Sallie Randolph

Ask Author Law

Who controls the right to write about people?

January 9, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Freelance, IP Law, Intellectual Property, Author, Publishing, First Amendment

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I wrote a book that was to include information about a well-known (and somewhat controversial) local minister, now deceased, who was an integral player in the story I was telling. During the course of my research I interviewed many members of his congregation, some of his colleagues, and his successor. I showed a copy of my manuscript to one of the prominent members of his congregation to review for accuracy and to see if he would give me a quote I could use as a cover blurb.

A few days later, out of the blue, I received a letter from a lawyer representing the church. The letter said that the church’s board of trustees had voted unanimously to withdraw permission to write about the minister because it had been his wish not to be written about.

It went on to say, “the Board, therefore, insists that you cease and desist from publishing any article or book about Rev. John Doe (name changed) in any form or manner,” and warned that if my book was published with the material on the minister included they would take legal action against me. This material is an important part of my book, which has already been accepted by a publisher. What can I do?

A: In the United States we have the right to write accurately about people and events. The subject of a book or article (or his associates) has no right to prevent you from writing about him, as long as you are truthful. When the subject is dead, you can’t even libel him or invade his privacy.

In my opinion, you can either ignore the letter or respond politely, saying that there is no legal basis behind these demands and that you intend to exercise your first amendment right to write about the minister. As an alternative to responding yourself, you could ask a lawyer write on your behalf. That might give the response more weight. From a strategic perspective, I’d advise responding with a polite but firm letter from either you or a lawyer just because it’s helpful to all writers to correct grossly mistaken views such as those expressed in this letter.

You should also be careful in negotiating the publishing contract to make sure that you are only responsible for “damages finally sustained” in the event of a lawsuit, rather than any “claims” or other results short of a final damage award based on an actual breach of your warranty. If you think there is a risk of a nuisance suit, you may want to see if the publisher will add you to its insurance. If you’ve already signed a publishing contract, you should probably consult with the publisher about ways to manage this risk. Many publishers will back you up. Some might want you to bear all the risk. If you have doubts about your legal liability, you should probably enlist the help of an attorney.


Quoting from an actual letter

January 5, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Infringement, IP Law, Intellectual Property, Plagiarism, Freelance, Fiction

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Could you please give me an opinion on what is or is not plagiarism in fiction. For example, is it plagiarism to rewrite a letter in a fictionalized biography, so that the sense is the same as the original, but with very different wording, with original material added by the writer? In other words, how close does the prose have to be to fit the definition? Do you need permission in such a case, or is it enough simply to give credit?

A: You asked about plagiarism, but I’m also going to discuss infringement. All infringement is plagiarism, but all plagiarism is not necessarily infringement. Plagiarism is an academic concept regarding the failure to attribute the source of information or by misleading the reader as to the source. Infringement is the violation of a copyright. In cases of infringement, the issue is illegal copying, not attribution. You may be able to avoid charges of plagiarism by giving credit, but you need permission to use copyrighted work, except for very short quotes that constitute fair use. The situation you have described has the potential for both plagiarism and infringement.

There is no copyright protection for facts, so you’re free to fictionalize by inventing things based on the facts. The writer of a letter (published or unpublished) owns a copyright interest in the text of a letter, so you’re not free to make whatever use you wish of this other person’s work. The same legal guidelines would apply to quoting someone else’s copyrighted work in fiction as in nonfiction. Short quotes might be considered fair use, but I wouldn’t count on that.

Probably the safest way to handle this situation would be to paraphrase the actual letter and use indirect quotations. “I will love you until the end of my days and beyond,” a direct quote, could be handled like this: Mary expressed her feelings in a passionate letter to John, saying that she would love him until she dies. Even when paraphrasing, it is important to change the actual words enough to avoid repeating distinctive phrases.

I would not advise making up a fictional letter and using direct quotes from it. That strikes me as moving a step beyond making up fictional dialogue. Rewriting something does not necessarily protect you from charges of plagiarism or infringement. Such revision would certainly be considered improper by academic standards and I’m not sure how you would handle quoting from a fabricated letter without misleading the reader. Basing a fictional letter on an actual letter could also be copyright infringement, even when you change the words. So, for all these reasons, I would stick to paraphrasing an actual letter by describing its existence and the gist of its contents. If you must use direct quotes, make them short and quote from the actual letter, not a fictionalized version.

The role of agent and attorney

December 30, 2014

Tags: Author Law, Foreign Rights, Writing, Sallie Randolph, Copyright, Publishing, Books, Contracts, Agent, Literary Agent, IP Law, Intellectual Property, International Publishing

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: In a rapidly changing industry agents indicate one of their values is negotiating international or business relationships. Isn’t this a service an IP attorney could handle for an author?

A: The role of an agent and an attorney depends entirely on the individual relationship with the client. Both agents and attorneys are generally capable of negotiating contracts and “doing deals” on behalf of their clients, but the specific services they offer depend on how they choose to structure their literary agency or law practice.

In general (but not always) an agent markets a work on behalf of her clients and also negotiates the terms of a deal when the work is licensed to a publisher. Most lawyers, myself included, do not market the work of their clients to publishers, but they do negotiate publishing contracts. Agents are usually compensated through a commission (the going rate is 15% -- sometimes higher on foreign and film licenses) on everything the author earns from a particular work. Lawyers usually charge a flat fee or hourly rate, although some may charge on a percentage basis.

The most important difference between a lawyer and agent is that the lawyer-client relationship is completely confidential and legally privileged. A lawyer’s first obligation is to act in the best interest of the client -- even if that means acting against her own best interest. An agent may have many clients working with the same publisher and might be less inclined to advocate vigorously for an individual client if that means antagonizing the publisher.

A useful analogy might be to compare a literary agent with a real estate broker. You need a broker to sell a property, but you also need a lawyer to review the legal aspects of the transaction and make sure your interests are fully protected.

A writer with substantial international sales would benefit by using both an agent and an attorney.

A hostile question from a Pirate Bay supporter

December 22, 2014

Tags: Pirate Bay, Bit Torrent, File Sharing, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: You should get your facts straight. You tweeted that various blog posts and tweets about the shutdown of the Pirate Bay were wrong and that members of the Pirate Party condoned theft. You said that copyrights could be “owned.” You are wrong! The copyright industry guards the rights of special interests over the rights of individuals. According to one leader of the Pirate Party: “The Pirate Bay have made themselves famous through more than ten years of existence as a guiding star on the Internet sky, against all odds, despite all attacks from the copyright industry. That’s made them into one of the most important symbols of freedom in our time, rightly celebrated worldwide.”

Another Pirate Party leader said: “If The Pirate Bay should disappear forever, it’s a given that other sites will fill the void over time. File-sharing cannot be stopped, it’s a global grassroots movement. But to make it work in practice, we need search engines like The Pirate Bay, capable of handling traffic from millions of people worldwide.” So why don’t you get down off your high horse and get with it instead of being a weak-willed apologist for the copyright industry? Long live The Pirate Bay! The efforts continue! Sharing is Caring!

A: Wow! You are entitled to your opinion, but I completely disagree. File sharing technology isn’t the problem. It’s the fact that you’re using technology to rationalize theft that I find so appalling. File sharing makes it easy to steal, but that doesn’t make stealing right. It’s also easy to get into a private yard along a residential street. Does that make it OK to step into someone’s yard and take the soccer ball sitting by the fence just because you happen to want a soccer ball and there’s one there? I say no. It’s not OK to declare that something should be “free” and then help yourself. Piracy is just plain wrong and glamorizing it doesn’t erase this fundamental flaw in your logic.

The word copyright means, literally, the right to copy. It is the legal expression of a fundamental property right that has existed since the earliest civilizations, but only emerged as distinct legal right after invention of the printing press. Before printing, the rights in words and symbols were perceived as a single property right that arose as soon as they were carved in stone, painted on skins, written on paper or fixed in another tangible medium of expression. Printing technology didn't change the concept of written works as property, but it triggered awareness of an important distinction -- the difference between the tangible object upon which written words were fixed and the intangible expression of a unique work created through the writer's selection and arrangement of those words. This distinction between physical property and intellectual property formed the basis of copyright law. Copyright was the first intellectual property right recognized in law as the technology revolution unraveled new strands in the ancient bundle of property rights.

Once you understand its history and how it works, copyright is actually quite straightforward. The first copyright was granted by a king to an early printer. It conveyed the right to own and use a printing press to reproduce and distribute various written works and established the legal rights related to the publication of written works. Of course, copying technology has evolved exponentially since the printing press was invented. But I contend that copyright law has marched along with the advancing technology to create, preserve, and protect the property rights of authors in their creations. In the United States, copyright law is authorized in the Constitution and spelled out in a federal statute, the Copyright Act (Title 17 of the United States Code). Copyright is internationally recognized as a basic human right essential to a civilized society. International copyright law, as embodied in treaties, organizations, associations, tribunals, laws and agreements, plays an increasingly important role in a changing world by protecting the rights of individual human beings to property, prosperity, access to information, and freedom of expression.

Since the advent of the internet, there have been wild and misguided claims that copyright law is outdated and that information wants to be free. Such claims are simply not true. You critics of copyright are really asking: "Now that it's cheap and easy, isn't it OK to steal words, music and art?" And I repeat that the answer is no. Copyright infringement is theft, pure and simple. Copyright owners are just as entitled to be protected by the law as are the owners of jewelry, bicycles, and soccer balls. Copyright law is clear and basic – words, pictures and sounds expressed in a distinctive way and written down or otherwise fixed in a tangible medium of expression are the property of the creator. "Thou shalt not steal," is a core tenant recognized in virtually every civilized society and it applies to the rights of authors today. No civilized society recognizes a right to steal physical property, even when it's easy to do so and tempting to rationalize. No civilized society recognizes the theft of intangible property, either. Copyright law has consistently adapted along with technology. Just as laws, both civil and criminal, provide penalties and sanctions for the theft of jewelry, bicycles, and soccer balls, copyright laws provides penalties for the theft of authors' rights. Stealing is stealing. And it's always been wrong.

Another question about trademarks for authors

December 15, 2014

Tags: Trademarks, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I’d like to know about titles and trademarks. I understand that titles cannot be copyrighted, but what about trademarks? I’d like to trademark the title of my book because it’s the first of a series of self-pub books and is the theme of motivational speaking I do. Is it possible to trademark my title? If not, can I trademark a concept belonging to me? Does that mean someone else can’t use this term in their title? If so, do I need to register my trademark somewhere like you do a copyright? Can I register it myself? What if I just use a trademark symbol without the hassle of registration. I hope you can shed some light on this perplexing topic. I need to go to law school!

A: Copyright protects the exact expression of ideas, but not the underlying facts or concepts. Trademark can protect underlying concepts and ideas if they identify the source of a product or service and help distinguish it from others in the minds of consumers. Trademark law really offers two kinds of protection – it protects consumers from being confused or misled about the source of products and services and it protects businesses from having the value invested in their brand and reputation from being ripped off by competitors. A good example from the field of publishing is the Dummies series. Consumers know what to expect when they buy a Dummies book and because the concept is trademarked, the publisher has a right to keep others from stealing readers by using a title that appends the words “For Dummies” to a subject.

Generally, you can’t get trademark protection for individual titles, but you can protect the overall concept of your series of books and speaking programs because the trademark tells consumers who you are and what you offer that is different from the offerings of other speakers and authors. Trademark protection might be possible for an individual title if it develops something lawyers call “secondary meaning” by becoming so closely identified with a particular work or author that readers have come to associate the title with a particular work. Gone With the Wind is an example of a title that has acquired secondary meaning.

From the description of your idea for a series of books and related programs, it sounds like your concept would qualify for trademark protection. It is permissible to use the TM symbol with any mark, even if it is unregistered. The R in a circle symbol, however, cannot be used unless the mark has be registered by the Patent and Trademark Office. While it’s possible to handle trademark registration yourself, it’s a much more complex process than copyright registration and there are numerous ways to get into trouble along the way. I routinely advise clients to save money by registering their own copyrights, but I almost always advise that trademark registrations be handled by an experienced intellectual property attorney.


Does an editor have a copyright in my article?

December 8, 2014

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, IP Law, Intellectual Property, Copyright Registration, Copyright Office, Form GR, Form TX, Editing

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I sent an article query to a major woman’s magazine. To make a very long story a little shorter, the editor liked the idea, then convinced me to turn it into a personal essay, and she added some good stuff to it. But it took so long for it to get anywhere at the magazine that after, a couple months I sent it to a news magazine. The first magazine had it for about five months when the second called and said they wanted it. I told the second editor about the first magazine and said I'd have to see and get back to her. I informed the first editor that another publication wanted it. I told her that I was happy to have her magazine publish it, but I'd need to know this week. She acted quite outraged and hinted that because she gave me the idea for my essay she somehow co-owns the copyright. Is she being ridiculous? I hope so.

A: She is wrong! The editorial process does not give the editor an ownership stake in the copyright or the right to sue for infringement. A joint copyright must be intended from the beginning. This is still your work. She had ample time to push your essay through the editorial decision making process and she took too long. You had every right to submit your work elsewhere, even if it included her editorial enhancements.

To be on the safe side, though, you should register your copyright in the published version as soon as it comes out. If you have other published articles from this year to register at the same time, you can register all your articles for the same fee. When registering multiple published articles you use a form GR in addition to Form TX. It’s not difficult, but registration of published articles from periodicals can’t be done on line. http://www.copyright.gov/forms/formgr_tx.pdf. The effort is well worth it.

And speaking of registering your copyright:

Q: I have heard about a “poor man’s copyright” where you seal your manuscript in an envelope and mail it to yourself. Is this a way for writers to protect themselves?

A: That is a common myth. Real protection comes from registering your copyright, which is a fairly straightforward procedure. The United States Copyright Office has a wealth of information about how to get this done. http://www.copyright.gov. All authors should get to know this invaluable site.



When the publisher doesn't pay

December 2, 2014

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property, Collecting Overdue Fees, Small Claims Court

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: A magazine owes me several thousand dollars and hasn't paid. I'm afraid that the publisher is experiencing major money problems. Do you think I should sue for my money? Can I go to small claims court?

A: A lawsuit is certainly one way to get your money, although I would advise it only after you have exhausted your other options, such as requesting intervention from a writers organization. When all else fails, though, litigation is something to consider. Sometimes the credible threat of a lawsuit will precipitate payment. Often the actual filing of a suit brings about a settlement. Sometimes a trial must be held. If you are going to threaten litigation, though, you should be prepared to go ahead. If you aren't ready, willing and able to sue, don't threaten. This means that you should carefully evaluate the potential for litigation at the first sign of trouble. Your collection strategy will be dictated in part by this evaluation.

Whether or not small claims court is practical for you depends on a variety of circumstances such as exactly how much you are owed, where the magazine is located and where you live, how strongly you feel about the situation, and how much time and effort you are willing to invest. Small claims courts are state courts and the rules vary from state to state. In most small claims courts there is a ceiling, called the jurisdictional limit, on how much can be recovered. The figure varies widely from state to state.

Most states require a small claim to be filed in the jurisdiction where the defendant is located. In New York, the suit must be filed in the same county, city or township where the defendant has a postal address. This means that if you live on the West Coast and wish to sue a Manhattan-based magazine, you'll have to file your suit in the small claims court in New York County, which is a division of the Civil Court of the City of New York. You can have someone file on your behalf, but you'll eventually have to appear in court yourself. So, if you live near New York and can appear in court easily, small claims court can be an effective way to get your money from a New York publisher. But if you live far away from the publisher or are owed more than the jurisdictional limit, then it's a much less practical option.

Something else to keep in mind is that even if you win a judgment, in small claims court or another court, you still have to collect it. If the magazine is, as you suspect, tottering on the brink of insolvency, winning in court may not get you any of those dollars you are owed.

Using trademarks in fiction.

November 24, 2014

Tags: Trademarks, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I am writing a novel and was told by an editor that I must remove the words “Ford,” “Greyhound,” “Chrysler,” etc. or be prepared to fork out royalties. I've never been told this before, and don't know what to do. I've researched trade name law but can't find anything pertaining to this in particular. If I'm using say, “Ford,” for example, as simply stating what it is my character drives, (i.e. Ford pick-up, etc.) does this pose legitimacy to said editor's advice? Any information you can share is most sincerely appreciated.

A: This editor is way off base. Of course you can write about trademarked products in your fiction. What the trademark protection prevents you from doing is marketing your own automobile under the brand name of another or using the trademark in commerce or advertising without identifying it as a registered trademark. Your proposed use is legally acceptable and the editor is incorrect. Which leads me to ask just how credible this editor is about publishing issues. Is this someone you plan to do business with? If so, please be careful.

One point to consider -- most of the time when you write about something that has trademark protection you should capitalize. That's courteous and correct. You do not need to use a trademark symbol in editorial copy.

Termination of contract because of breach

November 17, 2014

Tags: Breach of contract, Author Law, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: My publisher has violated our contract in several ways. The most serious problem is that royalty payments are always late. On two different occasions, the payments were not enough and I had to raise a fuss in order to get what was owed me. The publisher is not marketing the book as aggressively as he could. Is there any way I can get out of this contract?

A: The first step is to consider diplomatic action. Talk to your agent if you have one. She should be able to apply pressure to the publisher.

If you seek a legal solution, you should be aware that the publisher must usually fall far short of its contractual obligations before the author can terminate or rescind the contract. A court will generally permit termination only in the event that the licensee has committed a material breach of the publishing agreement. Courts define a material breach as a breach of so substantial a nature that it “affects the very essence of the contract and serves to defeat the object of the parties.” The breach must, in fact, constitute “a total failure in the performance of the contract.” This is a high standard.

In various cases, courts have applied the above test and concluded that delays in royalty payments and certain short falls in amounts paid do not amount to a material breach. However, while a publishing agreement can rarely be terminated entirely, there are circumstances when the high standard for a material breach does not apply. Furthermore, even though you are might not be entitled to terminate the contract, you may be entitled to damages for the publisher’s breach. Accordingly, it is best to consult a knowledgeable attorney who can review your contract and the facts of your case.

The trouble with "standard" contracts

November 10, 2014

Tags: Author Law, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Do you have a standard collaboration agreement for me to use? I’m going to be ghostwriting a book for a well-known doctor.

A: I am often asked to provide a “standard” contract for one purpose or another. Sometimes I’m asked to look over a particular clause and ask how it can be adjusted to suit the writer’s needs. My reply in these cases is the same – there’s no such thing as a standard contract. Each contract is an agreement between two parties that is enforceable by a court and it’s essential that it reflect the reality of the relationship between those parties.

Any contract must be evaluated as a unified whole. It’s a dangerous practice to tinker with one part of a contract without making sure that other parts aren’t affected or that other parts don’t contradict the changed clause. For this reason, I always insist on seeing the entire contract before commenting on any part of it.

As to the adaptation of a “standard” contract to an individual situation, I am reluctant to recommend this practice to writers, especially with collaboration agreements that present particularly challenging legal complexities. In my experience, collaboration agreements can cause more problems than any other type of publishing contract. They should be carefully drafted so that they reflect the true intentions of the parties and use legally correct language. Legally correct language is especially important in the area of copyright ownership and transfer, an issue that often comes up in collaborative projects.

There’s nothing wrong with saving effort and money by starting out with a form agreement or attempting to adapt someone else’s contract. But it would be a smart investment to have your final draft reviewed by a capable attorney before signing it. A modest legal fee upfront beats paying large fees later to untangle the mess that a do-it-yourself-contract can create.

To paraphrase an old saying: “The writer who acts as her own lawyer has a fool for a client.”