Consent cannot be inferred | Behind The Books

Well, that sounds like a loaded title, doesn’t it?

Don’t worry, this isn’t going to be quite as heavy as that makes it sound, but it’s still important.

In my role as a writing teacher and advocate and publisher, I often get cast in the role of “helper” by those who need it. There are lots of people – brave, smart people – who investigate the publishing scene and maybe stumble across my classes and look around and they say to themselves “I’d actually rather do it myself, but I don’t know how.”

Self-publishing, when done right, is a noble and good calling. Often books that would be overlooked by even small publishers can come to light and find an audience. At worst, authors whose work would not have otherwise seen the light of day get to shoot their shot in the marketplace of ideas and find out firsthand if they were right or not. But not everyone knows how to do the things, how to do the layout and design and the formatting and all that silly stuff. Just today, I was contacted by a popular local author branching out on their own to help.

I was blessed with the privilege of a post-secondary education that focused on layout, design, image creation, editing, file conversion, and web design – aka, the tools that a lot of people self-publishing find the most confusing or expensive. When I started my own press with my business partners, we could do an astonishing amount of the work in-house as a result, and still do.

So I get called on to help, because I think these books are worthwhile, deserve their shot even if they don’t fit my press, and that people helped me in the past so that I should pay it forward. I do not typically accept payment for this help, I just help.

But in that role as helper, there’s an issue I see again and again that needs to be addressed.

“Consent cannot be inferred.”

Time and time again, I’ve seen these self-publishing authors steal material. Usually for their covers, but not exclusively. I’ve seen them print entire lyrics of copyrighted songs, plagiarize poems or the works of others, often with the excuse of “well, I see it used in other media all the time” without ever realizing the amount of hoops that the producers had to jump through in order to get permission from the rights holder. Or, put another way, to gain consent.

You cannot use copyrighted material without consent.

But more than that, you cannot infer consent just because the copyright holder didn’t get back to you. They actually aren’t required to get back to you. They are allowed to just ignore you, but that does not make your use of their material legal.

Actually, it has the potential to make it much, much worse.

Because you understand that if they ever find that email, you’ve made them aware of you to go looking for you online, and they’ll likely find the material you stole…right? And the problem is, now you cannot argue ignorance: you clearly knew you should have gotten permission, or else you would not have asked for it. Right? You can’t claim that you didn’t know it was stealing, because you asked permission. You just didn’t wait for a response. That can have a multiplier effect on the civil or criminal repercussions of the effect.

But let me be clear: ignorance is not a defense. Whether you know it was stealing or not, it is in fact: stealing.

And yet I hear this from impatient people over and over again. “I emailed the people who own the image and it’s been a week” (or a month, or a year) “and they haven’t gotten back to me! What am I supposed to do, wait forever?”

Well… yes. Or, hear me out, you could move on with your life and use a different image. Just because you had your heart set on that image does not mean you have the right to use it. If your heart is set on using it, then yes, you actually have to wait for the owner to get back to you. If you don’t want to wait, you can seek the rights of a different image or make your own.

What you cannot do is use the image or work without the owners having given you permission, no matter how long they take to get back to you. That is theft. And if you’re willing to do it, you are sending a signal about the type of artist you are and the type of person you are.

When people act like this, they are showing a large amount of entitlement. There’s a certain type of writer I see it in over and over again, and once you see it, you see it. These are people who have never been told “no,” who don’t understand that the world isn’t made for their convenience. These are people who, for too long it seems, haven’t had meaningful road blocks to what they want, and they don’t know how to deal with it.

These are people I wouldn’t leave alone with people I care about, because I’m nervous about the fact that they don’t seem to like to take “no” for an answer.

Because let’s say out loud what I’ve been dancing around: you are not owed an answer. If you email the rights holder of a picture and ask to use it for your book cover: they are allowed to ignore you. You are not entitled to even a response. It’s not just that they can say “no,” they can ignore you. They can pretend you don’t exist. Your email may even have gone to their spam folder. Maybe it is not worth their time to answer you, maybe they’re busy, maybe they just don’t care. But just because you want a response, that does not mean they are obligated to respond to you.

And furthermore: they are not being ‘rude.’ They don’t owe you their attention, and often people in these positions get so many emails a day that they could not possibly answer them all.

I know I’m making a lot of this, but it really bothers me. This, to me, reminds me of men who cat-call women and get mad when they’re ignored. “You could at least say no!” “You can at least be polite!” “You can at least say something!” No, actually, you are not entitled to a response. You are not entitled to even a rejection. It is perfectly acceptable behavior for people to ignore you or even not notice you. Sorry, not sorry.

And for those of you crying foul right now, let’s do a thought exercise. Let’s say I write you an email, or hell, let’s say I post right here “By reading this, you are consenting to selling me your house for a dollar.” If you don’t write me back or tell me otherwise, do I own your house now? “Clearly not!” you yell… so why, I ask, do you feel like it’s different? Why do you think I cannot infer your sale of your house to me via your lack of communication?

Here’s another example, if the “house vs art” argument is too much of a stretch for you: let’s say I want to reprint the text of your book. Actually, let’s make it worse. Let’s say I want to reprint the text of your book in a collection called “All of These Authors are Sex Criminals.” If I email you and ask your permission but you don’t get back to me… I’m okay to do that, right? No? Weird that you’re protective over your art but not the art of others.

Here’s a real life example. I desperately want to write books adapting a 1980s property, BraveStar. I loved it as a kid, I thought it was fun, it has some cool Western Horror elements and our Western Horror does really well. I think it would be lots of fun to do a series of novels based on BraveStar, and that it’d be cool to mimic that 80s Filmation style on the covers.

And nobody is using BraveStar right now. It’s just sitting there, untapped potential. And I have tried and tried and tried to figure out who to contact and through what channels to license the rights to BraveStar or even buy them outright, depending on the price. But not only will no one get back to me: I can’t even figure out who to contact. It’s like the owners don’t want to be found.

And that’s allowed. The owners of BraveStar are not obligated to be accessible to me. So you know what I do with my honest desire to use the BraveStar IP in my books? Fucking nothing. Because I don’t have permission.

Here’s a real life story.  An author reached out to me for help with a book. They were writing a children’s book about a bunch of kids playing hockey. That is and of itself? Fine. But they had all the kids in a one specific team’s real-life jersey. Nope, can’t do that. What’s worse, the title of the book referenced the team, and even one of the big brands that sponsored the team. A huge brand. And it’s brand logo was above the title, making it look like they sponsored the book.

So of course I was like “you cannot do that. That is definitely illegal.” To which the author said, confidently, “actually, I wrote them several emails asking permission.” … To which I asked “Oh cool, did they give it?” And of course they didn’t. And you can not do that. You cannot infer consent. That rises to criminal infringement to me.

What can the penalties be? Well, here in Canada, anywhere from $500 to $20,000 per infringement plus profits made from the infringement. The fact that the book didn’t sell many copies is not a defense. You owe every dime you made from it plus $20,000 for your negligence. And I’m willing to bet that if you’re making this mistake, you don’t have business insurance. And if you do, I need to talk to your provider. Your rates are not high enough.

But even so, that’s just for regular Commercial Infringement. The penalty for Criminal Infringement is anywhere up to $1,000,000 and five years in jail, according to the Government of Canada site.

And guess what a big part of deciding if it was a criminal act or not was? Whether you knew it was stealing when you did it. So the fact that you reached out for permission but didn’t wait for it or didn’t like that you were ignored? Congrats, that elevates this to a Criminal Case. You. Idiot.

So to sum up: Consent cannot be inferred. Learn to use material without violating copyright.