How to Protect the Intellectual Property In Your Book

Your book is the culmination of your ideas, your experiences, your insights, and a ton of hard work, so it’s important that this intellectual property is protected from infringement and other threats. Imitation is perhaps the sincerest form of flattery, but flattery is no comfort if someone else starts profiting from material that you created. You can best protect yourself with a basic understanding of copyrights, trademarks, and subsidiary rights and the ways they apply to your book. Even if your publisher is in charge of protecting your work, it’s wise to ask educated questions and review everything you sign with an attorney who specializes in intellectual property law.

Copyright protection for authors

First things first, let’s establish a basic understanding of copyright related to published works. A copyright is the exclusive right to print or publish your material and to authorize others to do the same. Copyrights are also useful to authors because their power stretches into TV, film, and other industries where the book could be used without permission. Copyrights do not cover your ideas in and of themselves but, rather, the unique expression of them. The term unique is important; without it, someone could conceivably write one book about how to lead a successful sales team and shut the whole genre down.

A copyright technically goes into effect the moment your content is created, but in order to legally enforce the copyright, it’s still necessary to register with the US Copyright Office. If you’re working with a publisher, they’ll typically take care of the registration as a matter of routine, but it’s still wise to make sure that is addressed in your agreement and to obtain documentation when it is complete.

Before registering a copyright, you need to make sure you are not in violation of any other copyrights. If you use song lyrics, images, or excerpts of other works in your book, you could be at risk for being sued for copyright infringement if you have not been given permission from the owner. Some uses (parody, critique, research) can be categorized as fair use and may not require permission, but that depends on how much content you borrowed and other factors, which, unfortunately, can only be weighed and clearly assessed by a court. This makes it important to have your licenses in order or, if you do decide that you want to rely on fair use, to consult early and often with an intellectual property attorney.

Public domain

In terms of using outside works in your book, the only relatively safe area is true public domain works, which means books published before 1923 and government works. I say relatively because there are sometimes exceptions to the exceptions, so again, if you are not absolutely sure whether something is public domain (and content being readily available on the Internet does not automatically qualify), you should review it with your attorney.

What you can trademark and what you cannot

A trademark is a symbol, word, or words legally registered or established by use as representing a company or product. Though trademarks also protect intellectual property, the requirements to register a trademark are more stringent than those for copyrights. This can strengthen the protection around the expression of your ideas.

The chances of your trademark registration being approved are dependent on your intentions and some factors from the outside world. For example, if disruption is a theme in your book, you can’t trademark the word disruption unless it is connected to a good or service that you’re selling. Common words are also difficult to trademark, because of the likelihood that the trademark would be violated every day. That said, if you wanted to trademark “John Smith’s Disruptive Method for Success,” a tutorial that you sell to your clients, you would stand a much better chance of having your trademark approved. You could also trademark the title of a series, like The John Smith Disruptive Method for Success series, because it is a unique title for a product that you’re selling.

Additionally, keep in mind that the trademark will apply only within your specific market and class of services. A trademark registration can be particularly advantageous if you’re the first in your industry to trademark the title of an important service, but difficulties can arise if you’ve trademarked the title of your book series, but someone is trying to claim film or TV rights to your work through copyright through a publishing agreement. Before you attempt to register a trademark, conduct thorough research on what you’re trying to trademark and its competition so you can assess whether it makes sense to seek a registration. If you’re not sure, here are a few questions to help you get you started:

·     Is this mark directly related to my product or service?

·     Is this mark commonly used in my industry or by the general population?

·     Is anyone else already using this, and if so, do they already have it trademarked or have a significant brand presence anywhere that could lead to confusion in the marketplace?

So let’s say that you have done your initial analysis. We’ll assume you answer yes to the first question above and no to the other two questions. It is looking like our The John Smith’s Disruptive Method for Success mark could be used to build out your brand and platform. If you went with a traditional publisher for your book, there is another question for you and your attorney to consider—and preferably consider before you incur all of the legal search fees that go with a trademark application process:

·     What rights to the title did I grant or assign to the publisher?

Many authors are surprised that even though they may have come up with their own title and made their intended uses for it in their business platform clear to their publisher contractually, the publisher may have taken some rights to the title. Depending on the terms of the agreement, this could prevent the author from using the title in their business.

This is not a hypothetical scenario. I have worked with authors who have found themselves in this predicament with their traditional publisher and who then pivoted to the hybrid publishing model in order to retain those rights and fully use them for their business platforms. If you are starting a new business using your book content or book title as a pillar for your services and platform, this is a very important item to keep in mind when considering your publishing options and in negotiating any deals with traditional publishers.

Who owns your work?

Now that we’ve gone over the basics of the copyright and trademark processes, the next question that usually comes up is who handles the copyright filing—the publisher or the author?

The answer depends on your agreement with the publisher.

In the traditional publishing model, the publisher would likely take care of the copyright filing.

On the opposite end of the spectrum, authors who opt to self-publish their books maintain all the rights to their work and bear the burden of protecting that work on their own.

Hybrid publishers can go either way. Greenleaf Book Group, for example, allows authors to maintain all intellectual property rights to their content but offers to handle the copyright filing on their behalf.

Owning the copyright of your work also gives you control over infringement actions, including Internet takedown requests under the Digital Millennium Copyright Act (DMCA) to prevent infringement of your work. This comes into play in the rare case when an unauthorized person posts portions (or all) of your book online without your permission or lifts your content completely and posts it with a title and cover of their own creation.

If you have a coauthor or contributor to your work, you should get a written assignment of all copyrights and make sure any contributed content from those contributors is either original or has the proper permissions or licenses to be used in your book. This basically means that your contributor will be providing content on a work-for-hire basis, assigning the copyright on their material to you.

In any case, even a traditional publisher doesn’t technically take all rights. You always retain copyright, unless you sold it in a work-for-hire arrangement, which transfers copyright away from you.

Ownership of rights can be tricky on the legal side. For many authors, the question of who owns their work can be a deal breaker, especially when it comes to subsidiary rights.

What are subsidiary rights?

When thinking about your book’s rights, it’s best to think of that protection as a collection of smaller rights. While you can sign over most rights to a traditional publisher, in many cases, there is room to negotiate exactly which rights they receive.

This leads us to subsidiary rights, which are most easily defined as the rights to produce different versions of the book outside of the original publication format.

A few examples of subsidiary rights include—

·     Reprint Rights: This includes publishing versions of your book in paperback, large format, illustrated format, braille, and so on.

·     Film Rights: If a producer wants to make a movie or television series based on a book, they will negotiate the terms with the holder of the film rights.

·     Book Club Rights: Book clubs, like Book of the Month, may negotiate special deals or printings with the copyright holder.

·     Audio Rights: This includes the rights to produce and distribute an audiobook version of the work.

·      Translation Rights: Foreign publishers may contact the rights owner to create and distribute a version of the book that has been translated into another language.

At first glance, it might seem much simpler to sign over all of these rights to the publisher and let them negotiate on your behalf. After all, they have strong connections within the industry and more knowledge around terms. What could be the downside?

The best way to answer that question is to have an honest assessment of your goals for the book. For many authors, the book is part of a much larger business or initiative, and their goals don’t stop at book sales.

If you intend to use your book to bolster your company or brand, subsidiary rights dealing with ancillary products may be extremely important to maintain. For instance, without the proper subsidiary rights, you may be limited in your ability to produce things like online courses, workshops, or speeches that rely on your content.

Understanding how you would like to use your content in the future will help guide your decisions about how to publish your work and which rights to grant.

Should you go the traditional publishing route, you also do not want to be in a position where the publisher ties up your work and loses interest in supporting it. The publisher converting the book to print-on-demand status in order to keep it on their list without any associated overhead from printing inventory usually indicates this swing. Print-on-demand distribution can limit brick-and-mortar retail access, so if this is a concern, confirm that your agreement includes a reversion of rights set of terms that outlines the scenarios (switching to digital distribution via print-on-demand, abandonment during the production process, etc.) where you are able to reclaim your rights and take back control of your work.