Welcome to Episode 64 of Published. Today we’re talking to Greenleaf’s General Counsel, Guy Muller, about the biggest legal issues he sees authors face and why it’s important to keep an eye out for them when working on your book. Guy explains each of these legal concerns, why they matter, and how you can avoid them in your writing to stay out of trouble.

1:39 - Guy, welcome to published. Thrilled to have you today. Maybe start by telling us who you are and what you do at Greenleaf.

· I'm Guy Muller. I'm the General Counsel over here at Greenleaf Book Group. I handle all things legal. I get to handle all the contracts, the negotiations, draft things.

· And of course, the bread and butter over here is really looking at these manuscripts and checking them to make sure that there's not things that's going to get us sued or our authors sued. So content liability reviews, we're looking for all kinds of stuff like red flags that might get us in trouble down the road.

· My main job is to keep us out of the courts and keep us from getting sued.

2:25 - What are some of the legal red flags that might either prevent a publisher from taking on a project or getting an author into trouble down the road?

· The main thing that we see and a lot of authors have issues with are defamation, invasion of privacy, copyright infringement, and trademark infringement. There are some nuances with each one of those. None of them are black and white, it's hard to identify and know for sure if you're going to violate any of that stuff.

· There are things that people can do to make sure that "Hey you know what, I'm writing this down, and I have this manuscript, and I'm talking about certain things. And there's some of this stuff where I'm kind of freaked out about some red flags here. Maybe I should go and talk to a lawyer about it." The issues we really need to look out for are defamation, invasion of privacy, copyright infringement, trademark infringement.

· Defamation is whenever you're talking about somebody and there are statements that are not true. And it's really damaging to the person that you're talking about. That's a very high-level definition of defamation.

· And the same with invasion of privacy. The stuff that people expect to be private information and expected not to be releasing to the public and things that can really harm their reputation. That's what we look for, for that.

· Copyright infringement and trademark, it's a little bit more clear to see that with creative works and things like photographs or quoting from books or lyrics, things like that. We look for a lot of that content and we try to see if there's anything that we can do to clean up that whether it's through getting releases, permissions, or modifying the content to lower the risk with things like defamation or invasion of privacy.

3:50 - So that authors understand the seriousness of being careful here, what are the consequences they might face if they ran into trouble with one of these issues that you've just described?

· The most obvious is you can get sued. And that's never fun. Nobody ever likes getting sued. So if you do get in trouble for some of this, somebody can make a claim and they can sue you for damages. There are all kinds of damages that you might be liable for.

· There are actual damages, things called special damages and punitives, which are like, "Hey, this is a punishment for what you did and we're trying to make it clear to society that you did something wrong. We want to make sure we're deterring this conduct in the future by other people." Those are punitives.

· In some situations, you might also be liable for things like attorney’s fees, court costs, and a lot of that stuff can be a lot worse and a lot more money than the actual damages in the case. Those are the obvious ones.

· You might have to delay publication of your book if your book is out there and you've worked real hard to get it out there and meet all these publication deadlines, then next thing you know, you get a claim for defamation. You got to pull those books back, you got to make sure they're not out there being distributed. At that point, you may have to destroy all these books which can cost a lot of money. Let's say you went gung-ho, and you got a best seller run, you just printed 10,000 copies of a book. The next thing you know, somebody hits you on a claim for any of this stuff, and you got to pull back all of those and then possibly destroy them. That can get very, very expensive, very fast.

· That's not fun having to put things on hold and trying to clear that up. And then if you get involved in the actual court case, you're having to actively litigate it, and that can take a long time. Nobody wants that.

5:55 - A lot of authors who are writing, let's say, memoir, or nonfiction are probably at some point going to be referencing other people and other people's business. Especially in memoir, we've seen a lot of this lately. When is that a legal issue?

· It gets problematic whenever the content starts getting negative. If somebody is talking about someone and it's something where they are really going into detail about something bad that happened to them, some type of negative situation, they're making this person look bad, harming their reputation, or exposing them for some stuff that they did, those are areas that we must flag. We have to make sure that we take the proper approach to mitigate getting sued or facing any claims on that.

· If it's something like defamation, we're trying to verify whether the statements that the authors make are true or not. A lot of times we can't do that, or it's very, very sensitive information. We want to believe our authors and take it at face value. Sometimes you just can't prove it.

· What we try to do there and look out for in those types of books and works is to make sure that we verify truth, let's stick to our research here, if we can verify it, that's great, because that will clear up on defamation issues. And then we also look at other stuff like for invasion of privacy. If it's negative, it looks like it might harm somebody's reputation. We really must look at that and we got to see if there's anything that we can do to mitigate that.

· With those approaches, you can get releases where somebody might say, "Hey, I'm not going to sue you for this. I'm going to release all these claims." But if you're going out there, you're publishing information that's harmful to somebody's reputation or if it's true, and you're talking about all this bad stuff this person did, the odds of getting a release in those situations are slim to none. That's why we need to verify the truth of this stuff, or we got to make sure it's not private information that's gone out here in public.

· If there's nothing else we can do, then we look at the content, we see if it can be modified in any way to obscure the person's identity, to make it to where the amount of people in the world that can actually identify this person is as small as possible. So that not everybody is out there just reading it knowing exactly who you're talking about. We're trying to make sure that there's only a very, very small amount of people, and hopefully, nobody that can recognize it.

· The main things we look for there, especially memoirs and stuff is if it's negative information, things that are sensitive information. Stuff like health, finances, sexual orientation, sexual activities, things like that we really look out for.

9:10 - Now switching gears to what we call permissions. Authors often want to use song lyrics, quotes, or images from someone else's work. And as you know, we have to flag that as well. So how does an author do that correctly?

· It's kind of difficult because a lot of authors think like, "Oh, hey, I'm quoting this person, or I'm quoting this little bitty lyric right here and I'm giving credit to the author or the musician" and they think it's okay. It seems like it would be, a lot of times it might be, but a lot of that stuff is copyrighted and it's a property.

· If you're using famous quotes and it's a real small quote, and it's not making the person look bad, you might be okay and get by with it. But I always advocate for the belt and suspenders approach in a lot of this stuff. I like being very, very cautious in this. I'll say, "you know what, if you can get permission to use this content, that's definitely going to be the best way to go." Because permissions, they will outline how the content that you want to use, how you can use it, and release claims from getting sued on top of that. You need to look out for that like quotes, even from books.

· If you're looking at song lyrics, at least over here at Greenleaf Book Group, we always require permissions for song lyrics. When you look at the amount of a lyric in the actual entire work, and how much there actually is, the lyric is a very important part of a song. The way that copyright law works, that's a substantial part of that work and you're taking quite a bit of it. So they need to go out and actually get permission for it. We require permission every single time.

· If it's something like quoting from a book or a magazine article, we really look at it, and we see how many words are used and how much of the portion of that book that work is used. If it's a book, I think our rule of thumb here is about 300 words or so. If it's anything more than that, you got to go out and get permission from the actual copyright owner to be able to use it and publish it. If it's an article or magazine, it's a smaller amount of material. So a smaller amount of words could be copyright infringement. We really look at here about 50 words or so. And then if anything above that, we go out and we make sure that we get permissions in everything to use all that.

· Really what it boils down to quotes, lyrics, things like that. Yes, still go ahead and give credit to the person you're quoting from, but always be more safe than sorry. Go out there and get permission to use it.

· It’s easy for people believe, "I got it on the internet. That's public domain". No, just because it's on the internet does not mean its public domain. There's a lot of problems there. If somebody wants to use any of that, and they find any of it, it helps your publisher if you do. If you've marked that stuff in your manuscript, if you put the source of it, you figured all that out, and you don't have to go out and get it immediately. You can write your manuscript, you can write your draft, just take note of it. Realize, later, "if I want to use this, I'm likely going to have to go and get permission to use it." But just know that that's a possibility and it's something that is likely going to be required by your publisher.

13:19 - Let's talk about titles. What should an author know about the law on book titles and how they could protect those?

· Titles, in general, cannot be trademarked or copyrighted. That's just the general rule. There are exceptions, just like with all this stuff. If you have a single book, you just published it, and it's not well known or anything, you're going to have a really hard time getting a trademark or copyright on that. Generally, you can't.

· If you have a series and it starts getting well known, and it's very popular, something like goosebumps or Harry Potter, then you can go out and you can get a trademark and copyright and all that. But, for the vast majority of what we do, and what we see over here, unfortunately, you can't get a trademark or a copyright.

· But it is still important to know that even though you generally cannot get a trademark or copyright, your book title can still actually infringe on another person's trademark or copyright. What we look at in there is if somebody comes to us and they want to use a certain title, we look at it, and we always look it up on the United States Patent and Trademark Office website to see what's been trademarked. We try to see if there's anything similar out there. If there's something similar, it's the same class of goods or something that might cause a consumer to be confused and mix up your book and whoever owns the trademark, whatever goods, and services they are selling. If it's caused somebody to think it's either endorsed by them, it's attributed, or it's the same company. That's when we say you really need to think about another book title here because there might be some trademark infringement issues. Just be aware of that. There can still be some issues there. It's never 100%. clear. I always recommend a lawyer looking at some of that stuff.

15:27 - At what point in the publishing process should the author be seeking a copyright for their work? And why is that important?

· Technically, you have a copyright to your work as soon as you create it and as soon as it's in an actual tangible form. But copyright registration is still very, very important. What we do here and what I always recommend is to register your copyright in the book after it's published. I say within three months of publication. That's what a lot of people recommend. That way, you have the publication date and if you register it with the copyright office within three months of publication, then you're eligible for things like statutory damages and recovering attorney’s fees if somebody infringes your work.

· Statutory damages, like we talked earlier, can exceed the real damages in a case. That and attorney’s fees can cost a lot of money as well. You want to get the copyright registered within three months of publication.

· Something else that you need to think about too is, let's say you're like "I don't care about statutory damages, or attorney's fees, or anything like that, I already have this automatic copyright to my book and it's in a tangible form." I always recommend copyright registration anyway. Because if somebody infringes your work, you can't go out and file a lawsuit and enforce your copyright until you file that copyright registration. It's very important to do that so that you preserve your ability to be able to go out there and bring these lawsuits against alleged infringers. It's great to have a public record of ownership of your copyright. I always advocate for it, and I'll always advocate for it within three months of publication.

· It's easy to register this stuff. You can do it online. You don't need a lawyer to do it. But again, I always recommend hiring an attorney for this type of stuff, because as an author and a creator, you spend so much time, energy, and effort making this stuff and creating this stuff. I think it's important to get a lawyer to help protect it. And not only protect you from an infringer, but also to make sure that you're not violating anybody else's copyrights. You're not going to go out and get a defamation suit and hold up publication of this baby that you've been working on for so long.

18:48 - In the case of true crime writers, so ongoing criminal investigations, or court cases, what should the author in that genre be sensitive to?

· The main thing, if you're writing about true crime, is to stick to the facts, stick to public record. Anything that's in the public, you don't have to look at invasion of privacy or invasion of privacy is not much of a concern. And of course, if it's true, and you stick to the facts, then that takes out possibilities for defamation. Theoretically, you at least have the fence there.

· Stick to the truth, do whatever you can to document your research, be very, very thorough with that stuff because your publisher is going to ask for it. I know we do here whenever we run across those. Really pad your file with as much information as possible.

· In a lot of these books there's a lot of interviews that take place with all kinds of people. Always get an interview release from whoever you interview. Do it upfront and make sure you get that thing in writing and signed. Sometimes you see people go out and they'll interview some subjects. It's all oral agreements and nothing's in writing. There's no evidence of it anywhere. That could be okay in certain situations, but it's enough to cause me quite a bit of heartburn. And I might say, "hey you know what, I know this is your buddy out here and they give you consent, but we're going to need you to go after the fact and get some type of release for this. Just because, you know, it's the best thing to do.”

· It's the number one thing you can do to minimize getting hit on some type of claim for either infringement, defamation, or invasion of privacy later. Stick to the facts, stick to the public record and you should be alright.

21:07 - Now submitting a manuscript to a publisher, that's something that we often get questions about. How do I know my work is safe? What's going to keep the publisher from stealing my work? How can an author protect themselves in that situation?

· You can definitely get an NDA. I would be super surprised if there was any publisher out there that didn't have their own form NDA for you to sign. I recommend if you're going to submit to a publisher, ask them "Do you have an NDA that I can sign?" Go with theirs. Review it, make sure it's up to your standards. They should have their own form. Get an NDA, if you're concerned about it.

· Keep in mind too, even if you don't have an NDA, if you're submitting a manuscript, we talked a little bit earlier about copyright and how you automatically have a copyright in your work as soon as it's in a tangible form. If you send it to a publisher, and then they steal it, and they copy, publish it, and take credit for it, you still have an avenue there for copyright infringement. Of course, you got to go through the process and then register. But there is still an avenue there and it's something else that should make authors feel better about submitting their work. I think the easiest path of least resistance up front is to ask the publisher for an NDA or provide your own.

· I always ask please people be reasonable with these. I've seen some crazy ones where it says “everything I tell you is confidential information, and this never expires. There are no exceptions.” Those are things that we take issue with, and we always recommend our own which is broad.

· There's exceptions and I believe it's proper and we got good ones but just please be mindful of that and be reasonable with those and just know that your publisher will likely have their own. And they might have something to say if your NDA is a little bit too broad.

23:30 - I know this isn't particularly sexy stuff for authors to think about. But it's so important for them to button all this stuff on the front end. So thank you very much Guy for all of this, well not advice. We can't say it's advice because Guy is a lawyer, and this isn't legal advice. Go out and get your own lawyer. But it is wisdom and to that end, we appreciate you giving us all this great information. Do you have any parting wisdom you'd like to share with our audience?

· This is not legal advice. I wish it could be. But unfortunately, it can't be. There's really nothing that's black and white in the legal world. Most of it’s in the gray area. That's where I make my living, it's in that gray area, it's in the mud. It'd be nice if it's black and white. But then again, I may not have a job. If everybody can look stuff up, it'd be super easy.

· My goal here today is not for authors to be able to make these legal decisions on their own, or to go out and practice law and to help other people be able to do this stuff. It's just to give you an idea of what publishers will look out for and any possible red flags that might be in your manuscript. Because again, I touched on it earlier, we spend so much time, energy, and effort creating these works and publishing it. A lot of times there's these works that are highly personal people, especially if it's their own personal stories. The last thing you want to do is go out and then have to deal with any kind of legal ramifications for any of this stuff. Be on the lookout for that.

· Be on the lookout for things like invasion, defamation, anytime you use any quotes, lyrics, images, anything like that, in your book. Just know that there's probably some issues there that you're going to have to come over, and there's some hurdles. It doesn't mean it's the end of the world. There's a lot of things you can do to clean that up.

· But the best thing you can do to make sure you sleep best at night, make sure that you're going to take the right path, you're not going to have to pull your book from the shelf, and occur all these expenses later down the road, is to go out and get a good lawyer to look at this stuff and to help you with it. I always will recommend that. And I think every author needs to do that at some point in the process.

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ABOUT GUY

Guy is responsible for Greenleaf's legal functions, including contract negotiation, risk mitigation, dispute resolution, strategic analysis, compliance advisory, intellectual property, and human resources. Guy has years of transactional and litigation experience in entertainment, intellectual property, SaaS, and tort law. Outside of the office, he loves spending time with his wife and son and is passionate about BBQing, playing, and producing music, and his favorite sports teams: the Dallas Cowboys and Austin FC. Guy obtained a B.A. in Political Science from St. Edward's University and a J.D. from the University of Tulsa College of Law.