Literary Lawsuits: Lessons in Publishing Law

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Table of Contents

• 1) Understand Copyright
• 2) Use Disclaimers
• 3) Avoid Misleading and Deceiving Readers
• Key Takeaways

The five recent literary lawsuits that were examined all occurred in the US – so could they also have happened in Australia? Australian law significantly differs from American law and Australian culture arguably lacks the same litigious attitude. However, Australian authors can still learn valuable lessons from these lawsuits.  

In particular, there are a few key areas of law which are relevant:

• Copyright law
• Defamation law
• Consumer law

1) Understand Copyright

In terms of copyright law, as the author you should ensure that you have a basic grasp of copyright and the rights it gives you. Copyright is automatic in Australia for any piece of original and tangible work. As the owner, you have the right to licence, sell or assign the work. However, nobody else, including your publisher, can force you to as Samuel Pinkus did to Harper Lee. Copyright lasts for the author’s entire lifetime and seventy years after death. Consent is technically necessary for others to use your work or for you to use other authors’ work, unless the work is in the public domain.

Under the Copyright Act 1968 (Cth), you also have certain moral rights that are given to you as an individual. These rights are also automatic and in general continues until copyright itself ceases to subsist. Note that moral rights cannot be transferred, by assignment or otherwise, although if a work has more than two authors a co-authorship agreement may be drawn up stipulating that all authors must exercise their right of integrity jointly.

There are some exceptions to acts not constituting infringements, including for the purposes of:

• Research or study
• Criticism or review
• Parody or satire
• Reporting news

Unlike the case over Midnight in Paris, the transformative nature of ‘fair use’ is not an exception in Australia, which has the above four ‘fair dealings’ exceptions instead, although those four exceptions are non-exhaustive and other factors may be considered. Recent changes recommended by the Productivity Commission has suggested changing these exceptions to be more in line with the US’s ‘fair use’ exception, however, authors should exercise caution when quoting from other authors and it is always better to obtain consent.

2) Use Disclaimers

For authors who write memoirs, or even fiction writers who have taken inspiration from real life people such as Kathryn Stockett, it can sometimes be difficult not to involve other individuals in your work. For memoir writers in particular, stories of personal experiences generally involve other people who may not want that experience publicised.  The danger with this is that the individuals in question may be able to sue for defamation, if the portrayal is negative or harmful, or potentially for breach of confidence. It should be noted that NSW State Parliament’s law and justice committee has recently recommended that a new tort for invasion of privacy be introduced, the reality of which may open writers up to more direct claims.

Many fiction novels now include an ‘all persons fictitious disclaimer’, which essentially states all persons portrayed in it are fictitious and that any similarities between a character and a real life individual are purely coincidental. This is a useful tool for potentially limiting the possibility of legal action for defamation or libel, however it is not a foolproof defence.

3) Avoid Misleading and Deceiving Readers

As an author, it is easy to forget that you are also selling your work to consumers. Readers who purchase your books are not only your fans but also your customers. Therefore, the Australian Consumer Law (ACL) applies to you and your publisher.

One of the key relevant terms of the ACL is to ensure that you do not mislead and deceive consumers. Under section 18, the law states that a person must not ‘in trade or commerce’ engage in conduct that is, or is likely to be, misleading or deceptive. Conduct such as Frey’s in claiming that his partly fictitious memoir was actually non-fiction can be seen as misleading and deceptive to readers, and you may be liable to pay civil penalties as Frey was required to do.

Key Takeaways

Successful works draw international attention and can often lead to lawsuits. As the author of the work, you should ensure that you understand the basics of copyright and know the risks associated with defamation and libel as well as making a claim about your work that may be construed as misleading.