Can I? – Thinking about legal questions

Frequently, authors ask what I call “Can I?” questions. Basically – “Can I do X without getting into legal trouble?”

No, I’m not talking about ecstasy. This isn’t Raver-in-Law. When I say “can I do X,” X refers some action by an author that might lead to legal problems. For example, it might be “can I include song lyrics in my novel?” or “can I use another author’s character in my story?” or “can I write a story about a sentient Barbie doll?” or “can I use a celebrity as a character in my novella?”.

When I hear a question like that, I actually think about it as three different related-but-separate questions, and I encourage you to do the same. Those three questions are:

• Question #1: Will a court rule against me for doing X?
• Question #2: Will a gatekeeper react negatively to my doing X?
• Question #3: Will I get sued for doing X?

So, let me explain why you want to consider each of these three anytime you ask a “Can I?” question. I will assume you are in the world of traditional publishing. At the end, I’ll briefly go into the differences in the self-publishing context.

Question #1: Will a court rule against me for doing X?

At its core, this question asks about how the law judges X. Is X copyright infringement? Is X an infringement of a celebrity’s right of publicity? Is X trademark infringement? Another way to rephrase the question is will I win or lose a lawsuit about X.

My impression is that this is what most writers have in mind when they ask a “Can I?” question. Although the answer to this question influences the answer to the other two questions, it may ultimately be the least important of the three questions in a writer’s decision-making process.

It is also my impression that this is what most lawyers, particularly newer lawyers, think when they hear a “Can I?” question. It’s certainly where my mind goes first. You see, this is what lawyers are trained to do – i.e., turn facts into legal conclusions. Answering question #1 is a lawyer’s core competency, and therefore it is the realm in which they feel most comfortable.

It’s not the only competency a lawyer can offer. An experienced lawyer should also be able to offer you guidance on question #3, and more experienced lawyers will offer counsel on question #3 without your prompting.

Question #2: Will a gatekeeper (e.g. an editor) react negatively to my doing X?

If your goal is to get published in a magazine or by a traditional book publisher, then you will have to get past at least one gatekeeper. This gives the “Can I?” question a new dimension, namely question #2. If an editor thinks your doing X creates too great a risk of incurring liability or of merely getting sued or of creating resistance within their own company, then your having done X may lead them to reject your story or novel. Regardless of its other wonderful qualities.

The answer to question #1 might be that you would win any resulting lawsuit, but the answer to question #2 might still be negative in terms of your getting past the gatekeeper and reaching your goal of getting your story or novel published. In fact, since the answer to question #1 is rarely if ever given in absolutes (“You would win”) and is more commonly given in probabilities (“You would likely win”), you can see how a gatekeeper might be unwilling to take the risk. Further, most gatekeepers are unlikely to seek out legal advice while considering your manuscript. So their impression of the risk or even their not wanting to have to go through the trouble of getting legal advice may lead to a rejection of your manuscript – a rejection not based on its overall quality but simply on your having done X.

Of the three questions, question #2 is also the least likely to be answered by a lawyer. It is not really within their area of expertise unless they have a lot of experience in the publishing industry (precious few lawyers do, even among those who specialize in intellectual property law). You really have to get answers to this question either by talking to people with experience in the industry or by examining what has gotten past gatekeepers.

Question #3: Will I get sued for doing X?

As I pointed out in an earlier post about the Midnight in Paris case, whether you win a case or not is not the only consideration. Defending a lawsuit can cost you a lot of money, and if you are in the US, you have to pay your own costs and attorneys even if you successfully defend your work. Your total outlay can get into six figures just to get you through a trial. It will also cost you time across multiple years. It can keep your work in legal limbo for years. And that does not even factor in the psychic drain caused by years of fighting and uncertainty.

So the question “Will doing X get me sued?” may be just as important as “Will a court rule against me?”. Of course, the likelihood of winning a lawsuit theoretically influences the risk of being sued. Theoretically. Again, remember the Midnight in Paris case. No one though that was a winner, but the Faulkner estate still sued and Sony still had to defend themselves. There is no question that some rights owners will pursue anyone who comes even close to their rights. Many of them have such extensive resources and the willingness to use them that most smaller entities just stay away from their rights even where the law would likely allow a particular use.

In other words, even if you are legally in the right, do you want to expend the money and energy defending your “doing X”? I submit to you that the answer is most often going to be no. The only exception I can think of is where the entire expression, what you are trying to say, depends on the use likely to anger a rights holder. The Wind Done Gone is an example. They had to be fairly certain that Margaret Mitchell’s estate would sue, but went ahead with publication anyway.

Experienced lawyers should be able to advise you on many entities who are known for vigorously defending their rights, even when the use in question is likely within the letter and spirit of the law. However, they can’t predict what every rights holder will do. Again, observing what is already out there and whether a rights holder has sued in the past can give you some, but not complete, guidance.

Self-publishing and the questions

The questions and my discussion on them has so far assumed traditional publishing. How do they change for self-publishing?

The primary difference is that the gatekeepers disappear. You don’t need to get past an editor worried about your “having done X.” However, that doesn’t mean question #2 goes away, because you still have an intermediary who is in control of the availability of your work. Amazon or some other online retailer can still pull your book or website when a rights holder complains to them (through a notice and takedown procedure or a threat of suit against the retailer). Do you think Amazon has a big interest in fighting for you? Nothing against Amazon or any other retailer, but it’s not really their fight. Recall what happened with the recent ‘Spots the Space Marine‘ kerfuffle. Games Workshop did not sue the author; they got Amazon to pull the book. Now, eventually Amazon put it back up, but only after a fairly big rights advocate (EFF) entered the fray on the side of the author.

So question #2 becomes: Will an intermediary pull my work because someone complained about my doing X?

The other difference with self-publishing is that you miss out on some of the protection the gatekeepers provide. Their reluctance to push boundaries may be a negative in your attempt to get your work traditionally published, but it also protects you from unwittingly getting yourself into trouble.

Take away: When asking “Can I do X?” your most important consideration may not be whether you would win in court. It will probably be whether you want to fight gatekeepers, intermediaries and litigious rights holders – or whether you want to spend your time and energy writing.

(And remember, each circumstance is different. I don’t know yours. So this is not legal advice!)