How to Legally Protect Your Book with Olivia Maynes
EPISODE NINETY
If legal stuff makes your head spin, you’re not alone.
But here’s the truth: understanding a few key legal basics can save you major headaches later (and possibly even your bank account).
That’s why I asked intellectual property and business attorney Olivia Mayness, to join me on Book Marketing Simplified. Olivia breaks it all down in a way that’s clear, smart, and actually doable. Olivia’s not just a legal expert, she’s also a creative herself, which means she gets what authors need.
We talk about the most common legal blind spots authors face like:
if authors can use lyrics or quotes in their books
how to protect your book from AI
if authors should trademark a book title
and much more.
Whether you're self-published, traditionally published, or somewhere in between, this episode will help you move forward with clarity and avoid some scary mistakes down the road.
Links
Connect with Olivia on LinkedIn
Check out her law firm’s website and blog at thelawspot.com
Transcript
Jenn Hanson-dePaula: Publishing a book is exciting, but in the rush to get it out into the world, many authors skip over one of the most important pieces of the puzzle, protecting their work. From copyright confusion to AI concerns, the legal landscape for authors has never been more complex or more essential to understand. If you've ever felt overwhelmed by the words trademark, fair use, or IP infringement, you are definitely not alone.
In today's episode of Bookmarking Simplified, we're sitting down with someone who can make sense of it all. Olivia Maness is the kind of attorney that every author wishes that they had on speed dial. She's an intellectual property and business lawyer who doesn't just know the legal jargon, she lives the creative life too. With a background managing global trademark portfolios and co-owning multiple businesses, Olivia brings both real-world insight and strategy to the table.
She is passionate about helping authors and artists protect their work, avoid legal landmines, and build sustainable careers on solid ground. Oh, and when she's not advising clients, she's probably writing fiction or running with an audiobook in her ears. In this conversation, we're covering what authors actually need to know about intellectual property contracts and the current AI landscape. What you're about to hear should not be taken as legal advice.
If you've ever wondered what's legally smart, what's a total myth, and what you really need to know to protect your work, this episode is for you, so let's get into it.
Jenn: Olivia, thank you so much for joining us. I know that your immense wisdom is going to greatly benefit the author community. I thought we could just start off with a very simple and practical question. What is considered intellectual property, and why should authors be aware of this, and why should they need to be aware of this?
Olivia Maynes: Thanks Jenn. This is such a great question to start with, and honestly, one that I get all the time. Intellectual property and IP gets thrown around a lot, so it's a great place to start and anchor in on what that actually is. I want to frame our discussion from a business perspective, because as an author, you're a business owner, so if you want to sell books, you have to talk business. In business terms, intellectual property or IP is your brand, your product or service and the way you go about running your business.
In intellectual property terms, this specifically means trademarks, copyrights, and contracts. Trademarks, and start with that. These are distinctive words, symbols, or phrases. They identify the source of a particular good or service. Using the trademark Penguin Random House for publishing. We have to use that in connection with specific goods and services. If you're like, I want to use the word Penguin, but I want to use it for clothing, you could probably still use it, because you're using it for different goods and services.
Jenn: If someone wants to do something that's in a similar vein, it just can't be named exactly the same as another series or something like that.
Olivia: Yes, exactly. That's why you will find that there's a lot of book titles that are similar, but series titles are probably not going to be the same, because that's a trademark issue.
Jenn: Got you.
Olivia: With your trademark, you get the right to use the trademark in connection with specific goods and services, so you have that exclusive right. Copyrights are for the expression of ideas. Something that is a misconception is that a copyright is to protect ideas, but that's not actually the case. You cannot protect an idea itself with a copyright. For example, I come up with the idea to write a book on a Faye Princess and a shadow daddy. Well, I can't just copyright that. I have to actually put it into a manuscript in a book form for that to be protectable and to have an intellectual property right in that expression of the idea.
Jenn: Have authors done that, because with the example that you gave, there are a lot of books that mirror that. Is it that fine line of like, okay, it's similar.
Olivia: Yes. The legal term is, there has to be a modicum of creativity required to get that copyright protection. Then, as far as assessing the similarity, there has to be a substantial similarity. Basically, everything in the IP world is a subjective standard, so it's going to be assessed case-by-case.
Jenn: I've seen some authors on TikTok or Instagram say, this was my idea, and this other author is stealing it. That's just a matter of opinion, correct. It's not like they're actually stealing it. How do they ride that line?
Olivia: I would say, do the parties know each other? Have they had a discussion where they said, "Oh, I'm going to write this book about using the same example about this shadow daddy and a faye princess, and it has blah blah blah, it's an academy book, whatever. Then their friend is like, "Oh, me too," and then they go and write it. It depends on how much of the work is used. Like I said, it's a subjective standard, but the closer the ideas align, the more likely that there's going to be a potential issue if you're claiming infringement. That would be what you'd have to, if the author A who wrote the thing first or whatever is like, "Oh, no, that was my idea," or maybe they haven't even written it. If they've not written it yet, then they have zero recourse, actually. [laughs]
If they do know each other and they have had a conversation, one thing that author A probably should have done was get an NDA. If they're going to share their information in a way that they're talking about it, they're talking about all of the plot, they're sharing, I don't know, maps of the fantasy world or whatever, it's not a bad idea to do that just to be protected.
That can be something as simple as, "Hey, I'm going to share this with you. If you're not going to go through it, do you agree to keep this confidential and not share it with anybody else, and not use my ideas for something else?" Then you have a contract and they're agreeing not to do that.
Jenn: Wow. Okay. We have trademarks, we have copyright. Is there anything else within intellectual property that we should discuss?
Olivia: Yes. Contracts. This is a broad area, but that can include co-writing agreements, NDAs, collaboration agreements, publishing agreements, licensing agreements. These are the things that protect your business and allow you to monetize it. For example, if you're going to hire someone to do your cover art or someone to do fan art, commission fan art for your book, you want to make sure that you establish in writing who has the rights to that and how they're going to be compensated.
Is it going to be royalties? Is it upfront payment? Just so that it's really clear in that when you do want to file a copyright to further exploit your intellectual property, then you have the wherewithal to do that in a way that's not going to cause legal conflict down the road.
Jenn: I see a lot of agents and traditionally published authors, they seem to have a little bit more guidance through the publisher and through an agent with all of this. If there's a self-published author, it's a lot to juggle. How would you advise, or what are some things that baseline of coverage that a self-published author would need to have with all of this?
Olivia: I want to use an example that I heard the other day. I heard a published author basically saying, "Hey, look, you don't really need to do a ton of IP protection. It's not really necessary unless your stuff gets infringed." I would say as a self-published author, you don't have anyone, and this applies to everyone, but considering things like artificial intelligence, that's becoming a major issue for authors, and just the ability to take people's stuff, upload it wherever, you definitely want to have a copyright registration for your manuscript at a bare minimum.
I would say that is the bare bare bare minimum, is you need to get a copyright registration because without one, you cannot go after infringing parties and you can't enforce your rights, essentially. One thing to know is that you want to make sure that you're doing that within three months of publication so that you maintain the right to statutory damages. That's the legalese, but [chuckles] what that means is that if someone steals your manuscript, uses it, publishes it in a way that don't have your permission, you want to go after them, you have the registration.
If you don't register it in time, you can only get what are called actual damages, and that's really hard to prove. Those are things that are, how much are you really out from this infringing party's actions? Where statutory damages are set amounts of monetary value up to $150,000 for willful infringement per infringement. If you miss that window, then you're just left with the statutory damages, which honestly might not even cover your attorney's fees. [laughs]
Jenn: I've had some authors who are getting ready to submit to even agents. They haven't gotten a deal yet. Should they have that copyright at that time, before they even send it to agents, even though the manuscript might change once they do get the deal? How do they figure out that timing with that as well?
Olivia: When you're sending it out to the publishers, they have a duty to not use that in bad faith, and it's like a contract gets formed. When you send it out and say, "Hey, can you review this?" They're held to a certain standard of "What did they do with that material?" You obviously are telling them by accepting this, you're not going to sell it to third parties or whatever. There's an industry standard there. I would say typically, you don't necessarily want to go and get the copyright registration for your unfinished manuscript.
I think publishers also don't want to do that. They want to do that when it's a finished product, because it's probably going to change quite a bit. I would say generally you don't necessarily need to do that, but you're always welcome to just make a note just to say, "Hey, just to be clear, you can use it for this purpose only. I'm giving you a license basically to use it for this purpose, and what you're getting when you do that?"
Jenn: I know that there are a lot of fears that authors have just because they don't know the process. They might be brand new, and so I know that even posting anything about their book, they're fearful for someone "stealing their idea" or anything that they came up with. It is that fine line of, you have to talk about your book in order to begin that marketing process, but also protecting that idea or whatever. I think even just hearing you say that is a relief.
Olivia: When I have these questions like, why is the law this way? Why does it not protect the authors better? To be honest, the reason that we have intellectual property law is not to protect the artists or the authors at all. The reason that we have trademark law is to protect consumers from buying something that doesn't have the quality that we expect from the trademark owner. The reason we have copyright law is to promote creativity. [chuckles] Certainly, there's a bit of a gap in between the authors that are like, "Oh, what about me?" They're left in the dark a little bit, and it is your responsibility as a business owner and as an author, IP owner, to police your intellectual property. The burden does fall on you.
Jenn: How can authors police that?
Olivia: One way within the trademark realm is to do clearance searches before you start filing for a trademark. This is for authors that are going to publish books, but this is also for authors that want to do things like offer courses for publishing. They want to do educational things. They want to offer merchandise or fan art, home goods, third-party products, things that go in connection with their brand. The clearance search is going to let you know, "Hey, who else is using this kind of thing in the same realm?" You can have a red light or a green light and assess what's good for business purposes.
You don't want to start an uphill battle with your trademark filing and already have to be up against prior users. You can limit out prior users. Thereafter, if you do have a trademark registration for your specific goods and services that you're offering, you can put in place what's called a watch notice. There are great services out there. You can do this through an attorney, whoever registers your trademark, if you do that, but they can go and they'll get hits and notices if anyone registers something similar, or if any third-party posts something similar online.
For example, I have a lot of fashion clients, there's tons of dupe sites that spring up. What happens is I'll get a hit basically that says, "Hey, this dupe site here, you can review it." Take it down if I see there's a matching images. Things like that, and that can get taken down. If an author has the rights to fan art and they see it springing up in people's Instagram content and they don't want them to use that, things like that, then you can go and do a take-down. That's on the trademark side.
Copyrights, you can also do something similar. I'm pretty sure, I know people have big feelings about using AI in all the realms, but it can be helpful. I think Google Gemini, you can use it to circle a picture and then it will go and look on the internet to see if there's anything matching it out there, and then you can see, "Ooh, someone is posting this on a deep site or whatever."
Jenn: Got you. Ooh. I think that that's something too, that many authors, even over the past year or two, they've gotten notices that their eBook has been ripped from Amazon and uploaded to a free download site, or that they can just download the PDF. Within things and situations like that, is there anything that authors can do to protect themselves or to protect their books?
Olivia: Yes, I think the Authors Guild in general has a lot of great resources, and you've probably talked about them before. I think with regard to the specific topic, there's a couple good articles that I refer people to. Prior to getting a hit, prior to getting an infringement, you can put something in your manuscript that specifically says, "No AI scraping. Anyone reading this or using this doesn't have permission to do that. You don't have permission to upload it." You can be as explicit or as simple as you want, broad there, but that's something that will at least give you recourse. If you have your registration, then you can at least file for a civil case if you need to.
Also, you can do what's called internet takedown. You basically find out who's hosting the dupe site or hosting the infringing party's work, and then you send them a Digital Millennium Copyright notice, a DMCA notice saying, "Hey, this site is using my intellectual property." The host has the legal requirement to take it down. Otherwise, they themselves could be liable. They'll get that removed or scrubbed from that site.
Jenn: Got you. I echo you with, I've had so many authors who have been saved by the Authors Guild. It's a huge, huge resource. Yes, absolutely. Within some of those legal and practical things that authors can do to protect themselves from AI, I know that there's a huge-- I don't even know if a lawsuit has come about yet, or just a lot of talk around Facebook or Meta downloading a bunch-- Does it still land within that adding just some text to the manuscript, is that enough for people to protect themselves on some of these sites that are scraping? Also, to tag onto that, is there legal action or legal protections that are in the works for authors? What is there that is available even now?
Olivia: Yes, great question. First, just want to say this is a wild, wild west situation with AI right now. Kind of on all sides is a bit of a battle for control. There's no established industry standards. Politically, there are still not, in the United States, there's still not a federal AI regulation. That was not included in some recent legislation that's been passed, and so now it's still left up to the states to regulate that as they will. That's something to consider, especially for us authors that we have an interstate business. We sell our books all across the United States or all across the world, so that is a consideration for us.
I know, for example, both the Copyright Office and the USPTO have come out this year with commitments to make changes, use AI appropriately, things like that. That's one side of the policy side of things that's in the works. There are cases, like I think June 27th, a decision just came out on the Meta case in part, and this was in response to a motion for summary judgment, I think, and it wasn't the full trial yet. One of the issues is going to move forward to trial. Basically, the situation there, for anyone that doesn't know, is that Meta was using authors' manuscripts to train its AI.
They were uploading digital versions and scanning hard copy versions of books. What happened was the court-- This is probably going to get appealed, but the court's decision was that actually that was fair use and that was allowed. This is a big blow potentially for authors right now. Just FYI, for anyone that doesn't know what fair use is, fair use is how you evaluate how much of a copyright-protected work you can use without permission. Basically, what the court said, one of the considerations is how much is used, the type of work, and the commercial impact on the market.
All of those things are majorly implicated here, and the issue that some of the experts have had big feelings about, the Writers Guild also has big feelings about this, is that yes, these authors are now without the monetary compensation that they're owed from this use of their manuscripts to train the AI. We're going to see that get litigated. This is just the beginning, in my opinion.
Jenn: Yes. I know the tech is so far down the road, and we're still trying to keep up, or even catch up how to legally protect ourselves and all of those things. It feels insurmountable.
Olivia: Right.
Jenn: It just feels like this.
Olivia: One thing I think authors can remember, especially for women authors who maybe aren't always as ready and willing to advocate for themselves, is that you always have the power to negotiate. You have your intellectual property rights until you give them away. If you're talking to a publisher, if you're in the traditional publishing realm, and that's your goal, AI training rights are considered a subsidiary right to the rights to use your membership. Other subsidiary rights are things like translations or rights for film and TV, rights to make similar merchandise, whatever that looks like.
AI training rights can be used to create monetary value for the author by licensing or giving the AI generation bot, whatever, the ability to use that material. There's no industry standards. I've talked to agents about this and heard agents talking about it. Everyone's fighting for AI training rights, and so this is a good time for authors to stand up for themselves and say, "Hey, this is what I want. I don't want AI training rights." You can be as inflexible or flexible on that as you want, and that can also be a good gauge for whether this is the company or publisher that you want to work with.
Jenn: I think that that is such an important thing to consider because so many authors think, "Okay, if I get this deal, this might be the only deal I get, so I'm just going to settle." When that's so not the case. [laughs] Just making sure that you're getting everything covered. Absolutely, that's fantastic advice. I receive a lot of what might be considered smaller topic questions in my DMs, and I would love to just do a little rapid fire on some of these questions that I get quite a bit. Can I use a quote from another author in my novel?
Olivia: Great question. Again, everything is going to be analyzed on a subjective standard, and that applies to these questions as well. I would say it depends. A great way for authors to analyze this themselves is to know the fair use standards and parse it out, and how much are you using, what's the purpose and character of your use? Is the book rooted around this quote? Then you probably need permission. If it's just like a little quote and it's not a big deal to the book, the book's not being marketed around this quote, not as much of a deal. I would always say, when in doubt, you need to get permission.
Jenn: Good.
Olivia: Just as a little general fair use, typical standards where you're like, "Okay, probably okay as if it's for reporting research or education." If you're doing more of the nonfiction and it's for one of those purposes, the risk is lower, but again, consider the commercial impact.
Jenn: Great. Can I use a song lyric in my book?
Olivia: Same analysis, I get this one all the time as well. [laughs] My answer is the same. Generally, you want to get permission. Two things to think about. Is there a Creative Commons license attached to this song? Those are six different types of licenses that people give out, and they basically say, "Hey, I'm fine if you use this song, here's the parameters in which you can use it." There's no monetary compensation or permission required except here's how you can use it. That's one thing to look for the song.
Another thing you can do is, instead of using the actual lyrics, talk around them. Song titles themselves are not copyright-protectable. You can use the song title and then allude to the lyrics or talk about them without actually quoting them, because songs are typically shorter, and that's the IP [laughs] right there.
Jenn: If someone were referring to Taylor Swift and using a song lyric, because I know a lot of authors they do like to weave in Taylor Swift lyrics.
Olivia: Oh, for sure, yes.
Jenn: Of course. I know they're afraid of being sued ultimately, but if they're giving them credit for it, like saying in this Taylor Swift song, blah, blah, blah, is that okay when they're giving credit for that?
Olivia: Yes. Generally, attribution is never permission.
Jenn: Oh, okay.
Olivia: That's just something to note. I would say something to think about is also the way in which Taylor Swift is also being talked about. Is it in a negative way? Are we slamming her? We have First Amendment, we can talk, right?
Jenn: Yes.
Olivia: What are we doing? How are we portraying that song? How are we portraying her? Is this an issue that if she read it, she would want to come after you?
Jenn: Got you.
Olivia: Is the consideration you can make? It's tricky. Generally, I'll still just say err on the side of caution and try to get permission if you need it.
Jenn: Good advice. Can and should I trademark my book title?
Olivia: Good question. I get this one all the time, too. You can't ever trademark just a book title. You can only trademark the series. In order to get a trademark for your series, you need to have at least two books that are published. One thing you can do, if you're like, "Ooh, I know I'm going to write a series, I know I'm going to get book two out within the next couple of years, you can file what's called an intent to use trademark. You know what the series is going to be called. You want to put that first book out, you don't want anyone else to use it.
You file for the book series title, and then once book two is out, then you can get that mark registered. It basically puts everyone on notice that you intend to use this as your series and so people can't file a similar trademark without being blocked.
Jenn: Perfect. All right. If I email myself my manuscript is that copyright protection?
Olivia: Yes. Copyright protection is gifted. [laughs] As soon as the legal term it's fixed in a tangible medium of expression. Fixed, you can think about it this way. If you're rearranging things on a bookshelf, it's not fixed, but if you take a photograph of your bookshelf, it's fixed. If you have a manuscript and it's in a form, you can download it and send it to yourself, yes, then you have copyright protection, and you don't have to have a registration to get copyright or trademark protection. That works, but as soon as it's able to be downloaded or you can't download it, that's when you have that copyright protection.
Jenn: Okay, great. I've heard, maybe this was years ago. Where they mailed themselves a copy of their manuscript, like it's printed out they--
Olivia: It's called the before man's copyright. [laughter]
Jenn: Yes. That's right.
Olivia: I think people will do that just to have proof that they had put it out. That was their publication, if you will.
Jenn: Great. The last question, can I share a Spotify playlist inspired by my book?
Olivia: I think, again, fair use is going to apply here. Song titles aren't copyright protected, so by virtue of posting song titles or saying my book's inspired by these songs. You're probably okay. It depends on how you're going to be sharing it. It's just going to be that fair use analysis of what's your commercial intent. Is this just like, "Hey, listen to this as you're reading." Generally, that's probably okay unless you're doing it for like a major monetary purpose or you're using maybe a little bit too much of the song lyrics, things like that.
Jenn: Got you. With all of these different options, all of these different copyright issues. What is it that authors should pursue, and what should we just not ignore but make our focus?
Olivia: Great question. This depends on what your business strategy is and how you're going to expand your business. What does your business focus on? For authors that are just kind of starting out, they're just still trying to get their name out there, I would consider copywriting things like, well, obviously, your manuscript, like we talked about. You could do things like copyright your website, you can file a copyright to protect an Instagram page. It's just the things that you feel like are the core of your brand and your property that you would be angry if someone infringed on.
Then, for authors that are a little bit more established, you're ready to do some expansion. We call this exploitation in the IP world, but it's a good thing when you're ready to exploit your business and make more money, you can protect copyright designs. If you have like a particular fan art that you're going to put on t-shirts, that's what you're going to want to focus on. Is the things that you care about and would be mad if someone else used.
Jenn: Great. There's so much to consider, and there's so much to really juggle and think about. I know that you offer a lot of really great workshops and other resources. What are some of the upcoming workshops that authors can tune into, because you are a wealth of information that everybody needs to be following?
Olivia: Oh, thanks. That's so nice. Things that I have in the works for the rest of the year, I'm doing one on PR and intellectual property, and that's probably in the fall. Then, towards the end of the year, I'm going to do one on intellectual property considerations for international authors. Because I think that's generally copyright and trademark IP stuff. The framework is very similar, but there are considerations if you're in another country publication. Just as a quick example, if you publish in another country, that affects your rights in the United States.
Jenn: Absolutely. Well, we'll have all of your information and links where people can find you. Are you mostly on Instagram, or where are you hanging out?
Olivia: Yes, Instagram. Instagram and LinkedIn. I try to do that for the professional side, not everyone loves LinkedIn, and that's okay. I do post quite a few blog post-type things there. I try to also include those on my Instagram. Instagram is a great way to get a hold of me. I'm pretty responsive to messages there. That's a quick way to just ask a couple of questions, and I'm always happy to chat.
Jenn: Great. Well, thank you so much. I know that this was just kind of a quick deep dive, but please follow Olivia. She has so much great information, and we thank you so much for sharing some of that with us today.
Olivia: Thank you, Jenn. Thank you so much for having me. This has been so fun.