One advantage traditional publishers continue to have over self-publishers is access to legal counsel. Self-published writers, here we’ll stick with fiction writers, need to be aware of and alert to potential legal issues their words can create. That’s right. This is about legal issues in the actual writing. Legal issues regarding the business of writing (royalties, contracts, taxes, etc.) are a whole other subject.
Keeping things at a basic level (and with the standard disclaimer that this does not constitute legal advice), here are some ways fiction writers can stray into territory with potential legal ramifications.
Most writers know they can get sued if they defame someone. Defamation occurs when an actor publishes a false statement “of and concerning” another that injures the other’s reputation. Note that the statement must be false. You can publish the most horrible things in the world about a person and not lose a defamation suit if the statements are true; well, depending on the nuances of who has to prove truth or falsity. Also, depending on the nature of the statement and other circumstances, an action may lie for invasion of privacy (discussed below) or, if you are intentionally trying to harm someone, for other causes of action.
In fiction, actionable defamation can occur even if you–unsuccessfully–attempt to disguise the character defamed. If a reasonable reader would identify the fictional character with the real person, that is sufficient to satisfy the “of and concerning” element of defamation. Any fiction writer being honest will concede that at least some of their characters are based on real people, or a composite of real people. If you are drawing a character based on a real person, be careful to change the person’s name, appearance, locale, etc., so that no one says, “Hey, I know this guy. She’s writing about her neighbor, George.”
Fortunately, for writers of all stripes, legal privileges created by the U.S. Supreme Court to protect the First Amendment make it exceptionally difficult to bring a successful defamation action. This is particularly true if the person defamed is a public figure. In those cases, the plaintiff has to prove, essentially, that the defendant knew the statements were false. Private figure plaintiffs can prevail by showing the lesser standard of negligence. Other legal hurdles to success in defamation actions, such as difficulties in proving damages and higher-than-usual burdens of proof, mine the legal highway for plaintiffs.
Nevertheless, you do not want to defame a person in your writing even if you stand a good chance of winning a lawsuit. Even a cease and desist letter will ruin a writer’s day.
2. Invasion of Privacy
Good news again for writers, although perhaps not for everyone else. Americans have very little legal protection from invasion of privacy. In theory, one can be sued for publishing highly embarrassing true facts about a person that would be highly offensive to a reasonable person, but—very similar to defamation law—the Supreme Court has erected enormous hurdles to this type of invasion of privacy lawsuit to protect free speech. (Of course, just as with defamation, the published matter would have to identify a real person as a threshold matter.)
However, European countries offer much stronger privacy protection for citizens. Some U.S. writers have found themselves deep in legal trouble from libel and invasion of privacy lawsuits abroad in countries such as England with weaker protections for free speech. With virtually all books being sold on a global platform such as Amazon, geographic boundaries are no longer a reliable protection against either libel or invasion of privacy actions.
3. Right of Publicity
One of the surest ways to get in legal trouble is to use the name or likeness of a celebrity to promote your book. U.S. courts universally recognize the right of a person whose “name or likeness” is appropriated for commercial use to sue for damages.
It doesn’t violate the right of publicity to simply refer or describe a famous person in your book. But, without permission, you can’t capitalize on another person’s fame to advance your book. The exact dividing line is unclear, but as a rule of thumb, there’s a big difference between, “Mama sure did love Frank Sinatra,” and “Hi, I’m Frank Sinatra and I’m the main character in this novel.”
Due to First Amendment issues, there are gray areas here as well. Unauthorized biographies of famous people, for example, may be protected as original literary expressions even though they are based on and capitalize on another person’s life.
4. Trademark and Copyright Infringement
A copyright is a legally enforceable right to the exclusive use of an original artistic or literary work. A trademark is a “word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” A “service mark” provides the same protection for services rather than goods. For some basic explanation, visit the U.S. Patent & Trademark Office website here and U.S. Copyright Office here.
Trademark and copyright law protect different interests, but when it comes to fiction writers using trademarked or copyrighted work, the basic legal principles involved are similar, mainly in that you can’t borrow either without permission.
But there are exceptions (there always are in the law) that grant leeway for writers to reference trademarks or copyrighted works. (By the way, everything is legally copyrighted the moment it is written down. Registering copyrights does not create the copyright. It simple provides a means to more easily establish a first claim on the work in the event of a dispute.)
“Fair use” is a major exception to both trademark and copyright issues. The analysis and application of the concept is different under trademark and copyright law, but similar enough for generalized statements. Dan Goldman described the law nicely in his article on Legal Zoom, When is Unauthorized Use Not Trademark Infringement?
Speaking very generally, fair use may occur when one uses trademarked of copyrighted material not to directly promote one’s product, service, event, etc., but for a secondary purpose, such as parody, news reporting, or artistic or literary creations. It’s a technical area. Different rules apply, for example, to quoting from song lyrics and books. Because songs are so short, quoting anything more than a couple of lines without permission gets dicey.
The problem for writers of fiction is that the use of trademarks, song lyrics, and other pop culture references is often desirable, even necessary, to tell the story the writer wants to tell. I struggled with the issue in Psycho-Tropics because the psychopathic antagonist is obsessed with “high quality” consumer products and seventies pop music. Early drafts had many references to both. In the end, even though I do not believe any of the uses constituted trademark or copyright violations, I deleted all but the most essential of them.
That’s probably the best advice, or at least the safest. Err on the side of omitting trademarks and copyrighted material unless they are essential to your story.
“Psycho-Tropics is like riding Pipeline with a hangover. It’s jaw dropping, heart thumping and addictively exhilarating, but with a hint of disorientation, dizziness and an unsettled stomach. But by the end you’ll be smiling ear to ear and bursting to tell your mates how good it was.”
— Andrew Norton, Surfer Dad UK