazon is not in the literature business; it’s in the consumer sales business. It launches programs like KU not to appeal to authors, but to appeal to buyers, lots and lots of buyers. Perhaps that means more sales overall for authors, but it is painful to see our work treated as a discountable commodity, like single-ply toilet paper on special markdown.
Too many people are asking the question—will writers make enough? The question should be will writers lose too much?
Most self-publishing authors do not make a profit. If a writer has committed to putting his best work out there, then he has spent money on editors, designers, domains, websites, advertisement, not to mentioned thousands of hours writing, editing and agonizing. Self-publishing authors are already subsidizing Amazon by investing money and effort into products they sell at a loss . As Amazon increases its share of the reward, how many writers will continue to risk the heartache, not to mention the pain in the wallet, of creating great books?
What do you think?
You have chosen an editor, book-cover designer, interior designer, photographer, illustrator, audio book narrator, or other freelance contractor. Now what? How do you spell out your mutual expectations or, to put it in legal language, the terms of engagement?
Most likely, your freelancer has a form agreement, which may be a description on a website or an email only. These form binding agreements even if they are electronic. However, make sure the agreement covers the following:
Describe what services are expected: Spell out what you expect the contractor to provide. For example,
- line-by-line editorial review for a _____ book. Describe the project’s genre, such as thriller, romance, historical novel, memoir, how-to, or travel book,
- complete copyediting for grammar, typos, continuity, including proofreading,
- internal layout for a specific trim size and/or for an e-book in a list of formats,
- a specified number of rough cover designs, number of revisions, final design in print-ready PDF format and/or Adobe InDesign files, in specified sizes,
- website of x number of pages, images, tabs, links; banners for Facebook, Twitter, etc.,
- timing of deliveries,
- number of revisions included in price; cost of additional revisions, and
- format of final product.
Payments: How much and when? Check, credit card, or PayPal? Is the payment refundable in whole or in part if you are not satisfied? Are there any ongoing payments such as royalties or renewal fees? Any expense reimbursements?
Attribution: Are you required to give your freelancer attribution, for example, “Cover designed by XYZ,” “Audiobook narrated by GHJ,” or “Photographs by ABC”?
Credits: May the freelancer list you as a client on his website? May he post your cover, illustration, or photo on his website? Clarify whether he must hold off posting your cover until your book is launched. I had the unfortunate surprise of discovering that a designer had posted all his cover design proposals for my project on Twitter and Facebook months ahead of the book’s release. So much for confidentiality.
Termination: Either party should have the right to terminate the agreement at any time. If the engagement is not working out, either one of you should be entitled to bail out. It’s better to lose some time and money than to stick with a relationship that is not working. Many freelancers include a “kill fee” in their agreement: if you terminate after signing the contract but before the work begins, you agree to pay a fixed amount, typically 5 to 10 percent of the total contract price. This compensates the freelancer for booking you into his schedule. A reasonable kill fee is fair.
Communication: What is the preferred method of communication? Is the freelancer available for telephone calls? Is there a limit on the number of calls?
Rights: The following issues are often ignored, but it is NOT TO YOUR ADVANTAGE to ignore them.
- The freelancer represents and warrants that he has the authority to transfer the final product to you free and clear of any claims of any third party.
- If the freelancer has used anyone else’s intellectual property, such as stock music or images, the freelancer has obtained all permissions and licenses necessary to permit you to use them.
- The freelancer’s final product (such as illustrations and designs) is exclusively yours. However, if your design incorporates stock images from a site such as Shutterstock or a free image available to anyone through a Creative Commons license, then you will not have exclusive rights to those stock images.
Ownership: You should own or have the exclusive license to the final product, whether it is a website banner, book cover, or author photo. To gain control, the contract must grant to you an assignment or an exclusive license to the final product, although it is typical to permit freelancers to display it as part of their portfolios.
Do not rely on the phrase work-for-hire. It is a shorthand expression for a complicated set of legal rules. If you use the expression without understanding it, you may be in for some unpleasant surprises.
Here is a sample of a general assignment of intellectual property rights:
Effective upon my payment of $_____, you assign and transfer to me the Work Product and all rights, title, and interest in and to the Work Product and all versions, derivatives, and revisions, whether now in existence or to be created in the future, including all copyrights in all languages, in all known or unknown forms, media, or means of expression, all rights to display, perform, reproduce, modify, merchandise, trademark, or otherwise commercially exploit the Work Product. You acknowledge that evolving technology may result in the development of new media and means of expression and exploitation of the Work Product, and agree that this assignment and transfer shall encompass expression and exploitation of the Work Product in all media by all means whether now known or invented in the future.
Remember the Nanny Tax—all the buzz about failing to report payments to babysitters and gardeners that brought down some Presidential appointments? Well, you won’t risk public humiliation if you fail to report payments made to editors, cover designers, website designers, publicists, or others, but you could face costly penalties. Plus, you’ll pay higher taxes.
General rule: If in any calendar year you pay an independent contractor (other than a corporation) $600 or more for services or $10 or more in royalties in connection with your trade or business, then tax law requires you report those payments on a 1099 MISC and the equivalent state form. Most likely, you are going to pay an editor, cover designer, website designer, and/or publicist $600 or more. Remember, this does not apply to payments to a corporation such as BookBaby, CreateSpace, or Lightning Source.
If you will cross that payment threshold, ask the freelancer for a W-9. The W-9 is a simple form, and it merely verifies the freelancer’s Social Security Number or EIN. Then, early in the next calendar year, complete a 1099 MISC, file it with the IRS, and deliver a copy to the freelancer. Don’t be intimidated. These are simple forms.
If you report the freelancer’s payments on a 1099, then you are in a better position to deduct the expense from your income.
Some freelancers may balk at providing you a W-9 or having you report their payments on a 1099. Perhaps they are not reporting all their income. But to deduct these expenses without raising red flags with the IRS, you must file and deliver 1099s.
For more information on the freelancers you will need to transform your manuscript into a book, check out Chapter 3 of Self-Publisher’s Legal Handbook.
Like many writers considering the plunge into self-publishing, I started my research on the internet. Without exaggeration, the best resource I found was, and still is, Joel Friedlandler’s THE BOOK DESIGNER.
THE BOOK DESIGNER website covers everything from structuring your novel to choosing fonts for your book cover. The advice is practical and professional, and writers can download free and inexpensive handouts, videos and templates to study and use.
Joel’s monthly E-Book Cover Awards will teach you the nuts and bolts of designing a killer book cover.
And he scans the internet to find the blog posts writers should read in his Carnival of Indies.
Best of all, Joel’s upbeat, no-nonsense voice is the tonic every writer needs in moments of doubt and confusion.
Now it’s my turn to give back to the writing community. I am honored to join a team of talented professionals as a Contributing Writer at THE BOOK DESIGNER.
And now me! Watch for my posts the last Friday of each month. My first ran on June 27, 2014. Here it is:
7 Questions to Ask Before Choosing A Self-Publishing Company
Even though words are our stock-and-trade, many writers are intimidated by contract wording. The pages look fuzzy and convoluted, like some math-test nightmare from high school. Writers assume they won’t understand the contracts, so they close their eyes and click SUBMIT.
Nonsense. If you can write a book, then you can read a contract well enough to spot a bad deal. The trick is knowing where to look.
This post is the first of the Highlighter Series in which I will take actual contacts, highlight key provisions, and explain meanings and consequences. I won’t tell you NOT to sign these contracts, but I will tell you NOT to sign these contracts unless you understand what you are giving away and that you have better choices.
My first victim: MeeGenius Author Challenge
Last week, a friend asked me to look at the MeeGenius Original Publishing Agreement. MeeGenius publishes digital children’s books, particularly for tablets. She was about to submit her picture book to the MeeGenius Author Challenge, but the Publishing Agreement scared her.
I opened the Agreement. I looked first for any section titled Grant of Rights or License. This is always a good place to start. If you find unacceptable terms, then you don’t need to read any further.
What I found was troubling:
2. Grant of Exclusive Book Rights
If MeeGenius accepts your Manuscript, you agree to grant, and hereby grant, to MeeGenius exclusive worldwide, perpetual rights, with the right to sublicense, to publish and otherwise “use” (as defined further below) the Manuscript as a book, in print form, audio book, sound recording, and/or any other analog, digital or digitized formats, for distribution in original or translated versions in all languages, in all cases, over or via any communications network or medium, in all cases, whether now existing or hereafter devised…
MeeGenius may make edits and adapt the Manuscript to render the “Work” as one or more linear or enhanced books. MeeGenius may add or replace illustrations, cover art, songs, audio narration, sounds, video, images and graphics commissioned and/or owned by MeeGenius or licensed from third parties (” MeeGenius Added Work “)…
The rights granted by you will be referred to as “Book Rights.” The Book Rights are exclusive including as to yourself. This mean you may not grant any further Book Rights in the Manuscript without MeeGenius’s approval…
MeeGenius will also have the right to create a series of or other derivative books based on one or more of the story lines, characters, specific passages of text, actual illustrations or derivatives illustrations in the style thereof, or other aspects of the Manuscript or Work, on the same royalty and payment terms as provided herein as applicable…
My comments: So MeeGenius may publish e-books, print books, audio books, sound recordings, and translations in currently existing media as well as formats developed in the future. They may even create a series based upon the author’s works. This is unacceptably broad. I recommend against granting rights to a publisher unless that publisher has the experience and track-record to develop, publish and market that particular format successfully.
MeeGenius produces ebooks only. Why would an ebook company want rights it cannot use? Because the agreement also gives MeeGenius the right to sublicense and assign its rights to others. They could sell off your work without your consent.
But there’s more.
4. Grant of Non-Exclusive “Other Rights.”
Without duplication of the “Book Rights” above, you agree to grant, and hereby grant, to MeeGenius non-exclusive, worldwide, perpetual rights, with rights to sublicense, in and to the Manuscript and any resulting Work(s) to create derivative works in any non-Book formats in any and all media, whether now existing or hereafter devised (the “ Other Rights ”)…
Some examples of Other Rights can include adapting the Work as a video game, virtual environment, stage dramatization, movie, television, etc., licensing a character, title, illustration, or a portion of the contents for merchandising goods or services, or creating derivative works (other than as covered by the Book Rights) based on one or more of the story lines, characters, specific passages of text, actual illustrations or derivatives illustrations in the style thereof, or other aspects of any of the Work.
My comments: The grant of movie, broadcast, merchandising and other rights is non-exclusive, which means you could sell these rights to others. But in reality, as long as MeeGenius has non-exclusive rights, no one else will want to invest in creating a movie, show or merchandise since (i) MeeGenius could piggy-back on any success, and (ii) MeeGenius gets a cut of all revenues generated by others. Also unacceptable.
Can you ever get out of the MeeGenius Agreement? Unlikely.
9. Term; Termination.
Termination. This Agreement may be terminated by either party upon written notice to the other party as follows:
- By you, upon sixty (60) days’ prior written notice to MeeGenius, if MeeGenius breaches its payments obligations and MeeGenius fails to cure such payment breach within such 60-day period.
- By you, if MeeGenius fails to publish the Manuscript as a Work on any part of its publishing platform within twelve (12) months of its receipt and formal written acceptance of such Manuscript…
- By you with respect to any individual Work, upon at least sixty (60) days’ prior written notice to MeeGenius identifying such Work, if MeeGenius ceases to publish or otherwise make available for purchase such Work pursuant to any of the Book Rights in any format and on any medium for a consecutive period of six (6) months, provided that no such termination notice shall be effective if MeeGenius demonstrates that such Work was made available in a format or on a medium pursuant to any of the Book Rights during the 6-month period alleged or resumes publishing or making available such Work within such 60-day notice period.
My comments: If they fail to publish or make your work available for purchase, then you may terminate. To avoid termination, all they have to do is offer your ebook for sale on Amazon for a few days.
My blood pressure was so high at this point I kept researching.
Here’s more from the Official Rules and Conditions, as well as their Website
Even if you are not a winner, MeeGenius reserves the right to publish and use all or a part of your entry as an eBook and for other uses as described and provided for in the MeeGenius Standard Form of Publishing Agreement, in which case you may be contacted separately with an acceptance of your entry for publication purposes only.
My comments: So, merely by submitting to the contest, you could be forced into this Agreement. However, there is no $1500 cash prize. There is no mention of any advance.
If you are not a winner or separately contacted about publication by December 31, 2014, all rights in your submission fully revert back to you and you retain full rights to your submission.
My comments: So they hold onto your rights for months. This is significant because the website also states:
Your manuscript cannot be submitted to any other publishing houses or challenges during the review period. Once your rights are reverted back to you then you have full rights to submit your manuscript with other publishers.
My comments: So writers are granting them a six-month exclusive.
I kept going. An internet search led me to troubling complaints by MeeGenius employees on GlassDoor.
And check out reviews on Amazon.
Of course, MeeGenius will pay the standard author royalties on any and all of sales derived from the author’s work. They are not stealing anyone’s creations, but they are asking for more than I would be comfortable giving.
Writers, you do not have to agree to contract terms such as these. Seek out companies and contests with fair, author-friendly terms. Give them your work and your business. We want them to thrive alongside writers.
And, let’s work together here. As you come across egregious, over-reaching contracts, or fair, balanced agreements, please send me an email. I will help spread the word.
Now through July 7, 2014, I will be running a giveaway on Goodreads. Please sign up. The copies will be signed by yours truly!