Your legal questions, answered
We’ve worked with media attorneys Mike Wolfe, Tim Hwang, and Lea Rosen to answer questions about legal matters for Substack writers.
We’ve distilled some of their insights into one handy post for writers to refer back to as they consider legal questions that might affect their work. (For more insights, check out their AMA.)
Frequently asked legal questions
(Note: the following are generalized answers about the law, and they shouldn’t be taken as legal advice. If you have specific questions about your situation, you should consult an attorney.)
Is it ok to use images I don’t own in my publication?
Is it ok to use written content I don’t own in my publication?
Who owns my content?
I’m based in the United States. How do foreign copyright laws affect me?
Do I need to trademark my publication?
Do I have copyright protection over my work?
Do I need publishers insurance?
Should I start an LLC?
Is it ok to use images I don’t own in my publication?
In the United States, what’s ok to use depends on “fair use,” or using an amount that feels reasonable, given a favored purpose. For example, writing criticism and commentary are common examples of situations where fair use of other images (say, a screenshot from a TV show) typically applies.
What counts as fair use is highly contextually dependent. It can help to look at other fair use best practices to get a sense of what’s allowed.
In the United States, many journalistic uses will be considered fair use. But if you’re not sure, it’s better to assume that all online images from the 20th century are protected by copyright, meaning you will either need permission from the rightsholder, or to find an applicable copyright exception.
You can also try using images that are licensed for public use, such as those with a Creative Commons license.
Is it ok to use written content I don’t own in my publication?
Linking to lawful, publicly posted material is generally fine. Standalone news article headlines, for example, are generally not protected by copyright.
Copyright laws are highly contextually dependent and carry a lot of exceptions. In the United States, “fair use” is the most important concept to focus on. Whether something is fair use depends upon your jurisdiction, how big the excerpt is, what type of content you’re republishing, what you’re using it for, and how much your actions affect the market for the original – among other things.
If you’re republishing an article that was originally published on another website, you’ll want to get permission. This can be as simple as a verbal OK, but for your own protection, having something in writing is always helpful. For more significant copyright transactions, such as exclusive licenses and transfers, signed writing is required by law.
Note that authors are not always rights holders; you may need to get permission from their publisher. In these cases, a more formal agreement can provide extra reassurance.
Who owns my content?
You own all the content you publish on Substack. We ask everyone to sign a publisher agreement, which you can read here.
I’m based in the United States. How do foreign copyright laws affect me?
Copyright protections look similar between countries, but the specific exceptions and limitations vary widely. Only a few countries have a “fair use” standard, like the United States does.
Your fair use might still be allowable in another country, but it depends on that specific country’s exemptions. If you’re publishing in the United States, but have significant readership elsewhere, it’s worth understanding what compliance looks like in that jurisdiction.
Do I need to trademark my publication?
Trademark rights come from actual use in commerce. If you sell things or provide services using the mark in question (such as a name or logo), it will help enforce an association between you – the provider – and the mark.
Adding a ™ symbol is not required, but can help signal your intention to claim trademark rights. The most important thing, however, is using the mark widely, and earning recognition as the provider of the good or service.
If you intend to claim trademark rights, you can also register your mark. You can also register your mark internationally, but actual use in other markets will be required. If you’re thinking about registering a trademark, it’s helpful to consult an attorney about the process.
Do I have copyright protection over my work?
Copyright protection applies if you’ve created an “original work of authorship,” assuming that you have exclusive rights to reproduce and distribute the work, among other things.
Enforcing copyright interests can be difficult and expensive. In the United States, it’s a federal law, so it is enforced through federal lawsuits.
If you think you might be interested in enforcing your copyright interests, consider registering your work with the Copyright Office. In the event of a copyright dispute, a judge or attorney will look for evidence of who asserted their rights first, and when they asserted those rights. Registering your work can provide a clear example for you to point to. Registered works are also eligible for statutory damages, which makes it easier to secure a settlement, and can provide substantial awards.
Do I need publishers insurance?
Some publishers carry errors and omissions (E&O) insurance, which is a form of liability insurance in the event that someone files a claim against your work. It’s typically used in professions where you’re giving advice to others (think lawyers or accountants). For publishers, someone might file a claim in the case of defamation or factual errors, to name a few examples.
If you think you might be at risk of this happening, E&O insurance can be helpful, depending on what you write about, the cost of the insurance, and the scale of your work. You may want to consult with a lawyer if you’re considering this decision.
Should I start an LLC?
In the case of a lawsuit, LLCs offer legal protection for your personal assets. (LLCs are a form of private legal entity in the United States.) If you think you might be at risk for this, creating an LLC might be a good idea. If you’re making a lot of money as an independent contractor, you might also benefit from an LLC to manage your assets.
LLCs do have annual registration fees, which vary by state, and there’s a bit of regular paperwork you’ll have to do, so you’ll have to weigh these costs against the benefits, based on your personal situation.
Substack Defender program
If you’re looking for dedicated legal support, writers with paid subscriptions can apply to the Substack Defender program.
Applications are open to US-based writers who have enabled paid subscriptions and publish work that may attract unreasonable legal pressure, such as abuses of copyright laws, assaults on first amendment rights, and spurious defamation claims.
Substack will make the ultimate choice on who is accepted into the program and which cases to support. Once a case has been taken on by our program’s lawyers, Substack, at our discretion, will cover fees up to $1 million (in exceptional cases, we may cover even more).