Friday, December 17, 2010

A Lawyer's Perspective on Publishing, and on Fair Use

I confess that I take a somewhat geeky interest in matters of publishing law. But even if the law holds little allure for you, as a publisher you can't avoid legal questions. Every editor has to negotiate contracts, secure permissions, and make sure that manuscripts don't run afoul of libel or privacy laws. And writers need to pay attention to the same questions. So I was happy to learn that Mark Fowler, an experienced publishing lawyer who has also been an author, is now blogging about publishing-law issues at I have myself benefited from Mark's astute counsel (and unflappable demeanor) in the past, although he does not currently represent me or Bloomsbury Press. I recommend his site to editors, writers, agents, and anyone else who wants to understand some of the peculiar nuances of our business.

Last week Mark posted about the always confusing and often contested topic of "fair use"--the doctrine that permits one author to quote another's copyrighted material for purposes of comment, criticism, or scholarship. As he observes, it has been an unfortunate development in recent history that lawsuits or other aggressive moves by rights holders have discouraged some authors from using certain quotations, and in some cases has forced them to paraphrase or omit the texts that they're writing about. I agree with Mark that while authors need to be careful, they shouldn't be too diffident about relying on the principle of fair use. Many times I have quoted to authors some lines I have virtually memorized from the Chicago Manual of Style that I thumbed through constantly when I first started in publishing.
"Fair use is use that is fair--simply that....The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly."
I was happy to see that these lines still appear (though slightly modified), in the new 16th Edition of the Manual. They still hold true.

 (Illustration: Lawyers by Honore Daumier, via Wikimedia Commons)


The Novel Road said...

Super post! Timely as well.

I recently was part of a discussion regarding the use of Trademarked products and icons in writing. "Fair Use" leaves a broad almost "do so, but you better be nice" definition out there I'd love to have clarified.

I know this is a bit of a stretch from the scholarly use of quotes to affirm or contest a supposition in a learned work. Yet the subject is one I'm personally concerned with in my own writing.

In fiction what are the lines that can't be crossed? I use the name of a product, the ever nutritious "Hostess Ding-Dong" (Just mentioning "Ding-Dong" on Dr. Syntax makes me laugh).

Is permission needed to mention a product? I have heard two schools of thought:

1\ If you disparage the product you could be liable.

2\ Making money by use of a product name without permission is a no-no.

It's why most fiction authors create their own product names.

But who can replace the awesome literary power and imagery of the shiny Ding-Dong? :-)

Have a great weekend Peter,


Peter Ginna said...

Doug, In all honesty, I have not encountered a problem with the use of a product name in fiction. Some authors have been criticized for excessive "name-dropping" of trademarks in their fiction, on the grounds I think that it was an obtrusive way of adding verisimilitude. But the biggest concern of trademark holders is usually that you DO use their trademark as such, rather than as a generic word. That is, the Coca-Cola Company wants your character to order a "CokeTM" rather than a "coke." They fear the loss of trademark status more than you making a few pennies from dropping their product's name in your story.
Now, if you wrote a story in which a snack-food company used some budget filling to save money and it turned out to be toxic, in that case you might be better advised to make that product "Zing-Zongs" rather than Ding Dongs, Ring Dings, or even Ho Ho's.

family lawyer perth said...

I have to agree with Peter. While some authors have gotten in a little trouble for too much name dropping, companies will typically welcome the indirect marketing that comes with mentioning their product.