This item is for information purposes only and is not intended to serve as legal advice.
As an author you should be aware of a number of potential difficulties that may give both you and your publisher nightmares.
In an item titled Do You Need Liability Insurance posted by Daniel Steven in his law blog, publishlawyer.com, Mr. Steven observed that “It’s a lawsuit-happy world out there, and even fiction writers need to be aware of the dangers. If you write true-crime novels, for example, you might be sued for defamation, invasion of privacy, or violation of the right of publicity. Or, your novel may be too close to someone else’s novel, and you could be sued for copyright infringement.”
Additional areas of concern include the unauthorized use of a trademarked item or a brand name in your text, especially if the reference is less than flattering, or similar alleged violation of a “property right.” To assist authors and their publishers Mr. Steven has prepared a number of advisories, including the following, which he had posted on the Internet:
• Can I Say My Blog Is Copyrighted?: The Basic Nuts and Bolts of Copyright Protection
• Can I Mention Brand Name Products in My Fiction?
• Could I Be Liable for Libel in Fiction?
• Titles and the Law: Can I Call My Novel “The Great Gatsby”?
• Copyright in Fictional Characters: Can I Have Don Draper Make a Cameo Appearance in My Novel?
Authors should also be mindful of the so-called “Doctrine of Unintended Consequences,” which could result in lawsuits following the publication of their work, fiction or nonfiction. In other words, authors have a potential for being a defendant in a lawsuit and possible liability as a result of the publication of their book.
A common trap for unwary authors is the inclusion of copyrighted text, photographs, illustrations and similar materials in their work product without first obtaining the copyright owner’s written permission to do so. While material that is “in the public domain” may be used freely, the trick is to determine if the item or reference to be used is actually “in the public domain.” The author should take appropriate steps to assure himself or herself that the material is “freely usable” in his or her work.
Further, authors sometimes rely on the so-called “Fair Use Doctrine” to include copyrighted material in their work. The Fair Use Doctrine provides only a limited exception to the prohibitions inherent in copyrighted material and authors must make certain that their use of copyrighted material does, in fact, comply with the Doctrine.
To assist authors, the United State Copyright Office has created a web site addressing the Doctrine at https://copyright.gov/fair-use/. In the words of the Copyright Office, “Fair use is a judge-created doctrine dating back to the nineteenth century and codified in the 1976 Copyright Act.” Although the Copyright Office’s Fair Use Index could prove helpful in understanding what courts have to date considered to be fair or not to be fair use, it is not a substitute for legal advice. The Copyright Office cautions that “Both the fact patterns and the legal application have evolved over time, and you should seek legal assistance as necessary and appropriate.”
Copyright violations and related matters are not the only concerns that authors must guard against. Attorney Mark Fowler posted an item on his LawBlog entitled Oops, I Poisoned My Readers: Can I Be Liable for Publishing Mistaken Information? The article is HERE.
Mr. Fowler writes: “Suppose you are the author of a book about harvesting edible mushrooms. Suppose further that mushroom enthusiasts who purchased your book became seriously ill when they gathered and ate fungi that you mistakenly described as safe. Could you be sued by your poisoned readers? Would they be able to recover damages from you and your publisher for their culinary nightmare?”
This was the issue before the court in Winter vs. G.P. Putnam’s Sons, 938 F.2d 1033, and illustrates the potential for litigation and damages as a result of the publication of material that resulted in the reader suffering harm. The case, as summarized by the court, involved mushroom enthusiasts who became severely ill from picking and eating mushrooms after relying on information in The Encyclopedia of Mushrooms, a book published by Putnam. The U.S. Circuit Court of Appeals, 9th Circuit, affirmed the federal district court’s granting summary judgment to Putnam,
explaining “The plaintiffs urge this court that [Putnam] had a duty to investigate the accuracy of The Encyclopedia of Mushrooms’ contents. We conclude that the defendants have no duty to investigate the accuracy of the contents of the books it publishes. A publisher may of course assume such a burden, but there is nothing inherent in the role of publisher or the surrounding legal doctrines to suggest that such a duty should be imposed on publishers.”
The decision of the court is posted on the Internet HERE. It appears that the authors of the book were not sued in this action and thus the court’s opinion is silent as to the liability, if any, of the authors for injury suffered by the plaintiffs who brought this lawsuit.
Other examples provided by Mr. Fowler include lawsuits against publishers involving an injury to a student who was injured while performing a science experiment, following allegedly mistaken directions in a textbook and liability to readers for publishing mistaken financial information.
In contrast, the author might face a greater legal risk than his or her publisher.
For example, in William Alm vs. Van Nostrand Reinhold Company, Inc., 134 Ill. App.3d 716, the claims against the publisher were dismissed, but the claims against the author went forward. The court noted that “Plaintiffs concede that they have discovered no case in any jurisdiction which has imposed liability on a publisher for negligent misrepresentation merely because of the publication of material written by a third party.”
Fact checking by the author is critical. As Mr. Fowler notes, “no responsible author wants to cause injury to a reader, and there is no discounting the fact that publishing seriously mistaken information has a host of other detrimental consequences, ranging from damage to an author’s reputation, to the cost of defending a lawsuit, even if the lawsuit is ultimately dismissed.”
Authors should not be reluctant to seek legal advice concerning their manuscripts before submitting them for publication, if only to avoid nightmares.
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Harvey Randall, a BookLocker author, is an attorney and currently maintains a law blog focusing on New York Public Personnel Law at www.publicpersonnellaw.blogspot.com. His articles dealing with relevant legal issues have been published in Computer Dealer Magazine, Private Pilot Magazine and other periodicals.
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Interesting, enlightening, and a little bit scary!