Sallie Randolph, Author and Attorney

Ask Author Law

What constitutes a revision?

March 28, 2015

Tags: Author Law, Contract Clauses, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trade Book, Revision, Ebooks, Grant of Rights, Literary Agents, Subsidiary Rights

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 editor recently approached me about a doing a revision of a trade book I wrote for her several years ago. But when I found out that the “revision” involved nearly doubling the size of the book and substantially changing the tone, I declined. Now the editor has hired another writer to do the “revision.” The new writer is going to share the copyright with me, get a substantial advance and then get half of my royalties when it earns out. What can I do?

A: Your question raises several issues that revolve around the revision clause of your contract. You should look at that clause to determine whether your editor’s “revision” and the deal with the revising writer is consistent with your publishing contract. Unfortunately, a broad revision clause is an invitation for the publisher to select to a collaborator for you who will share your credit, your copyright and your royalties.

The revision clause will dictate what amount of work may qualify as a revision, when the revision can take place and how the process will be handled. If revision is undefined in your contract, your editor will have some latitude in arguing that her plan is a revision. Ideally, however, your revision clause will include a definition of revision that caps the amount of new matter at no more than 25%. You should address this point when you negotiate the any future contract. If your editor is suggesting changes outside the scope of a permissible “revision” in your contract, you should bring this to her attention. If on the other hand, you have a broadly defined revision clause, then a major overhaul of your book is probably within their rights.

Another issue is copyright ownership of the newly-added material. The ownership of material added by the revision is less likely to become an issue if the amount of material added is small (i.e. a true revision). The issue becomes more complicated when a contract has an overly broad revision clause that permits a publisher to double the size of the work. But again, you must start with the contract - new material added to the book by a revising writer will either belong to the publisher (if the revision is a work made for hire/assignment) or the reviser (no work made for hire/assignment).

Your question also raises the issue of authorship credit. Some revision clauses are silent on the issue, while others give control to either the publisher or the author. Obviously, an author would want the contractual right to sole credit for his work, even if another author is hired to do a revision. In addition, look for a provision that permits you to withdraw your name if you don’t like the book.

The final issue is how you and the revising author will be paid. The revision clause will provide (some more clearly than others) how the payment will be made to a person hired to revise the work in the event that you decline to do so. Some contracts provide for sharing of royalties (on a pro rata basis or by a simple split). Others provide that the publisher will deduct the “actual cost of preparing the revision” from the royalties due to the author. In the latter case, the revising writer is paid a simple fee that will probably have to be earned out.

After looking at your contract, you’ll find that either your editor’s plan is within the contract or it’s not. If it’s not, or the clause is ambiguous on any the substantial issues, you should contact your editor, your agent, or your attorney to attempt to resolve the matter. If nothing else, be prepared to address these issues in your next negotiation.

Where do you get these questions? Do you make them up? It seems like you are biased.

March 13, 2015

Tags: Bias, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors

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: Where do you get these questions? Do you make them up? It seems like you are biased.

A: These questions come from many sources. Some have been asked at writers conferences or classes where I have presented. Many have been updated from a column I wrote for many years in the newsletter of the American Society of Journalists and Authors. A few have reached me via Twitter. And some are composites of common questions that come up often. I guess you could say that those composite questions are “made up” in the sense that they were not directed to me by a single individual. But all are definitely questions that I have been asked. Most questions have come from writers, but some have come from those who disagree with my advice.

When I decided to begin blogging and tweeting a few months ago I decided to use this Q and A format as a way to address common legal issues faced by writers, authors, freelancers and other “content creators” i(in the parlance of today). Law is a second career for me after many years as a journalist, freelance writer, book author, and writing instructor. I went to law school with the express intention of learning how to represent my fellow writers and that is where my law practice is focused. And yes, I freely admit to a pro-author bias. I am a staunch supporter of authors’ rights and firmly against copyright piracy. I definitely believe that copyright law, although not perfect, remains relevant and important today.

I cannot answer questions personally via email. If you have a question for me, the best way to ask it is in a comment below. (Comments are moderated and I don’t encourage general discussion.) As I become a more experienced blogger, I will try to set up a contact area on this website so you can submit questions directly. In the meantime, I have a backlog of questions to answer. Thanks for asking.

More Copyright Bunk

March 4, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright Myths, Publishing, Books, Bunk, Contracts, IP Law, Intellectual Property, Piracy, Infringement

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: Isn’t it true that copyright lasts too long and that it gets in the way of the free flow of information? It seems to me like big companies use copyright as another way to be selfish and greedy.

A: There have been wild and misguided claims that copyright law is outdated and that information wants to be free since the advent of the internet. Such claims are simply not true. Many 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 say that the answer is “no.” Copyright infringement is theft, pure and simple. 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, not the public.

Copyright owners give permission for the use of their work in a variety of ways. Many authors, for example, license their work to publishers or publish their books themselves and make money from sales. Some authors sell millions of books and become wealthy. For most, however, the income is modest. A few authors choose to their work available for free, and that’s fine. But the pricing decision is rightfully up to the author, not the reader. The same concept applies to music and movies. Musicians and moviemakers have the right to decide whether their work should be free or not.

"Thou shalt not steal," is a core tenant recognized in virtually every civilized society and it applies to the rights of copyright owners 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. Just as laws, both civil and criminal, provide penalties and sanctions for the theft of tangible property such as jewelry, bicycles, and soccer balls, copyright laws provide penalties for the theft of creators' rights. Stealing is stealing. And it's always been wrong.

So please don’t buy into the myth that “information wants to be free” or that it’s OK to help yourself to anything on the internet. Don’t be misled into thinking that piracy is noble. That’s all copyright bunk!

Don't buy in to copyright bunk!

February 24, 2015

Tags: Copyright Myths, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Freelance Writing, IP Law, Intellectual Property, Manuscript

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 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: No, no, no! The “poor man’s copyright” is a common myth that’s been around forever. You already own the copyright in your manuscript and have owned it from the moment your work was fixed in a "tangible medium of expression."

Additional protection comes from registering your copyright, which is a fairly straightforward procedure. Registration is not required, but it is a great idea for many reasons. I’ll cover reasons for registration in a future post. I'm keeping this one short because this myth really bugs me and I want to be blunt. I also stayed up too late watching the Oscars and I’m behind.

The Copyright Office has a great website, http://www.copyright.gov. Get your information there and don’t buy in to copyright bunk, especially this tired old myth.

Who controls the rights to my books when the publisher is long gone?

February 17, 2015

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

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 two young adult fiction books years ago (in the early eighties) for a flat fee on a work made for hire basis. These two books are long out of print and the publisher is out of business. I have two problems. First, how can I get the rights to these two books back? And second, the contract I signed called for me to write a total of six books under the same terms. The contract also said they were to be my “next” six books. If publisher is out of business can I forget about the other four books? The first publisher was bought out by another publisher and that second publisher has faded from the scene.

A: Let’s talk about your second question first. Since the publisher is no longer in business and never asked you to produce the last four contract books while it was still publishing, it is not possible for you to “perform” on the contract. So this particular contract clause is not enforceable and I wouldn’t worry about it. Even if the first publisher were still in business, if years have gone by without the publisher requesting you to write the next books a court would be reluctant to enforce a contract that unreasonably restrains your right to ply your trade.

As to getting the rights back to your first two books, I would need to examine the contract for “belt and suspenders” language in the work made for hire clause. A contract that simply says the work is considered as a work made for hire is probably not valid. That’s because books (except textbooks) are not among the specific categories qualified as work made for hire under the copyright law as it was substantially revamped effective in 1978. If, on the other hand, the contract says something like “in the event that the Work is ever held not to be a work made for hire, the Author hereby agrees to assign the copyright to the Publisher,” then the original publisher may indeed be the copyright owner. Assuming a lack of belt and suspenders language, the work made for hire language is not valid because your book isn’t a covered category under the law. The next question is if the contract didn’t convey the entire copyright to the publisher, what rights did the publisher acquire? Lawyers don’t agree on this and there are no definitive cases to guide us, so the best we can do is make an educated guess. My guess is that a court called upon to interpret such a contract would construe it in a light least favorable to the publisher and would say that the publisher acquired the right to publish the book, period. Once the book is out of print and the publisher defunct, the rights would naturally revert to the author.

Very often the legal implications of a decision are something of a gamble based on an analysis of the risk. In this case, your risk is pretty low. The publisher who might try to enforce any rights under that contract is long gone, and, even if someone unearthed that old contract and tried to hold you to it, I doubt that the courts could enforce it. So I’d say that you are reasonably safe. The only potential problem I can see is if you try to license those two old books to a new publisher, you might be asked to warrant that the rights are clear. If you decide to try to get those books published, you would be wise to run your new contract past an attorney. In fact, you’d be wise to run any book contract past an attorney or agent.

Can I use radio recordings for articles and other projects?

February 9, 2015

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

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 host a local radio show and I'm wondering if the interviews I do of guests on my shows are owned by me, to reproduce, or if I need to get permission when I want to use part of that interview in a written piece?

A: Just like you own a copyright in your own words from the moment they are “fixed in a tangible medium of expression” your guests own the copyright in their words when the show is recorded, which constitutes fixation. So the answer to your question is that the guests’ comments are owned by them, not by you, and the normal permission requirements would apply.

A good practice would be to get every guest to sign a consent form before the show, giving you permission to reproduce copies of the broadcast and to use the interviews for other projects. (It’s even possible that your station already has consent forms signed by guests). If you use phone interviews, obtaining written consent is less practical but you could make it a practice to ask for consent and record it prior to the interview. Verbal consent is a defense to copyright infringement, but the problem is proving that you had the consent. A recording where you explain your intended uses of the material and get consent would provide proof.

When you want to use material from your archive and you don’t have proof of consent, then you should follow the same procedures for use of the material that you would if you wanted to use someone else’s written material. Some of your proposed uses could be brief quotations that might constitute fair use. Or you might paraphrase and attribute as an indirect quote. Other uses would require consent. If so, you should contact the interviewee and ask for permission. If you get verbal permission, be sure to make notes of your conversation or record it.

You may be wondering why you didn’t need to get consent for the original interview. That is because by participating in the interview the guest is giving you implied consent to broadcast and record the interview. That implied consent would probably also apply to rebroadcasts and other radio uses of the interview but wouldn’t cover use in written pieces.

Can I sing my song parodies in an audio book?

February 2, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Parody, 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 wrote a nonfiction book on family finance in which I urged consumers to use humor to deal with financial stress. One of my suggestions is to sing in the shower using made up lyrics to popular songs. I gave three examples in my book by including the lyrics I wrote along with a suggestion that the lyrics be sung to the tune of such and such a song. Now my publisher is going to put out an audio version of the book and I’m going to be doing the reading. Can I sing the three sample songs in my book or should I read them in a regular voice?

A: The legal answer is that you probably have a right to perform your songs without the permission of the copyright owners. The practical answer is that you would most likely have to defend yourself in a lawsuit if you exercise that right.

The prudent thing would be to read the text directly from the book without breaking into song, even though parody is a covered exception to copyright infringement as a fair use. In fact, there is a supreme court case involving a recording by the rap group 2 Live Crew of the hit Roy Orbison song “Pretty Woman,” morphed by the rappers into “Hairy Woman,” The court held that even the recording of most of the words and all of the melody is permissible as parody. So you would certainly have a fair use defense to your use of the three song parodies in your audio book.

The practical problem is that music copyright owners are both vigilant and litigious and you risk being sued. Even though you would have, in my opinion, an excellent defense, you would probably have to pay some very high legal fees to win your case. The result would be that you’d likely lose more money winning than it would be worth.

If you have your heart set on performing the songs, you could always try to obtain permission to use them. You’ll most likely be asked for a licensing fee. For information on how to obtain such licenses contact the performing rights societies ASCAP, BMI, and the Harry Fox Agency. All have helpful web sites.

When and how can I recycle my own content?

January 27, 2015

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

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 group of other writers and I were having a discussion about rewriting and selling stories if you had sold all rights to previous versions. To what extent must you rewrite to avoid copyright infringement? I have looked and asked in vain for a definitive answer -- or even an authoritative and marginally helpful one. Are you familiar with any relevant statutes or case law? I do understand that in one case copyright infringement occurred on the basis of just two distinctive words.

A: The reason you’ve had trouble finding a “definitive answer” is that one doesn’t exist. This is another question to which the answer is “it depends.” It depends, in large part, on whether the particular all rights contract you signed had the effect of transferring the copyright to the publisher. That could have happened in a work made for hire agreement or in an all rights agreement that specifically assigns the copyright.

Absent a clear assignment of copyright, an all rights contract still leaves you as the author and owner of the underlying copyright. True, that underlying copyright is a mere shell of its former self, but it does leave you with the right to create a derivative work, a work “based on” the original. When you have the right to create a work based on the original you can revise fairly lightly and probably be OK, although it would still be wise to make your revisions as extensive as possible.

If, on the other hand, you did convey the copyright to the publisher, then you have only the same fair use rights as anyone else. To make fair use of your own work, you can quote briefly from it and go back to and quote from the same sources, but you should write the rest of the article from scratch.

To avoid this problem altogether, you should avoid signing all rights or WMFH contracts at all. You can tell the publisher who proffers one that you’ll be happy to license the rights the publisher reasonably needs at a fair price, but that all rights aren’t available. If it’s too late because you already signed all the rights away, you can still avoid a problem by getting the publisher’s permission to license reprints. If the publisher doesn’t care, you’ll probably get permission. Consent is a complete defense to copyright infringement, so you change as little or as much as you wish. Even verbal consent is OK, although it would be better to follow up on the verbal consent with a letter thanking the publisher for giving you permission and still better to send the publisher two copies of a letter agreement that asks the publisher to acknowledge the consent by signing and sending back to you. In this case, enclose as SASE to make it as easy as possible for the publisher to do what you want her to do. If you intend to rely on the verbal consent, make a note of the name of the person you talked to, the date, the time, the number called, and the gist of the conversation. Keep those notes in your records. If it’s legal to tape a phone conversation in your state, do that too.

You should also consider the ethical implications of your question. Some methods of recycling an article may be completely legal but ethically ambiguous. If you have doubts, getting permission is probably the best method.

What to do if you get sued

January 19, 2015

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

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 local real estate broker hired me to write some columns under his name for a weekly newspaper. He was supposed to pay me $300 per column, on delivery. He was going to get the byline and own the copyright, but it was a ghostwriting job and he supplied the subject and the expertise, so those terms were acceptable to me. I did one column and delivered it. He paid me $300 and said he liked it. I did two more columns. He paid another $600 and asked me to finish as many as I could so he’d have a stock of columns all ready to go. I finished and delivered another seven columns and sent him an invoice for $2,100. I’m not sure what happened between him and the local paper, but the column didn’t appear when he had told me it would. He didn’t pay the invoice. I sent a second invoice, which he also ignored. I tried to call his office, but he didn’t return my calls. During this period I got several other assignments, so I moved on and didn’t follow up further with him. A few weeks went by and then, to my absolute shock, I received a computerized form notice from the municipal court that I was being sued for $1,000 by the broker. I tried to call the broker again, but he still didn’t return my calls. I’m totally outraged and have absolutely no intention of paying him any money. He doesn’t return my calls. I’m tempted just to throw this notice away. He can’t prove anything against me, so why should I let him get away with this? What do you think?

A: I share your outrage, but you can’t just ignore this. It’s an absolutely awful feeling to be the defendant in a legal action. You’re put in a position over which you have very little control. You have to show up on someone else’s timetable and answer to allegations that someone else has made. It’s especially awful when the allegations against you are without basis, as these seem to be. If you are like most of my clients who have been sued, you’re furious, upset, and afraid. This is completely understandable, and I sympathize. But you still need to deal with it.

You didn’t identify the state where you live, but it sounds like you’re being sued in a small claims court. The following suggestions are based on that assumption. If you have any reason to believe that the notice you’ve received is NOT a small claims summons, you should consult a lawyer promptly. If it’s definitely a small claims case, you can defer your decision on whether to get a lawyer until farther along in the process.

I’ve found that defendants who survive the best are the ones who manage to channel their anger productively, detach as much as possible, and prepare for their defense methodically. I know this is easier said than done, but you should try your best to follow a process in which you verify the basics, gather information, then make and follow a plan, while remaining flexible and able to adapt to the various curve balls that may come your way. You’ll do best and you’ll feel less helpless if you take a proactive stance, rather than an emotional, reactive one. Here’s where being a writer can be a major advantage. See if you can treat this as a writing project and bring your professional skills to bear. Even if you never write about this experience, a journalistic approach can help you get through it.

The first step is to verify the basics. Small claims courts are state courts, so the rules, procedures and applicable law can vary considerably from jurisdiction to jurisdiction. It’s not unusual for these courts to use a computerized summons served by mail. That’s the case in New York, where I practice. Examine the notice you received. Make sure it’s really from a court. Some collection agencies and lawyers send letters threatening legal action that resemble court documents.

At a minimum, it should give you instructions on when and where you should appear and some idea of what you’re being sued for. Any court dates or deadlines important here. Then you should check with the court to make sure you understand what is expected of you next. Many courts discourage telephone contact or use frustrating voice mail, but you should persevere. Often the best approach is to visit the court in person -- both to confirm the basics on your notice and, perhaps more important, to get a sense of the place and what happens there. If there is a session scheduled before your court date, attend as an observer. Sit up front where you can see and hear what’s going on.


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.