Loose lips sink ships. — World War II poster
All writers, not just therapist writers, should pay attention to the legal side of publishing, and concern themselves with the possible consequences of what they say in print. Blabbing off and not heeding the rules can get anybody in trouble. No writer benefits from getting sued. That’s definitely not a perk.
Writers who also happen to be licensed mental health professionals and write about their work with clients have to be particularly vigilant because they are bound by a number of legal and ethical restrictions (such as maintaining patient confidentiality) which can inhibit and impact what they say.
Now, I don’t know if it’s just that therapist writers are worry warts, but when it comes to writing a book, here are 10 things therapists seem to worry about, have the most questions about , and need the most help solving:
1. Should I copyright my book idea? It’s mostly new writers who worry that somebody is going to steal their book idea. News flash! You can’t copyright an idea, even a good one. You can only copyright the execution of an idea, i.e., how that idea is expressed in writing. The minute you put it down, you are protected. You don’t even have to officially register a copyright, but it’s still wise to do so just in case you get involved in a legal case. Then, you’ll have an official copyright date on file. Go to www.copywrite.gov, read the instructions, and email a digital book file and $35 to get your “placeholder” copyright (while you are finishing the book). When your book is published and available for sale, go to www.copywrite.gov again, follow the instructions, fill out two copies of a form, and then mail the two copies of the form, a check ($65.00 as of this writing), and two copies of your book to the Library of Congress, Copyright Office, Document Recordation Section, 101 Independence Ave SE, Washington, D.C. 20559-6000. (Always double-check the website for any new information and instructions). One copy of the book goes to the Library of Congress. (Yes, you can go there and check out your own book!); the other copy gets stored somewhere.
2. What if my book idea is already taken? So what? Unless your topic is unique, there are probably hundreds of books on your subject already in print. Search Amazon. You’ll be astounded at how many authors have beat you to the punch. But that doesn’t matter. Your challenge will be to tweak your idea so it’s “better and different” than the rest. If you want to write “about alcoholism,” and you note that thousands of others have already done so, then tweak it. Write about “high IQ alcoholics” instead. That will be your niche. That will make most of the competition go away and make your book stand out. Next, look only at the books in your niche that were published in the last five years. Read the customer book reviews. Read the “Look Inside” feature. How do competing books handle the topic? What’s missing? Note the Tables of Contents. You’ll learn what to focus on, what to add, what to leave out, and you’ll get ideas about how to market your book – the hardest part.
3. What if my book title is already taken? Same answer as #1 above. You can’t copyright a title. For example, there are many books called “The Gift.” Some are differentiated by their subtitles. There’s was also a movie called “The Gift” and a TV show called “The Gift.” You can still call your book “The Gift” if you want to, but why would you? Don’t you want it to stand out? The only titles and words you can’t use are trademarked — like Hell’s Angels, Hello Kitty or Harry Potter.
4. Can I write about my patients? Yes, you can write about your patients, but you know the drill. As mental health professionals, we are legally bound to protect their identities. This means you have to learn the “art of disguise” to the point where friends, family and even the patient themselves won’t be able to tell who you are writing about. This actually shouldn’t cramp your style too much because the details of a patient’s life are rarely critical to the story you are trying to tell, or the message you are trying to convey. Of course, you can side-step this by getting signed releases from the patient and perhaps recognizable others in the story, but that’s not always foolproof. The other way is to change everything — dates, ages, places, details about looks, jobs, family members, even therapy issues (if uncommon enough to be recognized). It’s the core of what you are writing that’s important. Focus on that.
5. Can I write about friends and family? Authors rarely get sued for saying something nice about somebody. It’s when you get critical or expose gossip and hurt someone’s reputation in the world that makes people cranky – or litigious. In my first book I said that my sister, during her high school years, looked “scruffy.” I didn’t think that was such a big deal, but she was hurt. And I learned something. It wasn’t necessary for the sake of my story to use a critical term. Did you ever see the movie “Tea & Sympathy?” It’s about a male student at a boarding school who has an affair with the head master’s wife. When the boy leaves the school, the wife tells him, “When you talk about this – and you will – be kind.” So unless you are a journalist and writing a killer exposé about, say, the mistreatment of the elderly in a nursing home (and your facts better be right!), then, as a general rule, “be kind.”
6. Can I quote from other experts in my field? Being able to quote from thought leaders in our area of expertise is critical. How could we progress without referring to those who have gone before us? The tradition of “Fair Use” allows authors to quote other people – up to a point. The law here is “fuzzy “and vague. It all depends on what’s being quoted. You may have heard that you can “quote up to 50 words,” but that’s a myth. Perhaps you can quote 50 words from a scientific document, but you probably can’t quote even five words from a song or poem. According to Jonathan Kirsch, a Los Angeles based attorney specializing in intellectual property and publishing law, when it comes to substantial quotes you need to get “permission” (see below). “If you rely on ‘Fair Use,’” Kirsch added during a talk for writers I attended (I’m not an attorney myself so I go hear them speak), “you are taking a risk.” Being published traditionally doesn’t protect you either. “The publisher wants the author on the hook, as in, ‘Author shall indemnify, and hold harmless, the publisher.’” In other words, guess who is considered the “deep pocket” in this scenario? YOU are! One workaround is paraphrasing and giving credit to the original source, but you have to be careful that you don’t get accused of misrepresenting what the original author said. Another “quoting” issue I run into as an editor is over-quoting. Mental health professionals, especially when they are new to book writing, are insecure and tend to fall back on quoting others instead of putting their own opinions out front. I have to scold them: “Don’t keep quoting other people. You are the expert here because this is your book, so quote yourself!”
7. Can I write about myself? Some mental health professionals are skittish when it comes to writing about themselves. It makes them feel exposed and vulnerable. “What will my patients think?” I know traditionally-trained “blank screen” therapists who wouldn’t dream of disclosing personal information to patients, including the fact that they write. Sadly, it keeps many from writing at all. On the other hand, I know therapists who blog, share opinions, and have Facebook pages filled with family photos and events. Often these therapists who are at ease with self-disclosure are in recovery from the same conditions they are treating their patients for — addiction, over-eating, bi-polar disorder, divorce. They experience sharing and writing as helpful to their clients and vice-versa.
8. Can I use a painting or photograph for my book cover? If you painted it or snapped it yourself, or hired a graphic artist for the job, yes, if you think it would make a good book cover. But if it’s something from the Internet, probably not, unless you’ve bought it and have the rights. Or it’s from a free photo site, such as http://www.morguefile.com. Paintings and photos, like books, poems, and song lyrics, are often under copyright protection — unless they have fallen into the public domain (meaning the copyright has expired). Written works fall into the public domain 70 years after the death of the author. This means thousands of books are up for grabs every year. That’s why anybody can make a movie of Hamlet or reprint Sense and Sensibility through their indie publishing company. You don’t need to get permission from Shakespeare or Jane Austen.
9. How do I get permission to use quotes in my book? You’ve probably heard this cute little line: “It’s easier to ask for forgiveness than to ask for permission.” Unfortunately, when quotes don’t fall under the “Fair Use” umbrella, or are not in the public domain, or are not properly paraphrased with credit to the original author, then you’ll have to get permission. How do you do this? You ask. The hard part is finding out who to ask. Check www.copyright.gov to see who has the copyright. (By the way, this information is sometimes dated or wrong.) Track down the author if he or she is still alive. Write a letter to the author via The Writer’s Guild because they’ll sometimes forward a letter on to authors. Contract the publisher who may do the same. Check Facebook even if the author is dead. When you do find somebody who can say yes — they may say no. I wanted to use a poem in one of my books, but the poet told me she still gets paid speaking gigs based on that poem, so she wasn’t going to let me have her cash cow! In most cases, once you manage to track down the author, they are happy to be quoted if you quote them correctly, give them credit, and are “kind.” (Warning: Sometimes there’s a fee involved.) In your book, either on the page where you use the quote or in a special section, you say “reprinted by permission.” Getting those “permissions” is an achievement!
10. What if my book is a best-seller? That’s a problem!? Well, I guess it could be since it’s usually just famous authors who make money who get sued. Unknown self-published authors who sell 100 copies or less rarely get sued. But don’t count on things going either one way or the other. Don’t blow off the legal side of publishing. The best advice I got was to hire an attorney read a book I wrote to make sure there was nothing libelous or slanderous in it. He had me get a release letter from one person, which I did – just in case. With another book, I deleted one of the twenty-one interviews in which a man said something “not kind” about somebody else. That “somebody else” threatened to sue if the book was published, so I replaced the interview and avoided a potential problem. Rule of thumb: Prevention trumps litigation! Now you can go ahead ad tell your tales without fear.
(c) The Therapist Writer: Helping Mental Health Professionals Get Published by Sylvia Cary, LMFT, available on Amazon and Kindle