3 Legal Issues Writers Should Probably Avoid

Don't get yourself into trouble

I’m not a legal expert—just an author who has researched three activities that I’ve seen other writers do that I’ve since learned probably aren’t legal. I’ve included links so that you can do some research yourself, and please do consult someone with legal expertise instead of taking my word for any of this!

1. Hosting Giveaways That Require Purchase

2. Sharing Photos of Young Readers

3. Using Song Lyrics

1. Hosting Giveaways That Require Purchase

Have you ever noticed the difference between a giveaway hosted by an author and one hosted by a publisher? The publisher will always include a line of text that says “no purchase necessary for entry” and will provide a way to enter the giveaway for free (for example, they’ll instruct entrants to mail a postcard to an address or to fill out an online form). Writers don’t usually do this with their own giveaways, and that makes their giveaways illegal.

Writers never believe me when I tell them that it’s illegal to require readers to purchase something to enter a giveaway. I once saw a writer who also works as a lawyer post a giveaway on Instagram that required entrants to purchase her book; the post included several paragraphs of legal language but no information on how to enter the giveaway without purchasing anything. This baffles me! As far as my research has shown me, the law seems clear on this: you can’t require people to purchase something to enter your giveaway.

So before you buy items for your prize packages, whether they’re gift cards or tote bags or even just bookmarks, make sure you’ve set up a way for people to enter your giveaway for free—and decide whether the giveaway will still be worth it if a lot of people choose that option. If you’re doing the kind of giveaway where you’re asking people only to comment on or share a post in order to enter, you’re fine! It’s only giveaways that require a purchase that are illegal (because they’re essentially a form of gambling.)

2. Sharing Photos of Young Readers

When I led a teen group at a bookstore, we often posted photos of teens posing with visiting authors. But then we realized that although teens seem old enough to decide for themselves whether they want their photos posted online, we really should ask parents for permission. From then on, we made sure that before we posted a photo of a teen, we had gotten their parent to sign a release form. Many writers post photos of their school visits that show children in the audience or posing with the writers, but for ethical and legal reasons, you probably shouldn’t post a photo of a minor without a parent’s permission.

As far as I can tell, it is legal to post a photo of a child if that photo was taken in a public setting, even without a parent’s permission (but ask someone who knows more about law than I do, because the intricacies of this are a bit confusing to me!). A photo taken in a school setting might be another matter. It depends on the school district’s policies and the state’s laws. All the same, it’s ethically wrong to post a photo of a minor without a parent’s permission. Some parents are adamant about maintaining their child’s privacy, and just because a child has attended an event, that doesn’t mean they want their photo taken.

When I do school visits or other book events that teens attend, I never take photos of readers. I allow teens to take photos with me, and I assume they post those photos online, but I’m pretty sure it’s not my legal or ethical responsibility to track that. I also can’t control whether event organizers take and post photos—that’s for their own legal department to figure out. But as far as it’s up to me, I don’t take photos of minors.

Some authors get around this by taking photos of an event from the back of the crowd so that children are shown only from behind. I find that to be an ethically gray area and don’t do it myself. The reason for posting a photo like this is to show the public that an event was well-attended, and that the children enjoyed the writer’s presentation. But is that necessary? I’d rather post a photo of me speaking and not worry about whether people believe my event was a success.

3. Using Song Lyrics

So many book titles (and movie titles) make use of song lyrics. Titles like Never Ever Getting Back Together and Don’t You Forget About Me grab our attention because those phrases are already familiar to us from the songs we know and love.

But you might have noticed that song lyrics rarely appear in the text of novels (unless the novelist has made up those lyrics herself for use in the novel). That’s because under the legal doctrine of fair use, a writer can only use a small portion of a copyrighted work in her own novel, meaning you can’t reproduce the lyrics of an entire Taylor Swift song in your book. That would infringe on Swift’s copyright. (In the same way, you wouldn’t want someone reproducing your entire novel inside their own novel, right?).

Why do publishers get away with using song lyrics as book titles? Here’s what I’ve gathered, although someone with more expertise can chime in. I’ll use the example of a Taylor Swift lyric: calling a book Never Ever Getting Back Together is okay because (a) you could argue it’s a common enough phrase that it isn’t necessarily referencing Swift’s song, (b) if it is referencing that particular banger, it’s only using a small portion of the song’s lyrics, and (c) the lyric is also the title of the song, and titles of songs can’t be copyrighted. (Neither can titles of books, which is why you’ll sometimes find several books published under the same title.)

Using a longer portion of a song does not fall under fair use, and since songs are very short, it’s difficult to know how short you would need to keep a quote in order to avoid legal trouble. For this reason, most publishers will ask you not to quote song lyrics at all in your novel. That means your character can’t sing along to lyrics in your road trip scene, and your epigram can’t use lines from a song, and your chapter titles probably shouldn’t reference song lyrics either. If you can get permission from the artist who holds the copyright to those lyrics, that’s another story, but how are you going to do that? Of course, if you’ve only used a very short snippet of a song lyric, your publisher might agree that you’re in the clear—but publishers are usually pretty wary of allowing song lyrics because fair use is difficult to define.

Whether you avoid these three activities is up to you and your understanding of the law, but I avoid all three. Let me know in the comments whether you have a different take!