It seems to happen more and more often.  We receive manuscripts from authors containing materials from third parties.  The majority of the time, the included material is properly cited with appropriate permissions attached.  Sometimes, however, material is embedded in the manuscript without sufficient diligence on the part of the author.

I have asked my good friend and trusted attorney, John Hardin Young, to comment on compliance with basic intellectual property rights as they apply to the independently published author.

Steve Jackson
Partner
Telemachus Press
Response to Steve Jackson by Attorney Jack Young:

For the independently published author, many of the responsibilities of the book publishing process that traditionally fell to their literary agent and publisher are now fully theirs.  Understanding intellectual property laws and how they apply to published works are one of these responsibilities.  

Third party materials, in any media from the written word to multimedia you wish to include in your work, must be considered with extreme care.  First and foremost, begin with the assumption that the material you want to copy and include in your book is the property of someone else.  You must make every effort to determine its rightful owner and then secure their permission to use their property.

A fundamental mistake, even when made innocently by people new to copyright protection, is the belief that anything found on the Internet is in the public domain and free to use at will.  Nothing could be further from the truth.  What you want to copy and use could have been copyrighted by the web site or by a contributor to that site.  The material might have been improperly acquired and used, which could potentially lead to you becoming a potential co-defendant in a lawsuit. Additionally, don’t be fooled by images marked as “royalty free.”  They are typically only royalty free for your own personal use and not for commercial uses such as publishing.

So what steps do you take to use the work of others lawfully and in a manner that protects you from an infringement claim?  To begin with, determine how to go about obtaining the appropriate permission to use the property in question.  If you are looking at a passage in a book, you should start with the publisher.  If you are reviewing anything on a web page, it’s time to contact the owner of the web site.  Accept the fact now that you need the expressed permission of the property’s owner to use the material in whole or in part.  You must communicate to the owner:

1.    How you plan to use the material
2.    That it will be included in a for profit work from which you will be compensated
3.    That you will cite the source and give credit as appropriate
4.    That you need their written permission for this use.

Following this protocol keeps you out of trouble.  Anything less leaves you open to legal action and exposure to significant financial loss.  

I speak with authors who don’t believe they have to secure these permissions.  They site the fact that they are only using a small piece of the work.  They reference “Fair Use.”  Secretly, they simply hope that no one will notice.  All too often, this ends in disaster.  Please understand the following:

1.    There is no standard for how much of someone else’s work you can use.  You don’t own any of it.
2.    Fair Use is a defense that may be used in court – it is not a law.  You will have to defend the three-step test and prove that you did not violate copyright law.  Putting someone else’s material in a book that you publish with the intent to make money without permission from third party is a clear violation of anyone’s interpretation of the Fair Use defense.  Don’t kid yourself.
3.    Fully protecting yourself by getting written permission with a signature is paramount.

I have worked with Steve Jackson and Steve Himes, two of the partners at Telemachus Press, for many years.  I would be pleased to work with any author at Telemachus Press should you require legal advice or opinion.  This message does not constitute legal advice. You should always consult a lawyer if you have intellectual property questions before proceeding.

John Hardin ( “Jack”) Young
Sandler, Reiff , Young & Lamb, P.C.,
Suite 300
1025 Vermont Ave. N.W.
Washington, D.C. 20005
Admitted in Va. D.C. & Pa.
young@sandlerreiff.com
©2012 John Hardin Young.  All Rights Reserved.