{This article is for information purposes and it is not intended to serve as legal advice.}
Your child has written a book and a number of friends who have read it have remarked that it is great, and should be published. Your child then tells you he or she has decided to become an author, and wants to have the book published. You quickly respond “okay,” and then, realizing what you said, you ask yourself a number of questions:
Can my child actually publish a book?
Will my child be able to do the many of the things an adult author would typically do, such as obtaining a copyright for the book, arranging to have work printed, and selling the book?
If it is financially successful, will my child have to pay income taxes?
How do I get started?
Well, in the United States and its Territories, except in Alabama and Nebraska where the magic number is 19, and in Mississippi and the Territory of Puerto Rico where it is 21, a person under the age of 18 is, in eyes of the law, a minor and thus entitled to certain protections in many business operations he or she may undertake.
In other words, the individual is viewed as a “legal infant” until he or she has attained the statutory “age of majority” in the relevant jurisdiction. Further, other statutes of the jurisdiction may set a different age requirement for particular activities, such as a minimum age to lawfully drive a motor vehicle, be employed, purchase alcohol or tobacco, marry, or be “emancipated” from parental control.
Let’s explore a number of the common issues facing a parent or guardian whose minor-child has authored a work that appears to be worthy of publication and marketing. Indeed, these issues are similar to the issues confronting the parent or guardian of a precocious child who has invented an “intellectual property” such as an educational toy or game, a tool or a work-saving device that is patentable. Is the child able to obtain a patent, trademark or other forms of legal protection for an intellectual property and “go into business?”
Let’s keep it simple, and address a few of the most common situations that may be encountered by a minor child-writer and his or her parent or guardian seeking to join the business world.
So, what is the business plan? Who will be responsible for getting the show on the road, and assume responsibility for obtaining the copyright for the book, providing any necessary “start-up funds,” obtaining any required licenses or permits, identifying the market and evaluating the potential for the project’s success?
Once these questions and the relevant issues are explored and answered, the next step is to decide whether it’s a go or a no-go situation. Essentially, this involves considering the educational and emotional value of the project to the minor and the effort that will be required to publish and market the book.
An important element in making the decision is to recognize that child-author is on the cusp of the “real world,” and publishing his or her book provides the minor-entrepreneur with an opportunity to learn about operating a business, dealing and communicating effectively with adults involved in business activities, doing research to aid decision making, exerting self-discipline, creating and implementing plans, meeting deadlines, keeping records and accounts, reconciling bank statements and even completing and filing income and sales tax returns – skills and experiences that could prove useful after the minor becomes an adult. If the project turns out to be financially successful as well, so much the better.
Assuming the decision is “let’s go for it,” the work, and fun, begins.
Copyrighting the Work
Basic to protecting the legal rights of an author is copyrighting the work. Article I, Section 8.8 of the United States Constitution imposes on Congress a duty “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Nice, but can a minor copyright his or her books and other writings? The answer, in a word, is yes and it is even possible to file the application and pay the required copyright fee electronically via the Internet using the United State Copyright Office’s website.
Inadvertent Copyright Violations?
Before applying for a copyright, however, it is well to remember that a child’s mind is like a sponge, it picks up and files away an awful lot of stuff that may later appear in his or her creative writing efforts. The child may have innocently incorporated material in his or her book that he or she came across some time in the past and does not now even recall having read. Although there are certain exceptions, if the child has used copyrighted material in his or her book without the permission of the owner of the copyright, he or she is in violation of the Copyright Law.
Accordingly, a prudent parent or guardian will research the story line and selected phrases or paragraphs in the child’s work via the Internet to see if there might have been an inadvertent use of copyrighted material.
Another aid in searching for such inadvertent use of previously published material is a software program – Turnitin. Used by teachers to assure themselves that a student has not incorporated the work of another without appropriate attribution in writing a report, term paper or essay, the program displays “content matches” of materials in the student’s work with writings already in its database. Information about, and a sample demonstration of, Turnitin is available its website HERE.
Other intellectual property that may be copyrighted by a minor includes his or her website and writings posted “on-line,” computer programs, sound recordings, musical compositions, photographs and other visual arts and graphics, technical works, performing arts, and screenplays.
Recall the discussion concerning making a “go” – “no go” decision considered earlier? Even if the decision was “no go,” the child’s book can still be copyrighted. A work does not have to be published or be awaiting publication in order to be copyrighted. An author, or the author’s legal representative, is able to copyright the work even if the author does not have any plans or intent to publish it.
Can You Legally Operate a “Minor-Owned Business?” in Your State?
Which brings us to the question “Should my child and I consult with an attorney?”
The United States Copyright Office notes that although minors may claim a copyright, and the Copyright Office issues copyright registrations to minors, state and local laws often regulate business dealings by and with a minor, including business dealings that involve a copyright issued to a minor. Obtaining the assistance of an attorney may be critical to the success of the enterprise as while an alleged “violation of copyright law” is a federal matter, business activities involving a minor are typically matters controlled by the jurisdiction’s statutes and its courts’ contract law and other decisions.
Such a consultation is advisable for assurance that there is no state or local law, rule and regulation concerning operating a “minor-owned business” from a personal residence that must be considered or that require the possession of a license or permit to conduct the business. The attorney will also be able to advise a parent or guardian of his or her legal duties and responsibilities to protect the rights and interests of the child in a commercial business environment or activity and the mandates and limitations imposed by law on a parent or guardian with respect to commercial business dealings involving a minor.
Will You Need to Assume Legal Responsibility for Your Child’s Business Dealings?
Frequently, a party involved in a proposed business relationship with a minor will insist that the parent or guardian act on behalf of the child and assume legal responsibility for the child’s role and activities in the business or “it’s no deal.” The attorney can advise the parent or guardian concerning agreeing to such a demand.
DBA, Corporation, or LLC?
The attorney can also explain the benefits and pitfalls of establishing a formal business entity for the minor entrepreneur such as forming and operating as a “doing business as” [DBA] organization or a corporation or other type of business entity. Where available, a DBA is a convenient alternative to establishing a corporation or limited liability company [LLC] and the attorney can explain the pro and cons of these alternative forms of business entities and whether creating such an entity is appropriate or necessary.
Going into Business
Having overcome the hurdles of obtaining a copyright, and determining all of the essentials of the business operation, and considering the information provided by your attorney, it is time to consider how to go about actually producing and offering the writing for sale.
Self-Publishing
One increasingly popular route is to be a “self-publisher,” and delegate the production and distribution elements of the project to a reputable organization that will be able to produce the necessary printed or electronic copies of the work so they are immediately available to ship when orders are received. This is typically referred to as a “printing on demand” or “POD” operation. A publisher such as BookLocker (full disclosure: BookLocker is this author’s publisher) offers these services and will do “backroom stuff” such as obtaining necessary ISBNs, barcodes, formatting, cover design, recording and shipping the orders it receives, listing the book in its catalog of publications, listing on Amazon and other sites, offering distribution, drop-shipping directly to book buyers, et cetera, et cetera.
Book Promotion
At this stage of the project, the author takes off his or her “creator cap,” starts wearing an entrepreneur’s hat, and begins to implement the marketing and distribution plan for the book. Certainly family and friends might purchase a copy or two but now the minor author becomes the “director of marketing and sales” to the public at large. The success of a self- published minor author depends of the efforts he or she undertakes to publicize and market the work, be it a print copy or an e-book. BookLocker offers its authors a free copy of 90+ DAYS OF PROMOTING YOUR BOOK ONLINE: Your Book’s Daily Marketing Plan to assist in developing and executing a marketing plan.
Success!
Indeed, a successful marketing effort leads to what many believe to be the most rewarding elements of the exercise in terms of personal satisfaction: evidence that the skill and effort invested in the project by the child and his or her support group was productive; confirmation that the author’s writing skills are real and marketable; and attaining that most difficult goal of all, becoming a successful published author.
A parting word to parents and guardians: when reviewing proposed business agreements with your child, or on your child’s behalf, remember “the BIG print giveth and the little print taketh away,” so always read the documents carefully. If something is unclear, insist on an explanation and, if necessary, that any required clarifying language be included in the document. No parent or guardian can be faulted for consulting with an attorney before the signing of a document by the parties. Also remember that if a term, condition or undertaking is discussed and it is agreed that it is to be a part of the “mutual relationship of the parties,” unless it is included in a document “signed by” or “accepted by” the parties using an “electronic agreement” or it is included in a document physically signed by the parties using a “traditional paper contract,” it is just “smoke!” To paraphrase the late Hollywood movie producer Samuel Goldwyn’s observation, “an oral agreement isn’t worth the paper it’s printed on.”
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Harvey Randall currently publishes a LawBlog focusing on Public Personnel Law and is on the Board of Directors of a number of not-for-profit organizations. He formerly served with the Central Administration of the State University of New York and the New York State Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. His articles have appeared in a number of periodicals including Private Pilot Magazine, The Review of Popular Astronomy, New York State Municipal Lawyer and Computer Dealer Magazine.
Harvey’s Books:
Layoff, Preferred Lists and Reinstatement (2014 Edition)
The General Municipal Law Section 207-a and 207-c Case Book – 2014 EDITION
7.625 STRATEGIES IN EVERY BEST-SELLER - Revised and Expanded Edition
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Excellent, detailed advice!