How long does a copyright last? For works originally created on or after January 1, 1978, copyright protection in the United States lasts for the author’s life plus 70 years. The term of copyright protection of a “work made for hire” is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. “Works for hire” are those created by an employee as part of their regular duties or created as a result of an express written agreement between the creator and the party commissioning the work.
Do I need a copyright notice? No—and yes. A copyright notice is not required to obtain protection, but it still serves an important purpose. The notice informs the public that your work is protected, identifies you, and shows the year of first publication. If your work is infringed, the infringer may not claim “innocent infringement” to limit the damages you claim. You don’t need permission from the Copyright Office to use the notice, but to be effective it must contain three elements:
The symbol © (the letter C in a circle), the word “Copyright,” or the abbreviation “Copr.”
The year of first publication
Your name, an abbreviation by which your name can be recognized, or a pseudonym
For example, an effective copyright notice might read: © 2020 Jane Doe.
When can I use the work of others? Despite claims of “fair use,” the answer is generally never—without permission. Many writers hold the mistaken belief that reproducing short excerpts of someone’s copyrighted work without their permission qualifies as fair use. But “fair use” has a very limited meaning as defined in Section 107 of the U.S. Copyright Act, and applies far less often than writers think. There is no rigid test, and courts will apply the very specific and narrow exceptions in the law on a case-by-case basis. Section 107 gives four factors to determine whether a specific use is to be considered a “fair use”:
The purpose and character of the use, including whether such use is of 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
The effect of the use upon the potential market for or value of the copyrighted work
Accordingly, fair use typically is a short excerpt used in connection with genuine criticism, news reporting, parody, or teaching.
Writers love to use song lyrics as part of setting a scene. Although novels are expressive works, the fair use analysis may not be as generous to that kind of use as it might be to, by way of example, a critical discussion of a lyricist’s use of meter in a song. Even a few lines of lyrics can comprise a significant percentage of a whole song—or a few lines of a poem can be a significant percentage of the whole—and so their use might not be “fair use” under the copyright law. Music companies aggressively protect their rights, and will quickly send a “cease and desist” letter to you and your publisher even if the use might qualify as fair use, which is why publishers generally disfavor even the inclusion of just a few lines.
You should also be cautious before using characters from other novels, movies, or plays to avoid having your work constitute a “derivative work” of a work belonging exclusively to another copyright owner. There are limited situations in which referential use to other works is acceptable, but it’s best to err on the side of safety and avoid it entirely.
What You Should Know about Defamation, Privacy, and Right of Publicity
Hundreds of thousands of books are published every year, and only a tiny percentage result in lawsuits. So relax. Novelists use real people in their writing all the time, either as characters or as models for fictitious characters. But when you write about real, live people, you may expose yourself to legal liability for defamation, breach of privacy, and publicity claims. This is because American law protects three types of “real persons”: living ordinary people; living public figures (celebrities); and, in some states, dead public figures (really).
Defamation. Defamation is written or spoken injury to a living person’s or an organization’s reputation (you can’t defame the dead). Libel is the written act of defamation, whereas slander is the spoken act. The injury—exposure to hatred, contempt, ridicule, or pecuniary loss—must directly affect the reputation of a living person or an organization. It must be “published,” revealed to someone other than the subject of the defamation.
In modern American law, truth is an absolute defense to defamation; a true statement cannot be defamatory. But what if it isn’t true, or is only partly true? A plaintiff in a defamatory lawsuit against a novelist must show that a “fictionalized” character was objectively identifiable as a real person, and that there was a defamatory statement of and concerning such person that the reader would impute to such real person. The inquiry would then be to assess whether the author was negligent in publishing such a statement (or, if it’s concerning a public figure, whether the defamatory statement was published with “actual malice”).
Right of privacy. Privacy law is a broad area and varies from state to state. In general, only public disclosure of private facts is relevant for novelists. This can occur when a writer discloses private and embarrassing facts about a living person that most people would find “highly offensive” and that are not of public concern. (First Amendment rights protect publication of items of legitimate public concern, such as the details of a crime.) So, what is “highly offensive”? A subjective standard, it is whatever a judge or jury decides is offensive. Typically, however, the disclosed information must be very private and very damaging.
Simply changing the name of a real person in your novel is no solution if the person can be identified by circumstances, appearance, or setting, but you can minimize your risks. Novelists should mask distinguishing characteristics and avoid retelling life stories too closely. The more villainous the character, the more the writer should change the characteristics.
To protect themselves, many publishers and writers use disclaimers, such as the standard “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.” But this disclaimer doesn’t provide any guarantee of protection. If a court finds that an author or publisher should have known the subject was identifiable, and private facts were revealed, the use of a disclaimer will be disregarded.
Right of publicity. Most states now have laws that protect living celebrities from commercial exploitation of their name, likeness, or persona, and some states do the same for recently dead celebrities, like Elvis Presley. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent that you portray celebrities in your novel for editorial purposes without defaming them or their family, you need not seek the celebrities’ permission. Books are generally considered editorial rather than commercial use. Such protections might not extend, however, to purely commercial “merchandise” of your work, such as T-shirts or posters that use a celebrity’s name to promote your book in a noneditorial context.
Liability for violating right of publicity in a novel is rare; it typically occurs only when an author uses someone’s name or image for advertising or promotional purposes. Beware of using a real person’s name or image on a book cover, in an advertisement, or in any way that implies an endorsement without that person’s express permission.
About the Editor
© TASHA ALEXANDER
LEE CHILD is one of the world’s leading thriller writers. He was born in Coventry, raised in Birmingham, and now lives in New York. It is said one of his novels featuring his hero Jack Reacher is sold somewhere in the world every nine seconds. His books consistently achieve the number one slot on bestseller lists around the world and have sold more than one hundred million copies. He is the recipient of many awards, most recently Author of the Year at the 2019 British Book Awards. He was appointed CBE in the 2019 Queen’s Birthday Honours.
LAURIE R. KING is the bestselling author of tw
enty-nine novels and other works, including the Mary Russell–Sherlock Holmes series. She has won the Edgar and Agatha Awards, a Creasey Dagger, the Nero Award, and Romantic Times’s Career Achievement Award, and has been named guest of honor at several crime conventions. She lives in Northern California.
SimonandSchuster.com
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About the Contributors
Beth Amos is a recently retired emergency room nurse in Wisconsin. In contrast to her nursing career, where she worked toward saving lives, her writing career involves coming up with clever ways to kill people.
Beth has twenty-five published novels, including the Mattie Winston Mystery series and the Helping Hands Mystery series (written as Annelise Ryan), and the Mack’s Bar Mystery series (written as Allyson K. Abbott), all with Kensington Books.
Beth is a USA Today bestselling author, the recipient of the 2017 Wisconsin Library Association’s Notable Author Award, and a member of Mystery Writers of America.
Kelley Armstrong believes experience is the best teacher, though she’s been told this shouldn’t apply to writing her murder scenes. To craft her books, she has studied aikido, archery, and fencing. She sucks at all of them. She has also crawled through very shallow cave systems and climbed half a mountain before chickening out. She is, however, an expert coffee drinker and a true connoisseur of chocolate chip cookies. Visit her online at www.KelleyArmstrong.com.
Frankie Y. Bailey is a professor in the School of Criminal Justice, University at Albany (SUNY). She specializes in mass media/popular culture, and crime history. Her nonfiction books include African American Mystery Writers. Frankie’s mystery novels feature southern crime historian Lizzie Stuart, and Albany, New York, police detective Hannah McCabe. Her short stories have been published in EQMM and in several anthologies. She is working on her sixth Lizzie Stuart novel. She is also working on a historical thriller set in 1939. Frankie is a past executive vice president of Mystery Writers of America and a past president of Sisters in Crime National.
Linwood Barclay is the author of more than twenty novels, including No Time for Goodbye, A Noise Downstairs, and Elevator Pitch. His novel The Accident was made into a TV series in France, and he wrote the screenplay for the film Never Saw It Coming, based on his novel. He lives in Toronto with his wife, Neetha.
Stephanie Kay Bendel has been a member of Mystery Writers of America since 1973. She is the author of Making Crime Pay, a textbook on mystery and suspense writing; A Scream Away (as Andrea Harris), a romantic thriller; and Exit the Labyrinth, a memoir, as well as numerous short stories and articles on writing. She has taught writing classes for college and adult education students and run several writing workshops since 1989.
She lives in Westminster, Colorado, with her husband, Bill.
Dale W. Berry has been creating independent comics professionally since 1986. A San Francisco–based writer and illustrator, his graphic short stories have appeared in Alfred Hitchcock’s Mystery Magazine (the first comics creator to do so), and he is the author of five books in the Tales of the Moonlight Cutter graphic novel series. In 2019, The Be-Bop Barbarians, in collaboration with writer Gary Phillips, was published by Pegasus Books to much critical acclaim. Dale’s life has also included stints as a carnival barker, concert stagehand, rock radio DJ, and fencing instructor. For more info visit: http://www.myriadpubs.com.
Mysti Berry has an MFA in writing from the University of San Francisco but never lets that get in the way of a good story. She lives in a forgotten corner of San Francisco with graphic novelist husband Dale W. Berry. Her short stories have appeared in EQMM, Alfred Hitchcock’s Mystery Magazine, and a variety of anthologies, and she is the editor of Low Down Dirty Vote (two volumes), charity crime-fiction anthologies.
Hal Bodner is a multiple Bram Stoker Award–nominated author whose freshman vampire novel, Bite Club, made him one of the top-selling LGBT authors in the country. The royalties continue to keep him in “cigarettes and nylons”—even though he quit smoking and never did drag. He subsequently authored several paranormal romances, which, to his agent’s chagrin, he refers to as “supernatural smut.” He is currently working on a series of comic thrillers that paints classic noir fiction with a lavender glaze. Hal is married to a wonderful man, half his age, who never knew that Liza Minnelli was Judy Garland’s daughter.
Allison Brennan is a New York Times and USA Today bestselling author of more than three dozen books and numerous short stories, including the Lucy Kincaid series and the new Quinn & Costa thrillers. She lives in Arizona with her family and assorted pets. For more information, visit allisonbrennan.com.
Leslie Budewitz blends her passion for food, great mysteries, and the Northwest in two cozy mystery series, the Spice Shop mysteries set in Seattle’s Pike Place Market and the Food Lovers’ Village mysteries set in northwest Montana, where she lives. She’ll make her suspense debut with Bitterroot Lake, written as Alicia Beckman, in April 2021. A three-time Agatha Award winner (2011, Best Nonfiction; 2013, Best First Novel; 2018, Best Short Story), she is a past president of Sisters in Crime and a current board member of Mystery Writers of America.
Carole Buggé (C. E. Lawrence, Carole Lawrence, Elizabeth Blake) has too many pen names. She is the author of fourteen published novels, award-winning plays, musicals, poetry, and short fiction. Her most recent novel is the third Ian Hamilton historical thriller, Edinburgh Midnight, under the pen name Carole Lawrence. Also recent is Pride, Prejudice and Poison, under the pen name Elizabeth Blake. Her Silent series (Silent Screams and its sequels) follows NYPD profiler Lee Campbell in his pursuit of serial killers. Her plays and musicals have been performed internationally, including an original Sherlock Holmes musical. Her most recent musical is Murder on Bond Street, based on a true story. In another life, she was a professional actor, singer, and improvisational comedian. A self-described science geek, she likes to hunt wild mushrooms. Visit her website: CELawrence.com.
Suzanne Chazin is the author of two thriller series. Her first stars Georgia Skeehan. a scrappy firefighter turned fire marshal investigating arsons in the macho world of the FDNY. Her second stars Jimmy Vega, a Bronx-born Puerto Rican cop navigating the new suburban melting pot and his own complicated place in it. Find her at www.suzannechazin.com.
Oline H. Cogdill reviews mystery fiction for Publishers Weekly, Shelf Awareness, Associated Press, Mystery Scene magazine, and the Sun Sentinel in Fort Lauderdale/Tribune Publishing Wire. She also blogs regularly at mysteryscenemag.com. She has received the 2013 Raven Award from Mystery Writers of America, the 1999 Ellen Nehr Award by the American Crime Writers League, and the 1997 Sun Sentinel’s Fred Pettijohn Award. Oline is a judge for the 2020 and 2021 Los Angeles Times Book Prize in the mystery/thriller category.
Nancy J. Cohen writes the Bad Hair Day Mysteries featuring South Florida hairstylist Marla Vail. Her series has won numerous awards, along with A Bad Hair Day Cookbook and her instructional guide, Writing the Cozy Mystery. Active in the writing community, Nancy is a past president of Florida Romance Writers and Mystery Writers of America, Florida Chapter. When not busy writing, she enjoys cooking, fine dining, cruising, and visiting Walt Disney World. Visit her at NancyJCohen.com.
Max Allan Collins is an MWA Grand Master. He is the author of the Shamus Award–winning Nathan Heller historical thrillers (Do No Harm) and the graphic novel Road to Perdition, basis of the Academy Award–winning
film. His innovative seventies series, Quarry, revived by Hard Case Crime (Killing Quarry), became a Cinemax TV series. He has completed thirteen posthumous Mickey Spillane novels (Masquerade for Murder) and is the coauthor (with his wife, Barbara Collins) of the Trash ’n’ Treasures mystery series (Antiques Carry On).
New York Times best-selling author Deborah Crombie is a native Texan who writes crime novels set in the United Kingdom. Her Superintendent Duncan Kincaid and Inspector Gemma James series has received numerous awards, including Edgar, Macavity, and Agatha nominations, and is published in more than a dozen countries to international acclaim.
Crombie lives in North Texas with her husband, German shepherds, and cats, and divides her time between Texas and Great Britain. Her latest novel, A Bitter Feast, is available from William Morrow. She is currently working on her nineteenth Kincaid-James novel.
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