Q. I am completing my first novel. I have heard that I should have an attorney review it for legal liability. Is this really necessary
A. Unless you are self-publishing, a legal review is not necessary until you have obtained a publisher. Typically, your editor will evaluate the need for a legal review of the manuscript, and whether it will involve a cost to you. If you intend on self publishing, however, below is a brief summary of the issues you should consider. Consult an attorney if any of these issues could expose you to liability.
Copyright. Since 1978, U.S. copyright is automatic when an original work — text, art, photos or music — is created and fixed in a copy or recorded for the first time. Reproducing someone’s copyrighted work without their permission — even if you give them attribution – is infringement. You must get permission from the copyright owner for all material – text, quotes, lyrics – used in your novel unless the material is in the public domain. (“Fair use” generally does not apply to novels, which are commercial works; including some lyrics by the Rolling Stones is not fair use.)
Defamation. Defamation is written or spoken injury to a living person or organization’s reputation. Libel is the written act of defamation, vs. slander, the spoken act. In general, truth IS a defense; a true statement cannot be defamatory. But what if isn’t true, or only partly true? In fiction writing, the Supreme Court interprets the First Amendment to hold a publisher and author liable for publishing a defamatory statement only upon a showing of negligence. A plaintiff in a defamatory-fiction lawsuit must show that the publisher of a defamatory statement knew or should have known that a “fictionalized” character was objectively identifiable as a real person. Public figures have an even higher standard: they must show that the defamatory statement was published with “actual malice.”
Right of Privacy. Privacy law consists of four distinct “torts” or legal wrongs: intrusion upon seclusion; appropriation of name or likeness; public disclosure of private facts; and publicity placing a person in a false light. Generally only public disclosure of private facts is relevant for novelists. It occurs when a writer discloses private and embarrassing facts about a living person that are not of “public concern,” because First Amendment rights protect publication of items of legitimate public concern, such as the details of a crime. The public’s interest in knowing about the incident outweighs the privacy factor. If, however, the matter is not one of public concern, and is one that most people would find highly offensive, there is an invasion of privacy. Matters of public record, however, are not protected by privacy law. If you write a story disclosing facts obtained from a court opinion, the matter is of public record and no lawsuit will be successful.
Right of Publicity. Most states now have laws that protect living celebrities, and in some states, recently dead celebrities like Elvis Presley, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray a celebrity in your novel without defaming him or his family, you need not seek the celebrities’ permission (although it’s always safer to do so). You would, however, need permission to exploit purely commercial “spin-offs” of your work, such as t-shirts or posters.
Trademark. Don’t confuse trademarks with copyrights. Trademark protects the source of the work (the “brand name”), not the original artistic or literary work itself. Book and movie titles are NOT protected by copyright (that is why you see many that are the same), but trademark CAN protect a book or movie title if the mark is owned by a publisher, author, or entertainment studio in connection with an ongoing series (Star Wars, Star Trek, Harry Potter, etc.). With regard to using trademarked names in your novel – not to worry. I am unaware of any case where an author or publisher has been sued for writing “she drank a Diet Coke” instead of “she drank a diet cola beverage.” Fiction would be crippled if authors were not able to use the names of common, everyday items in their writing. (In non-fiction, it is proper and customary to place the TM or ® symbol next a trademark, but that would destroy the suspension of disbelief in fiction.) Where you CAN get into trouble is if your writing defames the trademark — e.g., a plot where Starbucks coffee gradually poisons the population of America. But even if you did this, the chance of it being noticed is small unless your book is a big commercial success. Publishers typically include a disclaimer at the beginning of the novels such as “all trademarks are property of their respective owners.”