Have you ever wondered what’s “legal” to include in a book? What can you say, or not say? It doesn’t matter if you’re writing fiction or nonfiction, some things are okay—others will get you in trouble. And the last thing you want is to get rejected by literary agents or publishers due to legal issues. You also don’t want to get involved in a lawsuit.
Now, in case you’re wondering if this article applies to you, here are a few scenarios I’ve seen (for both fiction and nonfiction authors) that you might not have considered. As a former literary agent, Marketing & Licensing Manager for a well-known publisher, and now, author coach/consultant, I’ve pretty much seen it all.
Here’s what you need to think about.
Which of the following scenarios
applies to you and your book?
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Fiction Examples
1. Although your book is fiction, it’s based on (or inspired by) true events. How much of the real characters, settings, or events can you use in your novel?
2. The title of your novel has been used by someone else before. Maybe it was for a different book in your genre or a different genre. Maybe it was a movie or a TV show. Can you use it?
3. You’ve written what’s commonly referred to as fan fiction, a story based on existing characters from a television series, movie, comic book, or other sort of pop cultural character that you’re a fan of. Can you profit financially from your book?
4. You’ve written a novel that’s somehow “inspired by” one of your all-time favorite movies or books. Your work isn’t a copy by any means, and it isn’t based on any of the characters from the other work, but your project is clearly influenced by the other work and benefits from its creation. Readers of your book will see and appreciate that influence. Is it legal?
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Nonfiction Examples
1. You’re writing a memoir or autobiography that chronicles your story of triumph over personal trauma or abuse. What can you say, and not say, about the other people in the book?
2. You want to write an unauthorized biography about someone famous. Could the subject of the book bring a lawsuit for libel, invasion of privacy, misappropriation of the right of publicity, copyright infringement, unfair competition, or breach of confidence?
3. There’s a new collectible toy series that’s become a worldwide sensation and you want to create a book about it. Do you need the company that created the toys to sign off on the project or endorse it?
4. Your book has quotes by other people and some music lyrics in it. How much can you include, if any? What do you need to know about “Fair Use” and does it apply to your situation?
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What Should You Do?
My author coaching clients frequently ask me
what they should do in these situations.
“Should I take this or that out of my book?”
“Will I scare agents away with this stuff?”
“Should I hire a lawyer?”
The answer I give depends on the genre of the author’s book, the type of situation they’re in, and the size of their bank account. Some scenarios are more likely to cause problems than others.
But…
Nine times out of ten (if the book is already written or mostly written), I tell authors not to worry about it. For the time being, anyway. That’s because literary agents and publishers will almost certainly have different opinions about what you should or shouldn’t say in your book.
And, lawyers are expensive.
It’s that simple.
If, on the other hand, you haven’t written your book yet, you should definitely talk to someone first. However, I suggest you talk to someone like me instead of a lawyer.
Just post a question for me below.
Or…
If you haven’t yet had an introductory coaching call with me, click here to learn more about it and sign up: Introductory Coaching Call.
During your time with me you can ask me any other questions you have as well… about writing, publishing, and promoting your book.
Either way, don’t be a stranger,
– Mark
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MARK MALATESTA is a former literary agent turned author coach. Mark now helps authors of all genres (fiction, nonfiction, and children's books) get top literary agents, publishers, and book deals through his company 
MARK MALATESTA is a former literary agent turned author coach. Mark now helps authors of all genres (fiction, nonfiction, and children's books) get top literary agents, publishers, and book deals through his company 
I appreciate everything Mark, however I’m going to contact an attorney. I certainly don’t want a lawsuit against me.
Thanks, Belinda
Hi Belinda, always the wise choice. 😉
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
I registered to your email ” free gift/get free access” and I never got any response from you what’s going on?
Hi Marci, sorry I’m slow getting back to you. Right after you posted your question, I had some website issues that caused me some problems. But now I’m back!
After looking you up in my database, it seems you simply entered a typo in your email address when you signed up, but then you registered again with the correct one. So I’m guessing you have access to everything now?
Let me know, and…
If you want help with anything else, you can post questions for me online here: http://thebestsellingauthor.com/ask/. You can also (if you haven’t done so already) get access (no cost) to all the valuable resources in our private, members-only area here: http://thebestsellingauthor.com/membership/. And you can register for an introductory coaching call with me here: http://thebestsellingauthor.com/coaching/intro-call/.
Either way, I’m looking forward to learning more about you and your work.
Have a great week!
– Mark
Mark Malatesta
The Bestselling Author
http://thebestsellingauthor.com
Literary Agent Undercover
https://literary-agents.com
We had an initial phone consultation and you sent me a proposal regarding a fiction novel “Warshed in the Water.” At that time I could not find the letter than ended me up on the Sally Jessy Raphael show on CNN. The show never aired due to the Tonya Harding Nancy Kerrigan but have since found the letter and would be interested in talking to you as I am going to dictate my memoirs and need to know about your prices, hiring etc.
Hi Deborah, I enjoyed catching up with you yesterday and I’m glad you’re following through with everything. Anything is possible when you make that commitment to yourself and your writing. Looking forward to hearing from you again when you get the next few things done. Have a good night and know you’re not alone in your journey. Mark
Hi Mark, I have written a short story (fiction). Stephen King is the main character. Its called The Tallyman. In the body of the story are many of his titles. I spent months trying to get permission to publish and had a devil of a time trying to get hold of his publicist. I also posted on his Facebook page etc. No responses anywhere. I have since published the story on Amazon. Reading the above article has raised some questions. Can you advise.. Thank you kindly.
Hi Catherine, I know I opened Pandora’s Box writing this article… but your question is one that I wouldn’t be able to answer. My gut says that you’re okay to do something like this, but it would be worth it to talk to an attorney on this one. Mark
I’m only halfway done with my novel, but it was pointed out by one of my friends that it is eerily similar to a series called The Dresden Files. I had never read them before, but after picking it up just to check, I noticed how strong the similarities are, and I feel kind of disheartened. My boyfriend says not to worry about it because everything is regurgitated these days, but it still worries me. Should I change it?
Hi Marie, I wouldn’t worry about it in this case. Probably not as similar as you think, your boyfriend might be right. As long as you didn’t copy anything, you should be good. At least if you’re going after a traditional publisher. If/when you get an agent you can ask them about it and see what they think. Every agent and publisher is different. I certainly wouldn’t let it stop me from marketing the book to agents if I were you. Mark
Thank you for the advice! I decided to err on the side of caution and change things I considered to be too close to Mr. Butcher’s wonderful novels. Fixing it when I’m halfway through is better than having to re-write the whole thing, anyhow! I believe the adage is, “Work smarter, not harder.” 🙂
Good decision. And… smarter and harder is unstoppable. 😉 Mark
Hi Mark, I originally had song lyrics in my latest novel, and then heard using song lyrics is copyright infringement, even if you credit the singer. Is this true? I’ve since only referenced the song, but no actual lyrics. Am I safe now?
Hi Sue, the problem with cases like this is that it’s a very gray area. There are no clear-cut answers. In general, the less you have… the more likely it is you won’t have issues… or you and/or your publisher will be able to get permissions… or not need them. But how many words can you include, etc? In general? I don’t think you’ll find a clear answer to that anywhere. But I wouldn’t worry about it when simply querying agents. If/when an agent is getting serious about representing you, they might bring it up. Or they might just wait to see what your publisher says. Referencing the song might be fine, and I’d expect it to be, but again, I’m not a lawyer. 😉 Mark
Good Morning, Mark,
Thank you for your article about what and what not to use in a fiction novel. My book talks about experiences from a greyhound’s point of view. A lot of those experiences did happen, but, I don’t use the ‘real’ names of people, nor do I state where. And, there is no dialog..so no one knows what I said. The hounds wouldn’t know anyway. Is there a concern with what I’m doing? Best continued wishes in getting settled in your new home.. Esther
Hi Esther, I have absolutely no worries in your case. Since I know quite about what you’re doing, I can say that with confidence. 😉 Mark
And thank you for the well wishes… we’re slowly getting settled in but it’s been a wild ride in the furniture department. I have to write an article about it. But how to connect it to authors so it’s relevant? I’ll figured it out! Have a good night. Mark
Hi and welcome to Calif we are now less than 50 miles apart! I mention hotels by name in my book, should i change to a fictitious name? Is there any chance an agent would rep an author whose book has been out over a year?whats ur thoughts on a guy charging $3500 to get ur book into hands of a Hollywood producer? Hes sponsored by Steve harrison im still here, writing erotic short stories miss you both, debbie
Hi Debbie! Still getting settled in here but we’ll host some kind of event in the near future and maybe we’ll see you there. About your question regarding hotel names, I have no idea. I’d let your agent/publisher worry about that one. Easy enough to fix. And the time your book has been out won’t matter. If someone likes your concept and style, you’re golden. And I would run like crazy away from paying a fee like that to get a project into the hands of a producer. For many reasons which I won’t give into here, it’s probably going to lead nowhere. Steven Harrison in the picture or not. See you soon I hope. Mark
Great offer for legal insights advice, Mark.
There’s a rare situational dilemma as well.
What if your family has been in numerous publications unauthorized.
These are unmistakable and twisted. However have been financially
mega lucrative for others and their investors.
There are zero personal funds to protest and a ban on publicity.
Any publisher or agent approached with original writing on other topics
would likely be angry about exclusion from the known fame of sorts.
Hi Evelyn, that’s a tricky one… might be worth talking to a lawyer who might be willing to take the case on for a percentage instead of you paying them? Can’t hurt to look into it. Mark
Great questions. I felt good about my answer for most of them, which was essentially what Mark said.
But for those in a panic – an offer of hope: I have a friend who recently had an urban fantasy published. She had to change the name of the setting, one of the songs, and a few minor details. Everything else was covered by a legal statement on the copyright page “Trademarks used in this book are property of…” But, Guys, she’s PUBLISHED.
So stay calm and call Mark Malatesta. 🙂
–JEN
Hi Jen, good for her! I’ve been asked questions like this a lot lately, so now I have a post to point people too. 😉 Good hearing from you and have a great evening. Mark
Mr. Malatesta,
I would like to join your Introductory Coaching Call, but I am overwhelmed with things until next Tuesday. Would that be too late to join?
Also, I live very near your new LA headquarters. Is it possible to have our one hour conversation there. It would take me 10minutes to get there. I used to live 3 blocks away from you until 2 years ago.
Thank you for your time and consideration.
John McCormack
Hi John, not a problem. Thanks for letting me know, I’ll hold a spot for you. I don’t meet face-to-face with authors though unless we end up doing more than just the one call. But, even if you don’t do more with me than just the one call, we will be doing some local events soon so we’ll be able to connect soon regardless. Any other questions about coaching you can email me privately here: http://thebestsellingauthor.com/about/contact/. All my best and hope to speak with you soon. Mark
Can I submit a synopsis or a query without cost?
Plz advz
thx much
Mike
Hi Michael, I have more than 10,000 people in my community now… so, although I answer questions online (no cost), the only way to get me to critique anything is to sign up for an introductory coaching call here: http://thebestsellingauthor.com/coaching/intro-call/. Otherwise I’d be inundated with similar requests. Mark