Intellectual Property (FAQ)

Please note: the information provided is of a general nature only, and the provision of it does not constitute legal advice, nor does it create a solicitor-client relationship. The reader should seek advice from a lawyer pertaining to any particular fact situation.

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I have an idea for a story. How do I prevent it from being stolen?

There is no copyright in an idea. There is only copyright in the expression of the idea. Therefore, the best way to prevent an idea from being stolen is to keep it secret, and to protect all expressions of the idea by marking them and/or registering them. See the answer to question 1.

What should I look for (or look out for) in a publishing contract?

A publishing contract is a complex agreement with many provisions. Consult a lawyer well-versed in this area for specific advice. From the author’s point of view, the most important provisions are those relating to copyright ownership, and reversion of rights at the termination of the contract. See the answers to questions 4, 5, 6, 7 and 8.

What does it mean if a publisher asks for “first rights”?

The publisher is asking to be the first to publish your literary work, allowing the writer the freedom to publish it elsewhere once the first publication of the work has appeared.

What does it mean if a publisher asks for “exclusive rights”?

This is a vague term, but likely means that a publisher wants all rights linked to your literary work. Consider copyright to be a bundle of rights with many strands, rather than a single right. A typical bundle of rights in relation to a literary work consists of the right to publish the work, to translate it, to turn it into a cinematographic work, and so on. If a publisher requests exclusive rights, it is probably asking for the entire bundle of rights, not just some of them such as publication and translation rights.

What other rights may a publisher ask for?

Other commonly requested rights are “electronic rights” which a lawyer will counsel you to resist, and yet these are so commonly requested that relatively novice authors will not likely be able to negotiate these. The term when first used was extremely vague, but as technology evolves is almost certainly understood by publishers to include e-book publishing rights.

My writing is being used/reproduced/distributed without my permission. What can I do about it?

The author or other owner of copyright material subject to infringement should send a cease-and-desist demand letter to the infringer. If the infringement continues, then the owner may elect to bring a lawsuit for copyright infringement. If the copyright is registered at the federal Copyright Office, such a legal action will be much simpler and easier to enforce. 

Do I need permission to use another author’s work in my writing? What if it is a quotation with credit given?

Copyright in a work subsists for the life of the author, plus 50 years. Assuming the author of a work is alive or has not been deceased for 50 years, then the permission of that author or other owner to the use of that work must be sought and obtained. There are exceptions to this rule, such as research and private study, review, satire and parody, and more recently, educational purposes. These exceptions are broadly referred to as fair dealing. The user of work in which copyright continues to subsist should seek a lawyer’s opinion before assuming fair dealing applies. Even if fair dealing applies, attribution may well be required.    

I will be conducting interviews as research for my writing. What do I need to know about the legalities of using interviews as source material?

The written permission of the interviewees should be obtained before interview material is used. The law respecting privacy rights is still developing and great caution should be exercised in using interview material.

My writing is based on real life events. How do I protect myself from being sued?

The creator of non-fiction literary works should always be mindful of defamation laws, specifically libel in the case of written works. Defamation is a complex area of law, and so the basic premises that “truth is an absolute defence” should not be relied upon. The creator and his or her publisher should obtain legal advice before publishing non-fiction works that could be perceived as reflecting adversely upon another person, or as depriving a person of his or her right to privacy.

© 2014 – 2016 Jeananne Kathol Kirwin of Kirwin LLP