How to Write Non-Fiction: Legalities: Copyright and licensing, quotes, lyrics, images, and more
Disclaimer: I am not a lawyer, and this is not legal advice. Please seek legal help if you need specific advice about your situation.
This chapter is an overview from my perspective based on questions that authors often ask. Please check the books listed in the Resources section below for more detail, and please talk to a professional about your situation if you need more help.
Copyright
“Copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used.”
—Stephen Fishman, The Copyright Handbook
Copyright law grants authors specific rights over their work, including the right to make copies (reproduction), distribution, adaptation, as well as performance and display rights. Those rights can only be used by the author, or by another person or entity to whom rights are granted.
You cannot copyright an idea, but the unique expression of the idea belongs to you, in this case, a draft manuscript or finished book.
It is your copyright whether you add the © symbol or not.
The Berne Convention is an international agreement that protects copyright in different countries. Usually, copyright lasts for fifty to seventy years after the death of the author, depending on the work and the country it is published in.
You don’t have to register the work for copyright to be applied, but there may be benefits to doing so in certain countries. Look up ‘copyright registration + your country’ to find the appropriate service.
As an author, it’s important to understand copyright, as it gives your work value and is the basis of any publishing contracts you might consider.
The value of your copyright will also hopefully help you appreciate the need for permission and licensing to use other people’s copyrighted work.
Your book is not just one manuscript
If you own and control your copyright, you can then license your book in almost unlimited ways — for example, an audiobook in English, a paperback book in French sold in France and Belgium only, an audiobook in Arabic, or adaptation for a Netflix documentary.
Each of these examples require selective rights licensing within a contract, clearly specifying which format and language is being licensed as well as the length and terms of licensing, covered in chapter 1.9 on publishing options.
Don’t sign away all your rights. Consider how important and valuable your original work is.
If you see a clause that says something like “All rights for all formats, existing now and to be created, for the term of copyright,” stop and negotiate specific terms.
Quotations
Many non-fiction writers use short quotes from other books and media, as I do in many of my books, including this one. These usually come under the terms of ‘fair use,’ which permit limited use of copyrighted material with no need for permission for the purposes of commentary, criticism, education, or parody.
Whether a quote is fair use also depends on the length of the original work. You can quote a few lines from this book with attribution without my express permission, but you can’t copy and paste an entire chapter into your book or website to use verbatim, even with attribution.
Some written work is in the public domain, which means the copyright has expired — for example, Shakespeare’s plays. This means you can use the entire work if you want to.
But be careful, as translations of older works are often still in copyright. For example, the King James Version of the Bible, published in 1611, is in the public domain, but modern translations are still under copyright.
Song lyrics and poems
Songs and poems are shorter works, so even if you quote a single line or recognisable phrase, you might exceed the limited definition of fair use unless the song is in the public domain.
For this reason, it’s best to avoid lyrics and poems unless you have explicit written permission for use. This can take time and potentially be expensive. Song titles are not copyrighted, but lyrics are, so be careful.
For more detail and a sample permission letter, see How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer, by Helen Sedwick and Jessica M. Brown.
Citing sources
You should always cite your sources, whether that is a conversation or a website or podcast or book, or however else you came by the information. Don’t claim something is yours if you found it elsewhere.
The format for citations will depend on the type of book you’re writing and the format in which you’re publishing.
You can just refer to the person or source within the text, as I do in this book. Many mass market non-fiction books also include a bibliography or appendices with citations by chapter. In The Healthy Writer, we listed medical references used within the book in the appendix, and you can also use an index if desired.
Academic books use footnotes and specific citation layout as outlined in The Chicago Manual of Style and other style guides. But remember that these can be difficult for people reading on ebooks and audiobooks, so you might need to adapt your text by format.
You can also include a downloadable PDF for those listening on audio.
You can find the resources for this book at: www.TheCreativePenn.com/nonfictiondownload
You can find more help on citations in Research Like a Librarian: Research Help and Tips for Writers for Researching in the Digital Age by Vikki J. Carter.
Avoid plagiarism
Plagiarism is taking other people’s work and portraying it as your own, either by directly copying their words or by taking an expression of an idea and reproducing it in a very similar way.
This is just as relevant for online content as it is for published books. For example, copying and pasting other people’s blog posts into your site is plagiarism.
It’s not plagiarism to read other people’s books and quote them in your own (with attribution and according to the principles of fair use).
It’s also not plagiarism to write your own book on the same topic as someone else, even if you cover similar areas. There are lots of books on writing non-fiction, and I’ve read many of them, but you won’t find another exactly like this. It’s my original work, and my expression of the ideas around the topic.
I’ve also cited sources when referring to other people’s work, giving them credit and directing you to their books and resources. Most writers appreciate being quoted in this way, as it can be great for marketing.
Most writers would never plagiarise deliberately, but it is possible to plagiarise accidentally, especially if you copy and paste chunks of text during the research process. These blocks of text may find their way into your finished book unless you watch out for them and are careful in your writing process.
During your research phase, put exact quotes in quotation marks, and clearly attribute sources from the first time you encounter them.
Later, when editing your book, read it through aloud and note any parts that don’t sound like your voice. You should be able to spot them easily. If your whole book sounds stilted, then revisit chapter 1.5 on finding your voice and make sure the book sounds like you.
If anything doesn’t sound like you, rewrite it. You can also use a tool like ProWritingAid or Grammarly, which have plagiarism checkers.
Images
If you want to use photos, diagrams, cartoons, illustrations, or any other images that you don’t explicitly own within your book or on the cover, you need to make sure you have licensed the image for the specific purpose, or that it is in the public domain.
Even if you own a photograph, you may still need permission to use it if it was taken on private property. For example, I’m working on a book about English Gothic cathedrals and I have lots of photos from my visits. But although I can freely share these on social media, I need explicit permissions to use the photos in a commercial project like a book.
Most authors will use royalty-free images from sites like Bigstock Photo, iStock, or Shutterstock for their covers and some for interior usage. Some sites permit unlimited use, but some have limits — for example, 250,000 downloads. That might seem a lot, but if you use an image on the cover of a free ebook, you might hit that sooner than you think.
If you want to use a specific image, like a historical picture that fits with your book, then you can request permission to use it from the rights holder and agree on a fee.
For more detail and a sample permission letter, see How to Use Eye-Catching Images Without Paying a Fortune or a Lawyer by Helen Sedwick and Jessica Brown.
Writing about real people and avoiding getting sued
“If you’re doing it for therapy, go hire somebody to talk to. Your psychic health should matter more than your literary production. If you want revenge, hire a lawyer.”
—Mary Karr, The Art of Memoir
Many non-fiction authors, memoir writers in particular, are concerned about the impact on the real people they write about.
If you’re writing happy, positive things about people and places that are historically accurate, then you probably don’t need to worry.
If you’re writing about people who are alive and what you’re writing may damage their reputation or livelihood, embarrass them, or attract negative public attention, then you need to consider possible legal ramifications around the invasion of privacy or libel and defamation. These laws vary by country and jurisdiction, and the UK in particular has strict libel and defamation laws.
Even if there are no legal ramifications for what you’re writing, consider the impact your book might have on people you care about.
Write whatever you want in the first draft. Let it all out.
You can’t hurt anyone in a first draft, so write as if no one will ever see it. Password protect the file if you need to. Whatever it takes for you to feel safe while writing.
Then, when you’re ready and have some distance, edit the manuscript with fresh eyes, a clear perspective, and an awareness of legalities.
If you don’t have this new perspective when you edit — if you still have an axe to grind, or you’re seeking revenge, or you’re trying to hurt someone with your words — then put the manuscript aside, get therapy or whatever you need, and come back to it when you can focus on what serves the book and the reader.
In your editing process, consider cutting out, rewriting, or disguising anything that might be a problem. You could also consider using a pseudonym or perhaps even fictionalising events.
Please seek legal help if you need specific advice about your situation.
“When a writer needs to tackle injustice, corruption and other behaviours, it helps to understand libel law and the most common defences used in defamation cases. While most authors will never be sued, the onus is on you to ensure that you respect and protect other reputations, just as you would want your own to be protected.”
—The Alliance of Independent Authors, How to Avoid Libel and Defamation as an Author
Don’t let your concerns stop you from writing
This chapter is an overview of possible legal issues associated with writing non-fiction and memoir, but don’t let any concerns stop you from writing.
Write the book you want to write.
No one will see that first draft anyway, so you can do whatever you want with it.
Then review the draft with fresh eyes and consider whether you need to worry about anything.
Make changes if you need to, secure permissions to use material, or work with a lawyer to check the manuscript if you’re still worried.
I’ve written many non-fiction books and have never had any issues. However, I have been pragmatic and avoided the use of lyrics or other people’s images and illustrations, at least for now. Readers will not notice their absence, so if in doubt, leave them out.
Artificial intelligence (AI) and copyright
I’m writing this second edition in the early years of generative AI, when there are still open court cases in different countries over the training and use of Large Language Models (LLMs).
While some publishers and media companies have sued the companies creating these models, others are signing data licensing agreements, so there are pros and cons on both sides, and it remains a difficult area to navigate.
You don’t have to use generative AI tools. It’s completely your choice.
You can also use them for some things and not others.
In this book, I recommend using ChatGPT, Claude, and other tools for market research, comparison titles, publishing options, and more — but personally, I choose not to use the tools for writing first draft non-fiction material. (See chapter 2.5 for more on the topic.)
You are responsible for your use of generative AI tools. If you want to investigate further, each jurisdiction has their own legal cases and recommendations.
You can find further guidance and advice in “AI for Authors: Ethical & Practical Guidelines” from the Alliance of Independent Authors at:
selfpublishingadvice.org/ai-for-authors-guidelines
In the US, copyright is all about ‘human authorship,’ and in March 2023, the United States Copyright Office issued guidance around the definition of human authorship in an age of generative AI. They note:
A human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship.’
Importantly, they also say,
This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship.
For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording.
In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.
You can find the full text at
www.copyright.gov/ai/ai_policy_guidance.pdf
This guidance is why I happily use and recommend generative AI tools as part of my creative and business processes, but not for writing my non-fiction books or memoir, or for my articles and blog posts, podcast output, and videos.
The UK law is much clearer. Section 9(3) of the Copyright, Designs and Patents Act 1988 around authorship and ownership of copyright states:
In the case of a literary, dramatic, musical, or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.
The ‘arrangements’ in this case are the prompts and the direction of the generative AI tools.
Whatever the legalities of your jurisdiction, every site and application also has a terms of service that you agree to when you use the tool. These terms further specify usage and ownership of resulting assets.
Before you use any tool, read their terms and make sure you understand the ramifications.
As an example, one site I use is Midjourney.com, where I create images for many of my book covers and also for social media marketing and blog posts.
When I prompt Midjourney, I don’t use anyone else’s brand or name or intellectual property. For example, I would never use ‘Pixar’ or ‘Donald Duck’ in a prompt as that might mean I infringe on someone else’s IP.
But you don’t need to reference existing art or authors or voices or anything else.
The cover for my book Writing the Shadow started as an image in Midjourney with the prompt:
Vintage typewriter head on to camera, keys facing front, gold filigree, darkly decorated, colors of black and gold on white background, curls of shadow winding out of it.
I gave the resulting image to my cover designer, who used it as part of the final design.
The terms on the Midjourney site for the paid subscription say, “You own all Assets you create with the Services to the fullest extent possible under applicable law,” with some exceptions when using other people’s generated images, or for bigger companies.
I disclose the use of AI tools when publishing and there are sections to do so when you use sites like Amazon KDP, Kickstarter, and others. I am also completely open about my use on my website, in social media, and when speaking on this topic.
For more on my stance, check out The AI-Assisted Artisan Author, available on my podcast or website: www.TheCreativePenn.com/a4
Questions:
• Do you understand copyright and selective rights licensing?
• Are you using quotes, lyrics, or images that you don’t specifically own? Do you have the specific licenses or permissions to use them?
• Have you attributed quotes or ideas within your book? Have you cited your sources?
• How can you avoid plagiarism, both while researching and while writing?
• Are you writing about real people? Could there be any legal or personal ramifications of this? How can you protect yourself?
• If you choose to use generative AI tools, have you checked the terms of service? Where are the boundaries for your responsible use?
Resources:
• The Self-Publisher’s Legal Handbook — Helen Sedwick
• The Copyright Handbook: What Every Writer Needs to Know — Stephen Fishman
• How to Use Memorable Lyrics without Paying a Fortune or a Lawyer — Helen Sedwick and Jessica M. Brown
• How to Use Eye-Catching Images without Paying a Fortune or a Lawyer — Helen Sedwick and Jessica Brown
• The Chicago Manual of Style — University of Chicago Press
• Creative Law Center: www.CreativeLawCenter.com
• Interview with attorney Helen Sedwick, on copyright, publishing contract clauses, image use, and avoiding getting sued: www.TheCreativePenn.com/helen
• The Ultimate Guide to Copyright for Authors by the Alliance of Independent Authors — SelfPublishingAdvice.org/ultimate-guide-to-copyright-for-authors
• How to Research Your Book with Vikki Carter, The Author’s Librarian, The Creative Penn Podcast — www.TheCreativePenn.com/research
• How to Avoid Libel and Defamation as an Author, The Alliance of Independent Authors — SelfPublishingAdvice.org/how-to-avoid-libel-and-defamation-as-an-author/
• Research Like a Librarian: Research Help and Tips for Writers for Researching in the Digital Age — Vikki J. Carter
• Midjourney terms of service, accessed 31 October 2024 — docs.midjourney.com/docs/terms-of-service
• United States Copyright Office Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence — www.copyright.gov/ai/ai_policy_guidance.pdf
• The AI-Assisted Artisan Author by Joanna Penn — www.TheCreativePenn.com/a4
• “AI for Authors: Ethical & Practical Guidelines,” Alliance of Independent Authors — selfpublishingadvice.org/ai-for-authors-guidelines
• UK Copyright, Design and Patents Act 1988, Section 9, Authorship and ownership of copyright — https://www.legislation.gov.uk/ukpga/1988/48/section/9
