Mindy: Welcome to Writer Writer Pants on Fire, where authors talk about things that never happened to people who don't exist. We also cover craft, the agent hunt, query trenches, publishing, industry, marketing and more. I'm your host, Mindy McGinnis. You can check out my books and social media at mindymcginnis dot com and make sure to visit the Writer Writer Pants on Fire blog for additional interviews, query critiques and more as well as full transcriptions of each podcast episode at WriterWriterPants on Fire.com. And don’t forget to check out the Writer, Writer, Pants on Fire Facebook page. Give me feedback, suggest topics you’d like to hear discussed, and let me know if there is someone you’d love to see as a guest.
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Mindy: We are here with Maria Riegger who is the author of Legal Issues Authors Must Consider. It is ranked number one in Amazon for copyright law, corporate law, practical guides for law, and entertainment law. So there's a lot of different things that authors really do need to consider in the legal arena when they're moving into a business setting. The first thing that I think is personally interesting and it took me a long time to come around to it, but I finally did. Protecting your assets by forming an LLC, a limited liability company. So I definitely want to talk about that. I finally came around to doing it. It's not that hard. So let's just start with you telling us a little bit about yourself and how you came to be interested specifically in the arena of legal issues for authors.
Maria: And first, thanks so much, Mindy, for having me on today. This is a super exciting topic I have a lot of thoughts about. I'm an attorney. I'm a corporate banking attorney by day, and I've been a self-published author since 2015. And in communicating with a lot of newer self-published authors, there is a lot of misinformation about how to protect themselves legally. What they need to do legally to, for example, secure copyrights for themselves or use copyrighted material. A lot of business related questions about what you just kind of mentioned. How to set up a business. Should I set up a business? And there's so much misinformation I saw publicly that I felt compelled to kind of write out a practical guide for newer self-published authors. It's really hard to include everything that would be legally relevant to self-published authors in one book, and I find that most newer self-published authors are completely overwhelmed with the legal aspect of the business. That they don't even take any steps. So I concentrated on like 3 or 4 main topics and said, "Start with these, and then as you progress in your business, you can hire people out to do other things and then explore other things."
But, as you mentioned, the first basic thing is how do you set up your business? My advice is to set it up as an LLC, as you said. Set up your publishing company as an LLC and publish through the LLC. That way your personal assets are protected. You setting up the corporate entity is not 100% fail safe every time. That depends on the nature of the lawsuit, if a lawsuit is brought against you. But it does offer some protection. In the US, at least, it's easy to do. It's a minimal upfront cost. I think in my state it costs maybe $100 to form the LLC and then $50 a year to just maintain it as an active business. You don't even need an attorney to do that. It's something you can do yourself, and it affords a lot of protection to the business owner.
Mindy: So give us an example of how an LLC is helpful to you. Because my understanding is that if you are sued or a lawsuit is brought against you for some reason that is related to your writing... If someone thinks that you stole their copyrighted work. If someone perhaps takes an action. If you wrote a book about suicide and someone, a reader, kills themselves and their family is like, "Hey, this is your fault." Anything like that. If someone sues you, if you are an LLC and the lawsuit is related to your writing in some way, they can only come after you for assets that are related to your writing business, your writing income. So, for example, they can't take your house, is that correct?
Maria: Correct. Yeah, that's generally correct. All depends on the nature of the lawsuit, but in the ones that you've described, that's generally correct. If it's related to the writing, to the publication of that book, it's going to be really difficult, if not impossible, to kind of get to your personal assets. And that's what you want to do. And I go over the steps you need to separate personal assets from your business assets. Now, I want to say, like in a lawsuit, what usually happens is people... It's like an all guns approach. They're going to sue everybody. They may sue the author. They may sue the publishing company, which is your LLC. What happens is a defendant hires an attorney and gets some stuff thrown out. So you can always sue. I mean, judges are very lax on what they allow to proceed past the very initial stages. Generally speaking, it doesn't prevent them from naming you as the author in a lawsuit. Depending on the nature of the lawsuit, that's not going to get very far.
Mindy: It's scary. Like once you start talking about... I know that a lot of people, as soon as you talk about suits and being sued, a lot of authors in particular, they really just kind of want to stick their head in the sand. Or be like, "Oh, that would never happen to me. I don't steal other people's work." But as you just said, honestly, the truth is that you could not have done anything wrong and still have a suit brought against you.
Maria: Yeah, there's nothing that guarantees you free legal representation for a civil suit. There are groups. I used to do a lot of pro bono work in civil suits like family related law and things like that for people who are low income. But generally you're not guaranteed legal representation for a civil suit, just for criminal. So you're going to have to hire your own attorney, right, to defend that. I've heard of very few lawsuits against kind of newer self-published authors. So I don't want to strike fear in the hearts of people. I'm also kind of a realist. So my advice is for authors to be prepared should something happen.
Mindy: Oh, absolutely. And I think you need to be informed. Unfortunately, due to the world that we live in, the vindictiveness of the human race, it really is just kind of intelligent to cover your ass, quite frankly. I personally just incorporated... Oh gosh, maybe within the last like 3 to 5 years. And my tax person had been telling me repeatedly, she was like, "Mindy, you need to form an LLC." I'm actually an S-Corp, but she's like, "You need to incorporate. You need to do this." And there are a lot of different reasons why. Some of them being tax related and things like that. But she was like also, this is what's going to protect you if something happens. And I was very much of the approach that I was like, Well, that's scary and I don't want to think about it, right? So it was like basically every tax season we would have a conversation that frightened me, and then I would not think about it again until April. And that is not the right response. I will say for people that are listening.
If you are a member of the Authors Guild... I do not want to present this incorrectly, but if you remember the Authors Guild, one of the things that they do provide is legal counsel. I do not remember if it is like completely free or anything like that, but they do have lawyers on retainer that you can just use for a quick Q&A and things like that. I'm certainly not trumpeting that they'll give you a free, awesome lawyer. I'm not sure that that's the case, but I have in the past used my Authors Guild membership in that way. I got a question about this and there's someone that will answer my questions right away that is an entertainment lawyer, and my Authors Guild membership affords me that. So that's just a real quick hey little shout out for the Authors Guild. You were talking about also copyright. And when it comes to copyright, that is something that there is a lot of confusion about. People are just not terribly informed about copyright and how copyright works. So let's start by talking about your own work and copyright and at what point copyright becomes something that you need to be thinking about. How to be best informed about how copyright works in the first place. I remember a long time ago when I was still trying to get an agent, one of the things that people talked about was poor man's copyright, and this was in the day of self-addressed stamped envelopes for querying. But one of the things that people talked about was a way to copyright your work was to print it all out on paper and mail it to yourself and never open it. And because it had passed through the federal system of the USPS Postal Service, it had an official date on it. And your sacred words were then copyrighted by dint of being inside of an envelope that the United States Postal Service had officially stamped.
Maria: Oh wow.
Mindy: I'm pretty sure that's not true.
Maria: Yeah, that's... That's so odd. So copyright law is a creature of federal law. So we were talking about setting up your corporate entity, your LLC, that's under a state law. So you need to go to an authority in your state, either the state corporation commission or an attorney to tell you the procedure like what you need to do to get the limited liability protection and stuff like that. Copyright laws and under the Federal Copyright Act, there's a ton of good information on copyright dot gov. And obviously we're still talking about US copyright law here. So an author has copyright over their work just by virtue of creating the work. You do not need to register your work with a copyright office to assert copyright over your own work, poetry, books, music, anything like that. Okay? Why it's a good idea to register with the copyright office is if somebody infringes on your copyright and you're a newer author, the damages you can sue for are possibly pretty minimal because you're talking about lost earnings. Which if you're a newer author, maybe you aren't that... Isn't that that much yet. But if you have registered your work with the copyright office, then you're eligible to get, should you prevail in the copyright infringement suit, statutory damages. Which can be as much as six figures depending on the nature of the claim. You know if it was willful? Things like that. So that's why it's a good idea, especially for newer authors, to register with the Copyright Office.
You do pay a fee per work. It's, I think, like $45, but it's on the copyright dot gov site. You can find it pretty easily. You do pay a small fee per work, but that protection is well worth it. Because most newer authors, if somebody is using their work without permission, that's probably not going to be worth it to bring a claim because you're not going to get much in damages. But if you register with a copyright office, then you do have the potential to get damages. And sometimes when somebody is using your work without permission, sometimes it's enough to have an attorney draft them a cease and desist letter and they'll stop doing it. And that's a pretty... Depending where you're located in the US, that's a fairly minimal cost to do that. Or you could get somebody, you know, like people have asked me to do that, send a cease and desist letter. As an attorney, that sometimes is enough to get them to stop using your work. But that's why it's a good idea to register with the copyright office, but want to make clear that, you know, you have copyright over your own work when you create it by virtue of you creating it. That's your original work, and you have the right to assert your copyright over that work, even in a lawsuit.
Mindy: And that is something that I think a lot of people don't necessarily realize. I still see comments coming up on message boards and Facebook groups and Slacks where people are like, how do I get this copyrighted? And I need to contact the right office and I need to do all these things. And it's like, no, you actually don't. By dint of you creating it, it is copyrighted, and it belongs to you. Also, I should say one of the sponsors for this podcast is Vellum, and Vellum is a software that does all of the formatting for your book and turns it into the file that you use to upload to Amazon, Barnes and Noble, Kobo, whatever. So Vellum is fantastic, and one of the things that Vellum does automatically when you are generating your book is that it puts in your copyright information. That is, I find, so useful as in the self-published arena, in the indie arena, because it's just kind of taken care of for you. And it's not a terribly like technical thing that you have to put a lot of time or effort into. When you're a traditionally published, your publisher takes care of all of that.
Maria: Right.
Mindy: And you don't have to give it a thought at all. That is an arena where things are a little bit different in the self-publishing versus the trad publishing.
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Mindy: But let's also talk about then other people's copyright. So if you want to reference, say, a lyric from a song. Or if you would like to use a pull quote from a poem that inspired your book and you want to put that in the front matter. Talk about that for a little bit. How does that work?
Maria: Sure. So this is probably the question I get asked the most frequently, because this is such a nebulous area. And one of the things people ask is how much content can I quote from a book, for example, without having to request copyright permission? And the answer is there is no minimum. There is no legal definition for the minimum you can quote from a book or song lyrics without having to request copyright permission. So, I've talked to people who used to work for the Big Five publishing companies and they said, "Well, my in-house attorney told me I could quote up to two lines and not have to request copyright permission." That's not based on the law. That's based on practice. It's possible that that copyright holder just makes a practice of only suing or only caring whether you quote more than two lines or more than five lines or more than ten lines. That's based on practice, not the law. You have to be very careful about that, because an attorney will often give a non-attorney a very cursory answer. Yeah, you can quote two lines with no problems, but that's not a legal answer. That's just based on the practice or their course of dealing with that particular copyright holder, right, if it's another big publishing company or a record producer, for example.
So the general rule is you always have to request permission. For newer authors, that's what I tell them. Just work under the presumption that you always have to request permission as long as it's something obviously identifiable. So that's kind of a nebulous area. So if you're using a pull quote, yes, you need to request permission from the copyright holder. If you're using a quote at the beginning of the chapter, yes, you have to request permission. If you're using song lyrics, yes, you have to request permission. It's a very long process to get permission, especially for song lyrics, which actually go into detail about in my book because I have done that process myself - requesting permission to use song lyrics from copyright holders. So sometimes it's easier just not even to use the copyrighted material because you know, that may possibly delay publication of your book. That's something the author's going to have to consider. But generally speaking, you're always going to need to request permission.
Mindy: This is something I ran into with my very first book, which is called Not a Drop to Drink. Obviously, the title itself is actually taken from Samuel Taylor Coleridge's Rhyme of The Ancient Mariner. It's a post-apocalyptic survival story, but one of my characters is a former English major. And so they are using quotes from poetry fairly often. And correct me if I'm wrong, copyright is life of the author plus 100 years. Is that correct?
Maria: I think it's life of the author plus 75, but I'd have to... To be 100% sure, I have to look that up.
Mindy: So if the author has been dead for 75 years, you can use their work. So this is why, for example, every press in the world, plus Barnes and Noble, reprints Charles Dickens work all the time because they can produce it for free. They don't have to pay anything. They create this book, and then you buy it. And they only put in the printing cost. So, if you are quoting someone that has been dead for over 75 years, that has passed in the public domain and it is free use. But I had a particular quote that was just like perfect. And I don't remember the poet's name because they're not particularly famous or anything like that, but they had been dead for maybe 50 years. Like we just... We weren't quite there. So there was one line that I was going to have to have permission for, and this was my very first book. And my publisher was Harper Collins, and my editor was like, "We'll take care of this, but if they want money, you know, you have to pay for that." And I was like, "Yes. Yes, of course." And so they ended up handling all the communication, but they were in contact with the poet's descendants and heirs and everything, and they had a lawyer that handled these things. And we were in communication for like six months. And I think I wanted to use maybe 10 or 12 words and also crediting the poet within the book. The person would say, "Yeah, that's so and so."
We went back and forth and back and forth and back and forth, and they were throwing, uh, you know, numbers out there for me to pay. And it wasn't particularly egregiously high numbers, but I was just like, "Well, that seems like more than I thought it would be, you know." But also never actually saying "yes, we'll go forward. Yes. We give you permission. Yes. If you pay us this much, we'll do it." It was like, "well, I mean maybe we'd consider it if." And at some point my editor was just like, "Hey, how important is this, really?" And I was like, "You know what? Not that important." So really consider it. I understand having things that you're drawn to, and I understand having elements of a song or a poem or someone else's work that really, really resonates with you. And when you read it, you get goosebumps, and it's the thing that maybe even inspired your work. Cool. But how much does it really matter? My editor was very frank with me, and she was like, "Listen. Who really cares about this? Probably just you." And I was like, "Good point." And she was like, "Do you think you can find a different poet and a different poem that's in the public domain that we could just use for these ten words?" And I was like, "you know what? Yes." This has been just emotionally draining and a lot of work and a lot of time, and it was just, in the end, fairly pointless. So, um, real quick question. How does it work if you want to, quote, say, a historical figure?
Maria: Historical figure. So this is I'm guessing this is a written work, not spoken, right?
Mindy: That's a really good distinction. So actually, tell me both. What is the process?
Maria: Right. So if a historical figure from like a speech I don't... This could kind of be a very long winded answer because if the speech is published somewhere. Right? And copyright has not expired and there's a copyright on it, then you're probably going to have to request permission to use it. If they were speaking orally in a speech and somebody overheard them and told it to you, that's not a copyright, right? That's no copyright on that. You see what I'm saying? That's one thing. So we're talking about copyright. Written copyright. So yeah, if it was published somewhere and the copyright has not expired, you'd know it's definitely not in the public domain. Sometimes the copyright holder will place something in the public domain, and that's free to use, right, without permission. But yeah, if it's been published somewhere and there's a copyright holder, you're going to have to request permission from the copyright holder. But if it's just like a speech and somebody's reporting it to you or so-and-so said this or I'm going to use that quote, that's not that's not something you can assert copyright over.
Mindy: And again, anyone that's listening, definitely double check everything. We're not throwing out ironclad answers here so...
Maria: Right. I Mean... Yeah, I mean. That's my general understanding. Yeah. You have to ask, is this copyrighted? Who is the copyright owner? Has the copyright expired? Those are kind of your threshold questions, right.
Mindy: So one of the last things. How can authors protect themselves against defamation? And also quick, what is defamation?
Maria: This usually comes up for obviously nonfiction authors, right? Sometimes memoirs. Sometimes clinical practitioners are writing about cases, things like that. So defamation is when you... Again, this is an issue of state law. So every state is going to have their own definition. It's generally very similar, but you'd have to check with, you know, an attorney in your state to really know what you would need to prove or defend against a defamation claim. So defamation is... It's an oral or written statement. So here we're mostly talking about written statements, right? So authors. A written statement about somebody else that is false, and that is defamatory. So what is defamatory? Well, it's usually something very negative. Like that person has been convicted of a felony. Or that person has some kind of horrible disease. Or that person, you know, cheated on their partner or something like that. The question of what is defamatory, that's been subject to a lot of litigation. So it's really hard to come up with a definition of that. But it's something very negative, right? It's not like, Oh, that person has brown hair. Oh they really have blonde hair. Oh, well. You know, that's not necessarily a defamatory statement, even though it's false.
Now, a statement cannot be defamatory if it's true. So if you're saying something true about somebody, even though it's negative, that's not defamatory. So, often what will happen is a defendant will counter by saying, well, this is a true statement, and here's why it's true. And the claim can't proceed, right? So that's generally what it means. Yeah. But it's got to be something very negative. And in extreme cases, it would be harmful to the point where the subject of the defamatory statement, the plaintiff, would like lose their job or lose income over it because, you know, that's kind of an extreme example. But it's generally it's got to be something very negative. And there are some statutory definitions like felony convictions and other things depending on the state where you're practicing, where you're located. But that's generally what it means.
Mindy: And how do you protect yourself against that?
Maria: If you're writing like nonfiction, and you're writing about real people, what I tell people is you're going to want to obscure the person you're writing about. You know, don't use the real name, obviously. You want to obscure details about them. So to successfully bring a defamation claim, you'd have to show that they could only have been writing about you. So, if you obscure some facts and details about their background, their appearance and things like that, it's going to be really hard for a plaintiff to say, "Oh, they're definitely writing about me. This could not be anybody else." Okay? If you're writing kind of a biography, autobiography, a memoir in first person, one of the things that I recommend is to think about doing a creative nonfiction piece. Like writing in third person as opposed to first person, and then using that together with kind of obscuring details about people to protect yourself. Yeah. And obviously if you're a.... Kind of goes without saying, but if you're like a clinical practitioner writing about, you know, your patients, you're not going to use real names. You're not going to use real details about patients and things like that.
Mindy: Last thing why don't you let listeners know where they can find your book, Legal Issues Authors Must Consider, and where they can find you online.
Maria: Absolutely. So, my book is available on all the major retailers: Amazon, Barnes and Noble, as an audiobook on Audible, and I am at Law School Heretic dot com. And my direct email is Maria at Law School Heretic dot com. And I've got a lot of articles on my blog that give assistance to self-published authors. And yeah, so that's where you can find me. I'm also on, you know, Facebook and Amazon and Goodreads.
Mindy: Writer Writer Pants on Fire is produced by Mindy McGinnis. Music by Jack Korbel. Don't forget to check out the blog for additional interviews, writing advice and publication tips at Writer Writer Pants on Fire dot com. If the blog or podcast have been helpful to you or if you just enjoy listening, please consider donating. Visit Writer Writer Pants on Fire dot com and click “support the blog and podcast” in the sidebar.