In the latest episode of the Creating Better Books podcast, ALLi Content and Communications Manager Howard Lovy interviews Kathryn Goldman of the Creative Law Center, a seasoned intellectual property attorney dedicated to supporting independent creatives. Kathryn shares her expertise on how authors can protect themselves legally, from handling defamation risks in memoirs to understanding the rights around using real people in fiction. Kathryn also tackles the nuances of copyright issues in the age of AI and the essential legal knowledge every self-publisher needs to safeguard their work.
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Listen to the Podcast: Kathryn Goldman, Creative Law Center
On the Creating Better Books podcast, @howard_lovy interviews @KathrynGoldman of the Creative Law Center, an intellectual property attorney dedicated to supporting indie authors. Share on XDon't Miss an #AskALLi Broadcast
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About the Host
Howard Lovy has been a journalist for more than 35 years, and now amplifies the voices of independent author-publishers and works with authors as a developmental editor. Find Howard at howardlovy.com, LinkedIn, and X.
Read the Transcripts to the Podcast: Kathryn Goldman, Creative Law Center
Howard Lovy: Today, my guest is Kathryn Goldman of the Creative Law Center, which helps creative professionals and entrepreneurs protect their work so they can profit from it.
Hello, Kathryn, and thank you for appearing on the show.
Kathryn Goldman: Hi Howard, thank you for inviting me.
Howard Lovy: Before we go into what Creative Law Center does, can you go into your backstory for us and tell me where you grew up and how you ended up specializing in intellectual property law?
Kathryn Goldman: Sure. So, I am an intellectual property attorney, copyright and trademark, and also the attendant of business law that comes with it. I am born and raised and living in Baltimore, Maryland. I've been an attorney for, oh goodness, 35/6/7 years now.
Howard Lovy: But who's counting?
Kathryn Goldman: I know, I had to do the math in my head while I was speaking.
I started my legal career in litigation, various kinds of litigation, a variety of business disputes, moved into intellectual property litigation, and then eventually moved out of litigation.
Now, I do counseling and transactional work for my clients. So, what I do is I help independent creatives get the legal support that they need if they were working with one of those big five publishers that would provide them with a lot of support. So, I step in and do that for self-published authors now, and that runs the gamut of topics.
Howard Lovy: So, what role do you play at the Alliance of Independent Authors and how did you get involved with us?
Kathryn Goldman: I was introduced to the Alliance of Independent Authors through Joanna Penn. I've been a guest on her podcast a number of times going back, I don't know, seven years or something. So, she introduced me. Then I was invited to be or a partner by Orna. I've done a number of talks and I've prepared materials that I believe are still available on your website in relation to contracts, how to read a contract, how to understand some of the finer points of a contract, and how to protect your rights once you're in contract negotiations.
I've done some podcasting with ALLi. I have done some courses or lectures, and I have done some written materials as well.
Howard Lovy: Now, you're based in the U.S., but ALLi is global. Do you need to stay abreast of various laws in other countries?
Kathryn Goldman: I am a U.S. attorney, correct. My area of focus is U.S. government. Copyright law, contract law, also based in the U.S. When I have a specific question that applies to law of another jurisdiction, I have to research that particular area of law. So, my body of experience is not in international law, not in the law of the UK or the EU or Canada, but when I have clients who come from those jurisdictions, I'm able to research the particular question at issue. So, I don't have a broad base of experience in international copyright or contract law, but I'm able to research it sufficiently to answer that question, but my area of expertise is U.S. copyright law.
Howard Lovy: This might be too general a question, but what are some of the most common legal issues that independent authors face, and how can they avoid them?
Kathryn Goldman: I work with authors who are writing both fiction and non-fiction. In the non-fiction area, I work with a lot of memoirists. The big issues for memoirists are, how can they protect themselves from liability when they write things about other people that aren't particularly nice?
The fact of the matter is a memoir is not going to be interesting if it's all roses and happy stories.
Memoirs generally include difficult truths, and when writers have to write those truths that involve other people, they want to avoid liability or claims against them for defamation, for invasion of privacy; those kinds of claims that people who read the work become upset about.
So, I work with memoirists a lot to sort through those issues to try and mitigate the risk.
Howard Lovy: That's a question I get a lot, too, as a book editor. I edit a lot of memoirs, and I get that question. What general answers do you give to questions like that?
Kathryn Goldman: The best answer, one of the most common answers, depending, of course, on the story and depending on the context, is to try and couch your story in the form of opinion, because defamation is a statement of fact. If you're saying that, in my view, this behaviour was X, Y, Z. That's an opinion, and an opinion is less likely to be a basis for a claim for defamation.
I do monthly workshops in the Creative Law Center, and I did a workshop specifically for mitigating the risks when writing a memoir, and that workshop replay is available on my website, shameless plug, but it's a very useful workshop and it covers all of these areas and it's a nice way to get an introduction to what the risks might be if you're writing a memoir.
In the fiction department, I get a lot of questions about using famous people or real people in their stories. So, that also has to do with defamation possibilities, defamation risk, invasion of privacy, or violation of a famous person's right of publicity. So, we talk about those issues a lot.
So, those are the two top areas, I would say, that I work with writers to help clear their manuscript before they publish.
Howard Lovy: Interesting. Now, does that only deal with famous people? What about if, say, somebody recognizes themselves in a character that a fiction author made up?
Kathryn Goldman: It's not just famous people. Defamation and invasion of privacy are claims that could be made by people who aren't famous, people who aren't celebrities. But for the most part, the right of publicity is owned by celebrities, and so your ordinary person does not generally have a right of publicity. So, that's a separate claim from defamation and invasion of privacy.
Howard Lovy: Getting down to specifics for self-publishers. From a legal perspective, what are the pros and cons of self-publishing?
Kathryn Goldman: The pros are total control. You have the ability to make your own editorial decisions. You have control over how you distribute your book, you have control over the cover, you are in control of how the money flows. You're in business, right?
Control is the biggest reason to self-publish. You're in control of your rights. You can decide where you want to publish, how you want to publish. If you want to go into the foreign market, you can choose who you're going to work with as a translator. Control is the reason to self-publish and to keep your rights out of the hands of those who would misuse them or not use them the way that you like them to be used. That's the biggest reason to self-publish.
The downside of self-publishing as all self-publishers know is you have to do it all yourself.
In reality, I don't think anybody really is a self-publisher. I believe every successful self-published author has a team that they work with. Most self-published authors work with book cover designers. They will work with book designers to lay out the interior of the book. They might get help with marketing. They get editors, they have developmental editors, line editors, proofreaders, they have beta readers. The notion of self is misleading because you really do put together a team of people to help you get that book published, and oftentimes I'm part of that team.
Howard Lovy: Speaking of those services, editing, proofreading, designing, formatting, are there legal protections or implications that authors should be aware of when it comes to forming agreements with these partners?
Kathryn Goldman: Yes. First of all, you have to read all the contracts before you sign them. There's no such thing as boilerplate. There's no such thing as a standard contract. Everything is negotiable. So, it's important when you're presented with a contract, working with a book cover designer, working with an editor, that you read the contract and that you understand what it says, particularly with regard to who owns what.
This is mostly true with book cover designers. If they're keeping the copyright to their book cover, you've got to pay attention to how you're going to want to use that book cover design and make sure that all those uses are listed in the contract, so you don't find yourself hampered when you get to the marketing and you want to modify the book cover in some way to suit your marketing. You want to make sure that's all covered there.
There are many times when the author will ask for a transfer of the copyright to the book cover, in which case they can do whatever they want with the book cover, without having breached the contract with the designer.
With editors, I've heard about this happening. I've never seen it, none of my clients have had this problem, but sometimes I have heard that editors will say, if they contribute an idea that enhances the manuscript, that they then own that idea.
Howard Lovy: I've never heard of that.
Kathryn Goldman: I know, I've heard of it, I've never seen it, but you have to be just aware of what rights you're giving up when you sign a contract and what rights you're acquiring. So, when you are self-publishing, you want to make sure that you own as many rights as possible and that you are controlling them, and that's what you want to read the contracts for.
You also want to make sure that there are clear deliverables, payment schedule. You want to make sure everything's clear because the contract is there to manage everybody's expectations. So, nothing should be unsaid, it should all be in the contract.
Howard Lovy: So, there should always be a contract. It's not just, hey, you want to edit my book? There needs to be something in writing.
Kathryn Goldman: Yes, but it doesn't have to be elaborate. It doesn't have to be full of legalese. It can be an email exchange. It can be, here are my terms for editing your book, does this work for you? And the author writes back and says, yes, it works for me, except I'd like to change the schedule. Does this new schedule work for you? And the editor writes back, yes, I can do that.
Boom, that's a contract.
Howard Lovy: Interesting. Now, this wouldn't be a podcast about publishing in 2024 if I didn't also ask about artificial intelligence. I know that there isn't a lot of case law yet, there isn't a lot of regulation yet, but how do you see that impacting what you do?
Kathryn Goldman: It has been so exciting to be a copyright attorney in the age of AI. It has just been so much fun so far. I've been doing a lot of work with it, I'm giving a talk at the end of this week, which will be the 12th, on AI in the design industry.
The thing about AI right now, according to the United States Copyright Office, is that AI-generated content is not protected by copyright. If you create a book, if you write your book using AI, it's not going to be protected by copyright.
Now, if you use AI completely to write the book, it's not going to be protected by copyright, but there are ways to use AI to help you write the book and it will still be protected by copyright. The key is the creative part of the book must be created by a human.
If you go to an AI text generator and say, write me a book on penguins in Antarctica, and it puts out a 15,000-word book for you. That book's not going to be protected by copyright, but if you break it down, if you do the outline, if you have the main points, if you use it to tweak what you're working, if your input is the controlling creative force of the book, you're going to be able to use AI tools and still get protection from copyright.
Where that line is has to be sorted out.
Howard Lovy: Exactly, yeah. It's used as a research tool, a way to generate ideas, as long as it's not doing the writing for you. But how that's going to break down in terms of enforcement, I have no idea.
Kathryn Goldman: The Copyright Office has had an opportunity to issue some registration decisions. One of the things that they've said in the context of an AI created work, now this was a graphic novel where the human wrote the text and AI generated the images. The Copyright Office said the text is protected by copyright, and the selection, sequence, and arrangement of the images is also protected by copyright because that involved the human making creative decisions, and that's what the Copyright Office wants to see. They want to see a human making the creative decisions that results in the expression.
In that particular instance, the images themselves were not protected by copyright, but the text was, and the structure, sequence, and arrangement of the images was protected by copyright.
We're starting to get some guidance.
Howard Lovy: Yeah, like Solomon splitting the baby a little bit; this is protected, and this is not.
In your experience, can you share any memorable cases or experiences in your career that impacted how you advise authors today?
Kathryn Goldman: I guess the most important thing from my area, so I've been doing this for a long time, and I was in litigation for 25 plus years, and the most important thing that I would say to authors is to try and minimize your risk of litigation.
Litigation is not a happy place to be on either end of it. You don't want to be a plaintiff. You don't want to be a defendant. You don't want to threaten it. You don't want it to be threatened against you. So, you want to really try and do what you can to mitigate your risk of liability to stay out of the courtroom.
That's my best advice, stay out of the courtroom.
Howard Lovy: What about the advice for authors who are just starting out? What's the first thing they need to think about after they write their books?
Kathryn Goldman: The first thing an author needs to think about is actually writing the book. It's craft, it's learning craft.
Then the second thing an author needs to think about is, once you have a quality manuscript, it's going to be marketing.
The legal piece of it, after the contracts with this team that's going to help you put out this quality book, the legal piece of it is small compared to mastering your craft and learning how to run your business, your publishing business, which is all about marketing.
Marketing has so many dimensions to it. It's relationship building. So, my advice is to be aware of what the legal needs are, but the legal needs for a self-publisher are small compared to the need to learn the craft and the need to learn how to run your business, and when you're running the business, that small part in there is legal.
Howard Lovy: Yeah, nobody wants to think about legal, but I think it's absolutely necessary.
Thank you, Kathryn. I appreciate your time with me and for appearing on the podcast. This has been very informative, and you gave us all a lot to think about.
Kathryn Goldman: It was my pleasure. I hope that your listeners. will come and visit me at thecreativelawcenter.com. A lot of what I have spoken about today, you can find in the resources on the website, in blog posts, and in the workshops that I offer. So, thank you for inviting me, I appreciate it.
Howard Lovy: Wonderful, thank you very much, Kathryn.
