The writing and legal disciplines may seem worlds apart. However, they crossover perhaps more frequently than you’d expect. From lawyers-turned-writers (think John Grisham, Kerry Greenwood, Franz Kafka) to TV shows about the courtroom (think Suits, The People v OJ Simpson), writing and the law have a lot in common.

As a writer, whether you have a knowledge of the law or not, successfully published or still working on that next great novel, there are legal implications that you should know. With the Sydney Writer’s Festival wrapped up, we look at the rights and legal obligations of authors who publish their work through traditional publishing houses.

Copyright: Are my Plots, Characters and Settings Protected?

Copyright exists in original expressions of artistic works, giving the copyright owner exclusivity to exploit the copyright material. As the owner of your copyrighted work, you have the right to licence, sell or assign the work as you wish. Most books will have a copyright page that makes copyright ownership explicit.

It is important to understand that copyright only protects the presentation or expression of your work, not the idea itself. This means that similar plots, settings or characters can appear in other writers’ work and not infringe your copyright. It is only if another writer has substantially copied or reproduced a portion or all your work that they may have possibly infringed your copyright. Copyright does not usually protect names and titles as they are too short to be considered ‘original’ works.

As a writer, you should also be aware of not accidentally infringing the copyright of someone else’s work. For example, many authors like to include song lyrics or quotes from other well-known works in their books. Publishers usually have guidelines as to the proper procedure to do this without infringing copyright, and you should ensure this is followed through.

Publishing Contracts

In most circumstances, the author or creator of an artistic work is the copyright owner. However, there are situations under which the owner of the copyright is not necessarily the creator of the work. Publishing contracts with the big publishing houses are difficult to come by, however if you have managed to obtain one, ensure you understand the elements of the contract. In particular, you should note the following:

  • Intellectual property rights, for example, while you will give the publisher a licence to your copyright work, the period and the freedom that a publisher has with your copyright work will vary;
  • Your advance and your royalties, and how/when these will be paid;
  • The control you have over editing of your work;
  • Warranties and indemnities;
  • Termination of the contract.

As with all contracts, if you don’t understand a term, speak with an intellectual property lawyer before you sign any agreement. 

Defamation Risks

Anything that falsely hurts another individual’s reputation can be considered defamatory. It needs to be seen by at least one other person than the one who is being defamed and must be so that a reasonable person would think less of the allegedly defamed individual.

If a large publishing house publishes your work, they will typically have methods of double checking for defamation. However, even in these cases, many publishing contracts may contain a clause that indemnifies the publisher in the event of a lawsuit against your work, whether for defamation or other claims. Some contracts may even contain a clause that requires you to promise your work does not defame anybody. Generally, the best defence is to ensure you have a basic understanding of defamation before sending your work to a publisher.

Key Takeaways

The key thing for writers to keep in mind is to understand how copyright works and what they are legally able to protect and enforce against others. For writers who have been fortunate to get a publishing contract, a careful review is necessary to understand your rights, your publisher’s rights and their control over your work, and what happens in the case of a lawsuit.

Got a question about protecting your written work? Get in touch with our IP team on 1300 544 755. 

Dhanu Eliezer

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