Intellectual Property And Book Publishing

From concept to shelf, authoring and publishing a book can seem like a daunting task. In modern times, unless already established as a bestselling author, much of the work of traditional publishing is done by the author. When writing a book, there are three aspects of intellectual property that authors need to keep in mind:

1. Make sure you own the copyright for the book itself

However, the copyright for the book itself is not the only piece of intellectual property you need to consider. Because the publishing industry is navigating towards self-publishing, authors must be dialed in during the entire publishing process of their book distribution.

According to the fundamental rights of copyright law, when you write the book, you own the book. However, this is where your publishing contract will be critically important: many times, these contracts will state who owns the copyrights. Registering the copyright on a federal level will help if there is ever a dispute about the authorship or ownership of your book.

 When you write the book, you own the book, but what about the images or graphics? Many authors choose to add pictures to the covers of their books or within the content. How you obtained the image will significantly affect the steps you need to ensure the graphic is protected.

2. Run a due diligence search on the copyright for the title and cover art

Eliminating copyright infringement begins with a due diligence search and, when done properly, should examine several processes:

(1)   Images taken from public domains are resources available to anyone, meaning it is difficult to prove ownership of these rights as the images are widely used and usually have no copyrights.

(2)   Images that have Creative Commons licenses attached are also a great way to use images without worrying about litigation over copyrights. Working within the sphere of copyright law, Creative Commons allows the content creator to permit everyone in the world to use the images in specified ways. Ensuring your image follows Creative Commons work guidelines will be a vital step in solidifying the copyright process.

(3)   Fair use is another way a creator can attach copyrights to a work and still share it with the world. Fair use permits parties to use a particular work but only for specific purposes. Knowing if your use of the image falls into this category can be technical but imperative to avoid future litigation.

Owning copyrights, borrowing a copyrighted media, using a copyrighted media for income, and flat-out holding the copyrights to an image are all very different types of rights and ownership. Understanding what your rights are will save a lot of time and energy later on down the road.

3. If you’re hiring someone to create a unique image for the book, use the right contracts.

Borrowing or using images from public domains, Creative Commons, and Fair Use are not the only ways to acquire graphics to add to a book. Images created under work for hire agreements are another way to source graphics for your book. Under a work for hire agreement, the work produced is done so by an employee as part of the job, so the work that is created belongs to the employer rather than the employee. This route offers a generally more protected course of ownership due to the work for hire agreement. Arising from a federal statute, work for hire can serve as a concession to the universal rule that the creator of a work owns that work. To protect ownership rights of this type of work, the author must ensure a fair contract is established before having the work created.

The book is done, ownership rights are established, now what? What is the publishing timeline?

         As with most legal questions, the answer is: it depends. The route and medium that an author takes to publish their work can have significant effects on the publishing timeline. In modern times, avenues such as E-Books, audiobooks, and podcasts are helping to push content to consumers in what seems like the blink of an eye. However, while the timeline changes, so do the protections needed. Royalties and new copyrights become necessary, and each moving part can affect the publishing timeline.

         Some things to consider when establishing a publishing timeline are:

·   What is the medium being used- print, e-book, audiobook.

·   If publishing via print- hardcover, paperback, mass market.

·   Are there any subsidiary rights- does someone else have a right to all or a portion of your book?

Self-publishers who author books will typically publish on self-publishing platforms like Amazon’s Kindle or CreateSpace (30-40% of self-publishers publish using eBook platforms), and it is crucial to understand if the platform you intend to publish on has any fees associated with royalties or require a baseline fee.

What do I do if someone infringes on my copyrights?

The benefit to being backed by a big publisher is the ongoing policing of your copyrights. If you are a self-publisher, ensuring that your copyrights are not infringed on can be a daunting and challenging task. Often, the struggle is recognizing when and by whom your work was copied.  When this happens, having a registered copyright can mean the difference between a simple cease-and-desist letter or, if not copyrighted, a long-drawn-out legal battle to prove who owns the rights.

Having solid and transparent contracts that outline rights can save money and time in future litigation down the road.

The examples above are a drop in the bucket regarding the nuances of copyright and trademark law. Because (first) writing and then (second) publishing written works can be so extensive and detailed, one of the most critical steps that an author can take is to protect themselves during this process, do this by ensuring you have a knowledgeable attorney with a solid background in copyright law to review and analyze your contracts.

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