5 reasons you should get a lawyer to read your book is designed to help both authors and publishers. Whether it's a fiction or non-fiction book, a pre-publication read by a book lawyer should be high up on your 'to do' list.
The 5 reasons you should get a lawyer to read your book are (drum roll please!):
to avoid claims of misleading and deceptive conduct;
to ensure your book does not contain any defamatory material;
to avoid infringement of intellectual property rights;
to properly use disclaimers; and
to avoid breaching the terms of any contracts.
Engaging a lawyer to vet your pre-publication manuscript can ultimately give you piece of mind. The legal vetting process is an important step and one that should not be overlooked.
Author: Farrah Motley, an experienced commercial lawyer located in Australia.
1. Avoid claims of misleading and deceptive conduct
It is illegal for a person, in trade or commerce, to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. A claim of misleading and deceptive conduct may arise even if you didn't intend to mislead or deceive anyone and no one has incurred any loss as a result.
If you arrange for a lawyer to vet your book, they will read the pre-publication manuscript and asses whether the words are likely to create an overall impression on readers that is false or inaccurate.
There is a lower risk of claims for misleading and deceptive conduct in relation to fiction books than there is for non-fiction books. This is because non-fiction books are usually based on real people, places and events. Fiction books, on the other hand, are just that - fictional, made-up and intentionally designed not to reflect reality. However (and the reason why I say 'lower risk' not 'no risk') is that aside from the story itself, there are other aspects of a fictional book which may warrant reviewing to confirm that they do not contain misleading and deceptive material, such as an author's bio.
2. Ensure your book does not contain any defamatory material
In Australia, defamation is dealt with in State and Territory-based laws, for example the Defamation Act 2005 (Qld) as well as the Common Law (judge-made law which has been developed over a long period of time).
Essentially (and in the context of publications), defamation involves the publication of words which cause or are likely to cause harm to the reputation of another person. Defamation can also apply to small businesses, but it's usually in the context of an individual's reputation. Defamatory statements that are written are referred to as 'libel' (whereas 'slander' is a spoken form of defamation).
People sometimes mistakenly think that if something is true, then it's not defamation. That's not strictly correct. Firstly, the fact that something is true creates a defence against a claim for defamation (but won't necessarily prevent the claim in the first place) and you need to make sure you have reliable evidence to prove that a claim is true. If your source is unreliable, you may be in a world of hurt when your defence of truth crumbles.
As with claims for misleading and deceptive conduct, the risk of a claim for defamation is lower for fiction books than for non-fiction books. However, there may be books where the author has been inspired by or based a fictional story on real people, places and events.
If a reader could reasonably ascertain the identity of a real person from the story, and there is potential for that publication to damage to their reputation, there may still be a risk of defamation, albeit a low one.
3. Avoid infringement of intellectual property rights
Hopefully you (being the author or the publisher) have done your due diligence to make sure there are no copyright issues.
Copyright issues may arise when there are issues with regard to the originality of an author's work. If a part of the publication is not original, it may be necessary to get permission to use the work of the original writer (or the subsequent owner of the copyright). Alternatively, a lawyer can advice you whether an exception to copyright infringement applies, such as a use of others' work that is a ‘fair dealing’. Fair dealing includes when the work is used to criticise or review, for parody or satire as well as reporting the news.
Copyright aside, the other major cab-off-the-rank is trade mark infringement.
Believe it or not, trade marks aren't just brand 'logos'. Trade marks can also be unstylised words on a page. So if you're referring to phrases like "you can't be serious", you need to be careful because depending on how you use it, you might receive a cease and desist letter. And if you've waited until after publication, this could involve some costly back peddling.
You can attempt to carry out some basic trade mark searches by searching a word or phrase on Google and assessing the results. Even better, hire a lawyer to carry out an in-depth trade mark search with IP Australia.
4. Properly use disclaimers
If your book provides advice (for example, legal or financial advice), it's important that you include a disclaimer. Disclaimers aren't mandatory for writers to include in their book, but they can go some way to help mitigate risk and they don't do any harm.
Put simply, a disclaimer will let readers know that they shouldn't rely on any advice in your book. After all, you can't know about a reader's individual circumstances and a non-fiction book which provides some kind of advice is generally intended to be informative only.
A legal disclaimer can't stop an author from being sued, but disclaimers can make it more difficult for a legal action against a writer to be successful.
Below are some examples of legal disclaimers which may be included in a book publication:
The names and identifying details of some characters in this book have been changed.
Although the author has made every effort to ensure that the information contained in this book is correct at the date of publication, the author does not assume and hereby disclaims any liability to any party for any loss or damage caused by inaccurate information.
To protect the privacy of some individuals, the names of people and places have been altered.
5. Avoid breach of contract
If you've promised to do or not do something in a contract, and you go against that in your publication, you may have a claim brought against you for breach of contract. A claim for breach of contract can be very costly - it could even involve you having transfer all your hard-earned profits or royalties to someone else (yes, it can be that bad!).
Breach of contract claims can come about in several ways, including by:
disclosing something you promised not to in a non-disclosure agreement;
failing to avoid legal claims against your publisher; and
failing to obtain appropriate third party consents to use material in your book.
If you want to hire a lawyer to read your book, visit our dedicated pre-publication legal page.
Do you have a book that needs vetting by a lawyer?
Organisations such as the Australian Society of Authors can provide you with industry-related advice. But it's also important to have a book lawyer provide tailored legal advice for your publication.
Prosper Law can help you with your pre-publication legal review. We will provide you with a fixed-fee quote to vet your manuscript and give you piece of mind before going to publication.
Contact us today to speak with an Australian commercial lawyer.
Author: Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121