Self-publishing is on the rise. Bowker Market Research reports that around 390,000 titles were self-published in the U.S. in 2012, a nearly 60% increase from 2011. This is good news for DIY authors, but it’s important to remember that when you self-publish, you take on the risks formerly assumed by the publisher, and that includes the legal risks.
#1: Don’t infringe another’s copyright. Except for certain limited uses under the Fair Use Doctrine (you must consider each of these four factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work), another’s words are protected and may not be used without risking a claim of copyright infringement.
For example, suppose your story is set in late-50s Memphis, and you think including a couple of lines of “Hound Dog” will help establish the verisimilitude your story needs. There’s no rule of thumb that says it’s OK to ‘borrow’ a few words. You may be able to license a few words or a few lines, but it won’t be free. Unless the use of the lyrics meets the requirements of the Fair Use exception, or otherwise transform the lyrics beyond their original use, the best advice is simply to stay away from another’s words.
#2: Copyright your work. If you’ve spent a thousand hours creating your chef d’oeuvre, why not spend an extra 30 minutes and $35 to obtain legal protection of your work? Copyrighting is cheap and easy, and it sets you up to decisively beat down anyone who infringes your copyright.
#3: Be prepared to carry the load a publisher would otherwise carry. As a self-publisher, you pick up responsibilities formerly assumed by a publisher. Here are just a few to consider:
– Editing: In addition to addressing grammar and syntax, a good editor also helps to massage and tighten the story. You may want to consider hiring a third-party editor (not your spouse, unless your spouse is an editor).
– Marketing and distribution: The classic book publisher not only designs the book cover and layout, but also provides money to promote and market the book (which is recouped from sales), and has the means to get it to the marketplace, and not only Amazon but actual bricks and mortar book stores. As a general rule, bricks and mortar booksellers do not sell self-published books. The self-published author must be prepared to take up the slack, finding ways to get the word out.
– Legal defense in the event of a copyright infringement claim: This can be critically important in the situation of a non-infringement, as the cost of defending such a suit can be staggering. On the other hand, if you have indeed infringed another’s work, your agreement with your publisher will provide that in the event of a successful infringement claim against the publisher, you will be expected to indemnify the publisher for its losses.