Ask Author Law

Is it OK to use an Amazon reader review in a blurb?

August 21, 2016

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Right of Publicity, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Libel, Fiction, Back Matter, Reviews, Amazon, Advertising

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. Questions may be sent to authorlaw@yahoo.com.

Q: I belong to an online discussion group for independent authors who publish their own novels. Right now there is a discussion going on about whether it is a copyright violation to use an Amazon reader review in a blurb for another book by the same author inserted in the back matter at the end of the book. Some people say that quoting the reader review is fair use and others say it’s not. Someone also pointed out that it might be a violation of Federal Trade Commission rules. What’s the right answer?

A: This isn’t really a copyright issue. The most important legal question is the reviewer’s right of publicity. Copyright is secondary at best.

The right of publicity is the right of an individual to control the commercial use of his or her name, image, and reputation. It is a violation of the right of publicity to use a person’s name, image, or reputation for commercial purposes without consent. Using a person in an advertisement, product endorsement, or on commercial goods without specific permission is a clear and actionable violation of his or her right of publicity.

In the case of a book the right answer to your question relies on an important distinction in the nature of the use -- whether it is editorial or commercial. Books are editorial in nature and therefore exempt from most right of publicity concerns. Editorial use is not commercial use, even if a writer or publication earns money in the editorial process.

Beyonce provides a classic example. The first amendment protects an author’s right to write about her in such editorial works as novels, non-fiction books, news stories, and articles. Such use of a person’s name or image does not violate her right to publicity. It would be fine, for example, to have a character in a novel attend a Beyonce concert or profess an opinion about Beyonce in dialogue. However, Beyonce’s right of publicity prohibits the use her name in advertising, endorsements, or other commercial uses.

The right question to be asking in this case is whether the use of the Amazon reader review is editorial or commercial. The book itself is definitely editorial, but using the reader review in the back matter of one book to promote the author’s other books constitutes, in my opinion, an advertisement. Therefore, it’s essential to have the consent of any individuals used in promotions, ads, and blurbs. Further, that consent should be in writing. It is definitely not OK to copy a reader review off Amazon and paste it into the back matter – or to use it for promotional purposes anywhere else.

Questions of copyright arise, if at all, in cases of posting anonymous reviews or excerpts from long reviews. Such posts without consent would infringe the reviewer’s copyright unless there is a legitimate fair use defense. Fair use analysis is complex and lawyers can disagree, but I don’t think such use would be fair under most circumstances.

Writing about real people covered by long-ago newspapers: a risk/benefit analysis

July 11, 2016

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Infringement, Risk, Benefit, Plagiarism, Libel

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. If you have a question for this blog send it to authorlaw@yahoo.com.

Q: Thank you for the opportunity to ask a question. I really have no idea what I’m doing.
 
I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.
 
The story is compelling, and I would really like to retell it, but am unsure as to what I’m able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.
 
I would appreciate any guidance you might be willing to offer.

A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.

First comes the question of whether the articles are in the public domain. If so, you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed, copyright protection was extended for another 28 years. However, the term of copyright has been extended several times for most, but not all works that were renewed after 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. Here’s a link to the Cornell University copyright information website chart that can help you evaluate the copyright status of a work: http://copyright.cornell.edu/resources/publicdomain.cfm. You can also get excellent information on many copyright subjects from the Copyright Office itself. Here’s a link to a pdf about duration of copyright: http://www.copyright.gov/circs/circ15a.pdf. I’d like to add that the Copyright office is a terrific resource for copyright questions in general.

Even if you can’t determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis. Your own tolerance for risk along should be considered along with such factors as the vulnerability of your assets, insurance coverage, and business entity status.This is merely an informed guess and it is NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.

But (and isn’t there always a but?), you referred to plagiarism and that’s not the same as infringement. Plagiarism is an academic concept. Direct copying of someone else’s work without attribution to the source may be considered unethical in academic writing and journalism -- even when it’s not infringement. It’s a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.

You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words can’t injure them legally and you’re probably off the hook for defamation.

There is one other consideration. Dead celebrities in some, but not all, states, whose estates may still be reaping financial benefits from the use of their name and images could be a problem for you to write about. The right of publicity, as this is called, is unlikely to apply in your case. If you wanted to include Elvis Presley or Michael Jackson in your work, you might need to exercise some care. Even then, as long as you are not using their names in commercial endorsements, there is not a problem.

Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to “protect the innocent.”

All in all, my informal opinion ( not personal legal advice) is that you may proceed without a likelihood of legal consequences.

How far can I go in retelling a compelling story from a series of articles in a long-defunct newspaper?

June 1, 2016

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

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. Send questions for this blog to authorlaw@yahoo.com.

Q: Thank you for the opportunity to ask a question. I really have no idea what I’m doing.
 
I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.
 
The story is compelling, and I would really like to retell it, but am unsure as to what I’m able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.
 
I would appreciate any guidance you might be willing to offer.

A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.

First comes the question of whether the articles are in the public domain. If so you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed copyright protection was extended for another 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. The Cornell University copyright information website has a great chart that can help you evaluate the copyright status of a work at http://copyright.cornell.edu/resources/publicdomain.cfm. (see links to the right). You can also get excellent information on many copyright subjects from the Copyright Office itself. You can find a pdf about duration of copyright at: http://www.copyright.gov/circs/circ15a.pdf. I’d like to add that the Copyright office is a terrific resource for copyright questions in general. There is a link to the Copyright Office website at the right.

Even if you can’t determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis in combination with your own tolerance for risk along with such factors as the vulnerability of your assets, insurance coverage, business entity status etc. This is merely an informed guess and NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.

But (and isn’t there always a but?), you referred to plagiarism and that’s not the same as infringement. Plagiarism is an academic concept. Direct copying of someone else’s work without attribution to the source is considered unethical in academic writing and journalism even when it’s not infringement. It’s a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.

You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words can’t injure them legally and you’re probably off the hook.

Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to “protect the innocent.”

Who owns the copyright in this teacher's book?

May 11, 2016

Tags: Author Law, Writing, Sallie Randolph, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Work Made For Hire, WMFH

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 a third grade teacher who prepares many creative lessons for my students. I decided to write and self-publish a book about how to be a great teacher. I was telling some of the other teachers in the faculty room and word of my plans reached the principal. He stopped by my classroom and told me that the school district will own the copyright in my book because they are my employer. I am stunned. I have already invested a lot of money, time, and effort and I want to go ahead. But I am afraid that the school district will sue me if I go ahead. Can they?

A: My immediate though about what you should say to this misguided principal is not repeatable. He is wrong, wrong, wrong! I am outraged on your behalf. Sadly, many educators are ignorant about copyright. Unless writing books about teaching is part of your job description you are the owner of the copyright in your book from the moment you have “fixed” it in a “tangible medium of expression.”

Your principal is probably misunderstanding the work made for hire (WMFH) doctrine that creates two exceptions under United States copyright law for initial copyright ownership by the author of a work. The first WMFH exception to the rule that the author is the automatic copyright owner for works she creates is when an employee is expected to write as part of her job description.

Section 101 (1) of the U.S. Copyright Act (Title 17 or the United States Code) defines work made for hire as “a work prepared by an employee within the scope of his or her employment.” In the case where an employee writes as part of her job, the employer is considered to be the legal author and copyright owner. You were hired to teach, not to write books. Therefore, you are the owner of the copyright in your book about teaching.

You have also asked if the school district can sue you if you go ahead and publish your book. Unfortunately, it’s entirely possible for a misguided individual or organization to file a frivolous lawsuit. However, I doubt if your local school board’s legal counsel would agree to file. In your case, the risk of facing a lawsuit over this misinformation is low. Please don’t be discouraged by this principal’s ignorance of copyright law. Good luck with your book!

You might need that luck if you should decide to submit your book to a textbook publisher, however.That’s because of the the second definition of WMFH in the Copyright Act, “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101 (2).

Many academic and textbook publishers do try to obtain the copyright in authors’ works in their contracts. As a writer, you don’t want to sign a publishing contract with WMFH language unless you are truly willing to give up your copyright. There are a few legitimate reasons for publishers to own the copyrights, but, in my opinion, those reasons are few and far between and writers should avoid WMFH contracts whenever possible.




How do I send a DMCA takedown notice?

February 3, 2016

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

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 found a website that has posted actual copies of my articles without permission. I have heard about something called "Notice and Takedown." How do I do that?

A: The notice and takedown provisions of the DMCA offer copyright owners a way to protect their works online while limiting the liability of ISPs for copyright infringement. Notice and takedown requires you to police the Internet and search for infringing materials. If infringing material is found, you must submit a notification, under penalty of perjury, to the ISP's designated agent. The notification must:

• bear your physical or electronic signature, or that of your agent;
• identify the work that you claim has been infringed, or, if more than one work is infringed on a single web site, a representative list of the works at that site;
• identify the infringing material that is to be removed, and include any information necessary so the ISP can locate the material;
• provide your address, telephone number, and, if available, an email address, so that the ISP can contact you;
• state that you have a good faith belief that use of the material on the web site has not been authorized by you, your agent, or the law; and
• state that the information in the notification is accurate, and under penalty of perjury, that you are the owner of the copyright that has been infringed or that your agent who is filing the notification is authorized to act on your behalf.

If you fail to comply substantially with the statutory requirements, the notification will not be considered by a court in determining whether the ISP has the requisite level of knowledge to support a liability claim.

Upon receiving your notification, the ISP must promptly make a good faith effort to remove the infringing material from its network or disable access to the material. This is called “takedown.” The ISP will not be liable for any action based on the fact that the material was removed. The timely removal or blocking of the infringing material also means that the ISP will not be liable for monetary damages of you file an infringement action in court.

After removing the infringing material, the ISP must take reasonable steps to promptly notify the subscriber that the material has been removed or blocked. If the subscriber responds with a counter notification, the ISP must provide you with a copy of that response and notify you that it will replace the removed material or cease disabling access to it in 10 business days. Unless you notify the ISP’s designated agent that you have filed an action seeking a court order to restrain the subscriber from infringing your work on the ISP’s system or network, the ISP must replace the material within 10 to 14 business days.

The DCMA provides the subscriber to respond to the notice and takedown by issuing a counter notification. The counter notification must:

• bear the physical or electronic signature of the subscriber;
• identify the material that has been removed or blocked and the location at which the material appeared before it was taken down;
• state under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
• provide the subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is in another country, for any judicial district in which the ISP may be found, and that the subscriber will accept service of process from the you or your designated agent.

The DCMA imposes damages, including costs and attorney fees, incurred by the alleged infringer, the copyright owner, or the ISP against any party who knowingly misrepresents material facts in either the notification or the counter notification.

How to fire your agent

January 19, 2016

Tags: Agent, Agents, Agency Agreement, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Trademarks

Q: My agent sold my first two books, which are still selling well, but he hasn’t really done anything with my two most recent proposals. I get the feeling he has bigger fish to fry and that my books aren’t the blockbuster types he would prefer. I’ve decided that another agent might be better for me, but I’m not sure how to proceed from here, from a legal perspective. What do you suggest?

A: You should start with a clear understanding of the legal relationship between you and your present agent. Do you have a written agency agreement or a handshake deal? If you have a written agreement, it probably spells out how the relationship may be ended. For example, either party might be able to terminate upon written notice to the other. The contract might spell out the timing of such notice and, perhaps, specifics such as a requirement to use registered mail. So examine the contract and follow the specified procedure exactly. This is important even if your agent says it’s not necessary. It’s very important to be precise when dissolving a contractual relationship. This doesn’t mean you can’t talk to your agent ahead of time to reach an informal understanding. It just means that you should follow up by dotting all the “i”s and crossing all the “t”s. If you have no written agreement, you should plan to give your agent reasonable notice that you’re making a change and you should do so in writing so there can be no misunderstanding.

Be aware that the change you’re making is only for future deals. You will remain obligated to your first agent for any commissions and expenses related to your first two books. He will also probably continue to receive payments on your behalf and forward them to you after deducting what is owed to him. It may be possible to negotiate a different arrangement, but, if you do, be sure to get a written acknowledgement of the new terms from him. Since your books still generate income, the first agent will probably want to remain agent of record. In the future, though, when the income thins out, he might be agreeable to a change.

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.

Lucky author can publish a new edition of an old book.

December 31, 2015

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

Q: I am the author of a children’s biography that was published in 1965 by a publisher that has long since gone out of business. I didn’t know any better at the time, so I signed the copyright over to the publisher. The book has been out of print for years, but there was no reversion of rights or out of print clause in the original publishing contract, as nearly as I can recall (although I can’t find the original contract). There is now a lot of interest in the subject of that book because of a recent hit movie and the upcoming hundredth anniversary of one of the events in the subject’s life. I’d like to approach other publishers about a new edition of this book, but I assume I can’t because I signed away the copyright. What, if anything, can I do? Can I write a totally new biography? If so, what will it take to make it a new book that I can copyright in my own name?

A: You’re in luck. Your book was written and published under the old copyright law, which was changed in 1976, with the changes going into effect on January 1, 1978. Under the old law, a copyright had a term of 28 years and could be renewed for another 28. The new law eliminated copyright renewal and created a single term of the author’s life plus 70 years.

If your book had been published just a couple of years earlier, and the first term of the copyright had not been renewed by either you or the publisher, your book would have entered the public domain at the end of the 28th year and neither you nor the publisher would own the copyright. However, for works copyrighted between January 1, 1964 and December 31, 1977, the new and amended copyright law provides for an automatic 47 year renewal without any requirement that the renewal be registered with the copyright office. Your book, therefore, is still protected by copyright. Now the question is, who owns the copyright during the term of renewal. The law says that ONLY the author may claim renewal, and that’s you. The publisher, even if still in business, has lost all rights in the work.

You should definitely claim your renewal by registering it with the copyright office. To do that, obtain Form RE from the Copyright Office and follow the instructions. In order to properly fill out the form, you will need a copy of the original registration or the original registration number. To find that, you’ll probably have to search the Copyright Office records or hire someone to do it for you. There are copyright search firms that can do this quickly or you can pay the copyright office to do it for you, although this can take some time. The Copyright Office charges a reasonable hourly fee to search and most searches take less than an hour, but there can be a time lag before you get the search results. The private search firms charge more, but you can get results within a day or two. You can get more information about renewal of copyrights by calling the Renewals Section of the Copyright Office at (202) 707-8180.

Any author of a work copyrighted between January 1, 1964 and December 31, 1977 should protect the work by renewing the copyright registration. This is particularly important if the original copyright was assigned to the publisher or someone else, because only the author is entitled to renew and you can get those lost rights back by completing the renewal process.

Disclaimer: 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. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. (more…)

Is it legal to post a newspaper or magazine article of interest to members of a listserv discussion group?

December 23, 2015

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

Q: Is it OK to post a newspaper or magazine article of interest to writers on a listserv? This happened recently on a writers list I subscribe to. Some people said that it was all right to do so because, even though the article was protected by copyright, is permitted under the law as "fair use." Others said that writers should be especially respectful of copyrights. Someone posted the exact text of the fair use section of copyright law itself. Then there were arguments about the interpretation of the law. The debate got quite nasty as people called each other "pirates" and "copyright police." What's the correct interpretation of the fair use law on our listserv?

A: The short answer, in my opinion, is no, it's emphatically not fair use to post an entire article on line. Fair use is a widely misunderstood concept. Like the Bible, the text of a statute seems to allow people to read into it whatever supports their point of view. In our common law tradition, however, the statute is just a starting point. The law is also found in the court decisions interpreting the statute.

The case law about fair use clearly supports, in my opinion, the position that posting of full text material on the internet is almost never fair use. One of the cases where the photocopying of copyrighted material for educational purposes was held not to be fair was a case involving Kinkos, later upheld in the Michigan Documents case. In the listserv discussion, several members criticized the "copyright police" at their local FedEx/Kinkos copy shop. The reason Kinkos became such a vigilant enforcer of copyright law is because the company was a big loser in the case bearing its name -- the case that held academic coursepacks to be infringing. If the photocopying of limited numbers of articles and book chapters, even though for educational purposes, has been held to be infringement, I can't imagine that any distribution via the internet would be found fair, considering the sheer number of copies internet distribution makes possible.

The Kinkos and Michigan Documents cases are distinguished from the 2nd Circuit ruling in the Authors Guild v. Google case because, even though Google has scanned complete books, it only posts "snippets." While the posting of snippets was held to be fair use, the Authors Guild has announced that it intends a further appeal.

The thing that I found especially distressing about the listserv discussion of this issue was the numerous and vociferous complaints about the "copyright police" among a group of professional writers, writers on whose behalf author organizations devote a great deal of effort in promoting understanding and enforcement of copyright laws. If you want to share an article with members of your group, you can always post a link, but please respect the copyrights of fellow writers.

Ask Author Law is a Q&A blog about legal issues for writers. 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. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. (more…)

Am I an employee? My work-made-for-hire contract is not consistent.

November 30, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, WMFH, Work for Hire, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Articles, Non-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: I’m a full time freelancer who writes for many magazines and newspapers. I’ve just been offered a contract to write one article a month for a web site. It has a clause that says I am to be an employee and that everything I write is to be considered a work made for hire. Another clause says that I am an independent contractor. So, if I sign, what will my employment status be?

A: I haven’t seen the entire contract, but it sounds like this web site is trying to insure that it will both own the copyright and avoid responsibility for tax withholding, social security and other such obligations of an employer. WMFH is a tricky concept with two meanings under copyright law. It sounds like the contract was patched together by someone confused about copyright but trying to avoid paying a lawyer.

Whenever a contract is internally inconsistent, it could be subject to interpretation by a court if a dispute arises. In this case, I suspect the court would decide that the “employee” language is less significant than the “independent contractor” language. You might suggest that the language be clarified. If it isn’t, however, I don’t see this as being a big problem for you as long as you understand that you are giving up copyright ownership and won’t be getting any employee benefits.

You should be sure to include all income you receive from this website on your taxes, regardless of whether it sends you an IRS Form 1099. The website could come to the attention of the IRS if it has freelancers writing for it exclusively. Companies sometimes try to designate employees as independent contractors in a mistaken effort to avoid the responsibility for payroll taxes and insurance. As long as you are a true freelancer writing for a variety of publications, the IRS is not likely to consider you as an employee.

If you have any doubts about this website and its inconsistent contract, you may want to think twice about taking this assignment. That said, the legal risk to you is slight. The website could face legal problems, but if you keep good records, continue to write for other publications, and declare all of your income, you should be OK. If working for this website becomes a substantial part of your workload or if you think you should be entitled to employee benefits you would be wise to consult a lawyer.

A tongue-twisting contract term is bad for authors.

October 28, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Clauses, Accounting, Cross-collateralization

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: What is a cross-collateralization clause? I’ve been told to watch out for this, but I don’t know what it is.

A: Cross-collateralization, sometimes referred to as bucket accounting, is not good for authors because it lets a publisher make deductions from the income of one work for sums owing on another work. Such sums can be charges for the cost of alterations, permission fees, fees for revisions, overpayments, or an unearned advance. The cross-collateralization clause is unfair because it gives the publisher de facto insurance against an unsuccessful project by permitting recovery from funds due to authors on other projects.

Here is how to spot these clauses, and what to do when you find them. First, a cross-collateralization clause is not likely to be labeled as such. It may be referred to as “Over Payments,” “Deduction of Sums Owing Under Other Contracts,” or “Joint Accounting.” Look for any language in the contract that authorizes the publisher to deduct money owed to the author for other works.

If the publisher refuses to delete the provision entirely try a compromise position: 1) that no deductions for sums owed under other contracts be made from an advance owed to the author, but rather, any deductions be made from the future income stream; 2) that unearned advances not count as sums owed to the publisher.

Does my catchy title present a trademark problem?

September 23, 2015

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

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. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, leave a comment below or send it to Authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.

Q: I'm writing a book with a catchy, appropriate title and just discovered that an organization in another state uses the exact same words as the name of their ongoing workshop. In their promo literature they have a tiny "sm" (service mark) next to their name. Am I out of luck? Does this mean I now have to come up with a new title or ask this organization to give me permission to use their workshop program name as the title of my book?

A: This is one of those questions to which the answer is a resounding “it depends.” There are many factors to consider as you decide what to do. The answer depends on whether those looking at the book would assume sponsorship by, endorsement of, or affiliation with the organization. You should ask yourself whether people buying your book might assume that you represent or support the organization and its point of view. If the answer is yes, then you should probably find another title or get the organization’s permission to use the title. Another possibility is to use the title with a disclaimer that says your book is not associated in any way with the organization.

If your book is going to receive nationwide distribution and the subject is similar to the subject of the organization’s workshop, there could very well be a potential problem of trademark infringement and you would probably be wise to change the title. If your book, however, covers a different topic from the organization’s workshop or the organization operates in only a small geographical area and isn’t widely known outside of its home turf, then you might not have a problem. In that case you would be wise to ask an attorney to have a trademark search performed. Such a search will identify whether the organization has taken steps to register its service mark at the federal level for workshops or services that might be similar to the topic of your book. If it has taken such steps, you’ll probably decide to change the title in order to avoid a potential trademark infringement problem.

A third factor to consider is how common and generic your proposed title is. If it’s distinctive and closely associated with the organization, you should probably not use it. If it’s based on a common phrase and accurately describes your book’s content, it’s less likely to be a problem. If you really want to use this title and you’re not confident about the potential implications, you might want to confer with a trademark attorney. (more…)

Book Rights to License or Keep

September 12, 2015

Tags: 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. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Ask Author Law is published for information only. Answers are not legal advice. Asking and/or answering a question does not create a lawyer/client relationship. The solutions to legal problems depend entirely on the specifics of the situation, so any writer in need of legal advice should consult privately with a qualified attorney.

Q: How do I decide what rights to grant to a book publisher and what rights to hang on to?

A: “Very carefully” is the tempting flip answer, but seriously, there isn’t really a standard response. If you have an agent, the agent will probably have you retain more rights that you will probably want to keep if you’re negotiating your own contract. In general, a trade publisher will expect, at a very minimum, the primary rights to include exclusive hardcover book publication rights in the English language in North America. The publisher may reasonably expect other exclusive primary rights as well, especially trade paperback and very possibly mass market paperback rights. The publisher will also rightfully expect certain exclusive subsidiary rights, particularly book club rights. The publisher should NOT reasonably expect to get the copyright, so be alert for any unfairly inclusive language such as all rights, work made for hire, or assignment of a copyright.

While primary rights are almost always exclusive (meaning only the publisher can legally exploit them), subsidiary rights can be exclusive or non-exclusive. Which rights you license to the publisher and which ones you retain are best determined by considering who is in the best position to exploit the rights on your behalf and the proposed rate of compensation. If the publisher is likely to market movie rights aggressively, for example, and you don’t have any way to reach Hollywood markets yourself, it’s probably best to allow the publisher to act as your agent. If you plan to engage an entertainment agent, you may prefer to retain those rights.

Another factor in your decision will be the proposed split of income between you and the publisher. A 50/50 split for book club rights is traditional, but with most other subsidiary rights (subsidiary rights are, by definition, all rights that aren’t primary, and vary from contract to contract), the publisher is really functioning as an agent, so the split should reflect that approach. You might have to pay an agency commission of 25% for the marketing of foreign rights, for example, so a 25/75 split is probably appropriate. It’s been my experience, though, that many publishers expect an unrealistic “commission” for the exploitation of subsidiary rights, sometimes approaching 95% for certain electronic rights. Such a lopsided split is not really fair.

Although I don’t like to generalize about contracts, a good practice would be to try to retain as many rights as you can unless you really think it’s to your advantage to let the publisher have them. When negotiating, it’s often useful to ask the publisher what rights it really needs. The publisher’s boilerplate list of subsidiary rights can be usually be pared down and/or the split improved if you take this approach. (more…)

Finding the Right Lawyer

April 30, 2015

Tags: Attorney, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Lawyer, Law, Legal, Rights, License

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 answered a question for me and suggested that I might need a lawyer to handle my problem. The trouble is that you don’t make courtroom appearances in my state and I need someone to file a lawsuit on my behalf. Do you have any suggestions about how to find a good lawyer? Do I really need someone who understands copyright law? My neighbor is a corporate lawyer and I have a cousin who does divorce law.

A: You wouldn't go to an ear, nose, and throat doctor for a skin disorder, or to a heart specialist for heartburn. Yet many writers don't realize that attorneys aren't one-size-fits-all legal problem-solvers, either. For contract and other general matters involving publishing law, look for a lawyer who focuses on intellectual property or publishing matters. Litigation is its own field, however, so if your matter will involve arbitration or courtroom proceedings, a litigator familiar with publishing disputes is probably your best bet. You may want to ask a publishing attorney if he or she ever teams up with litigators.

How can you find a good attorney? You could ask your family lawyer for help in finding someone. A good lawyer understands his or her own limitations and is often willing to help find a well-qualified colleague. Word of mouth is a tried-and-true (and often best) source. Begin by asking friends in the writing or publishing business, or contact writers' or other professional organizations to which you may belong. Local and state bar associations can usually give you a lead to a good lawyer, often with an initial consultation at a reasonable rate. There are also some excellent publishing law bloggers you could contact.

When you retain an attorney, you may need a written agreement outlining the matters he or she will be handling for you along with the firm's fees and billing policy. Attorneys have various ways of charging. For some it is a straight hourly rate and others charge a flat fee. I prefer a hybrid arrangement in which I charge a fee based on my hourly rate, but capped at a certain number of hours even if the matter takes longer. It's reasonable to ask questions up front such as how quickly you can expect phone calls to be returned; how often you'll receive written or verbal updates; and the overall time frame within which you can expect the legal work to be performed or the case to proceed.

What if you and your attorney aren't getting along? Lay your cards on the table as soon as possible. Simple communication problems can often be resolved just by talking about them. If you decide it's necessary to terminate the relationship with your attorney entirely, you have an absolute right to do so. Just be sure to convey your decision in writing and ask for a copy of your complete case file.

Are you unnhappy with what you think is an unfair fee? Local bar associations often provide mediation assistance in resolving fee and other attorney-related disputes. Remember, though, that just as you, a professional writer, expect to be fairly compensated for your work, a lawyer is entitled to a reasonable fee. You should also keep in mind that no lawyer can guarantee the outcome of a legal matter, so don’t expect the fee you pay to be related to the outcome unless you and your lawyer have reached a different arrangement. My dentist and I commiserate with each other that we both work in professions where people sometimes have to pay us to suffer. And, just as my dentist urges his patients to practice good oral hygiene, I urge authors to consult with a lawyer before problems arise rather than have to pay later when things go wrong.

One last point: many writers think they can handle publishing law issues on their own or by consulting with their professional colleagues. Sometimes that’s true, but many times it’s a mistake. There are times when you need some objective professionalism. There’s an old saying that the lawyer who represents himself has a fool for a client. That applies to authors, too.

Using Photos of People in a Coffee Table Book

April 24, 2015

Tags: Privacy, Right of Publicity, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Editorial Use of Photos

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 was reviewing your website and was wondering if I have to be concerned with any legalities on my ORB (ORBS are spirits --deceased persons-- captured in photography) picture book prior to publishing.

The coffee table type picture book includes most of my own personal photography taken at family weddings and functions. For others who have shared their ORB pictures and spiritual captures, they have given me approval to use them.

As far as my own personal collection, do I need approvals from family members? I was thinking I would also keep the persons anonymous as I talk about the orbs in the pictures, with exception of when I include the actual picture of person who is deceased, as I do believe that was someone’s spirit captured in an orb.

A: What an interesting question! It raises three basic legal issues – copyright in the photos themselves and the rights of privacy and publicity for the subjects of the photos.

Photographs are copyrightable subject matter, and the copyright in them belongs by default to the photographer (legally the “author” or “claimant”) from the moment the photo is first captured in a tangible medium of expression (on film or digital medium). This means that you are the copyright owner of the photos you took yourself. You are, therefore, free to publish them without any worries about copyright infringement. As to the photos you obtained from others, you say that you have permission to share them. You need to confirm with those people whether they were the actual photographer because it’s the photographer -- not the subject-- who owns the copyright. Permission to use a photo in a publication is basically an implied license and is a defense against copyright infringement for all the photos where the actual photographers gave permission. If the “shared” photos were not shared by the actual photographers, however, you should track down the person who actually took the photo and obtain his or her permission to publish.

Subjects of the photos raise additional legal questions. Whether or not you need permission to include the individuals shown in the pictures depends on several factors. Editorial use of photos in newspapers, TV or online news coverage, magazines, and books is protected by the First Amendment and are generally free to publish, as long as an individual’s privacy is not being invaded. A book, (even if profitable) is considered to be editorial in nature. If you were using the photos to advertise or endorse a product, you would definitely need written consent from the living subjects, because they have a “right to publicity” for use of their name and image for commercial purposes. In your situation, your coffee table book is probably editorial rather than commercial in nature, so I would say that you don’t really need permission of the living subjects, provided none of them are celebrities and you are not invading their privacy.

A word of warning about privacy. There is no right to privacy for people in public places, but if the photos show subjects inside private homes or private yards, you should get their consent. Deceased persons – in this case the ORBS—do not have a right to privacy any longer, so you don’t need consent to include them – even in a private setting.

I’ve already said that your book is probably editorial in nature and therefore you don’t need to be concerned about the rights of publicity of the subjects. Most deceased individuals don’t have a right of publicity, but there are some exceptions for celebrities. Dead celebrities in some states (such as Tennessee and California) have a continuing right of publicity. Elvis Presley’s estate, for example, still controls the rights to commercial use of his name and image. So if any of your ORBS are famous, you should be careful not to use them to promote your book in commercial ways, such as putting their photos on ancillary materials like coffee mugs or t-shirts.

Fair Use, a Slippery Concept

April 23, 2015

Tags: Fair Use, 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: I have been told that grabbing a picture off the web to use in my blog is fair use and therefore legal, especially because my blog is in support of a nonprofit charity. But I have a letter from a photographer saying that I have infringed his copyright in a photo I posted. Who is right?

A: In my opinion, the photographer is right and you are wrong. Individuals and organizations who post copyrighted materials on social media sites often cite fair use as the reason it’s OK to do so. But fair use is not well understood. There are more myths, misunderstandings and false formulas about fair use than there are reliable facts about it. It’s not wise to assume that any proposed use of copyrighted material on a social media site meets the legal standard of fair use.

The U.S. Supreme Court has called the “fair use” doctrine “the most troublesome in the whole law of copyright.” Fair use is subtle and complex because its meaning must be determined by context. In fact, one Federal Court justice called it “so flexible as virtually to defy definition.” To make things more complicated, courts have not hesitated to expand or restrict the scope of fair use protection to serve the “interests of justice.” Is all this complexity really necessary? The answer is yes. The fair use doctrine is a judicial and legislative attempt to balance the interests of copyright holders, society at large, and individual information users. Fair use cannot do that if it is overly simplistic. So, exactly what is fair use and how does it apply to the work of freelancers?

Fair use is not a “right.” It is an affirmative defense to copyright infringement. In legal terms, an affirmative defense acknowledges wrongful behavior but provides an excuse. Self-defense is an affirmative defense to murder because the accused admits to killing the victim, but offers an excuse. This means that the fair use does not apply to material that cannot be protected by copyright in the first place. Copyright cannot protect ideas, facts or events, but only creative description and expression. Ideas and facts, therefore, may be freely copied. Fair use comes into play only when there exists a copyright that has been infringed.

Fair use is codified in statute form as Section 107 of the U.S. Copyright Act, but it is actually a case-based doctrine that existed in the common law long before Congress revised the present copyright law. The copyright statute does not define the term “fair use” or provide definitive rules for its application. Section 107 was intended, according to a Congressional report at the time, merely to “restate the preexisting judicial doctrine of fair use, not to change, narrow or enlarge it in any way.” Section 107 starts with a statement of purpose, and then lists four factors to be considered by the courts. The statute, however, does not explain how to weigh the purpose and the four factors to decide whether any given use of copyrighted material is fair or infringing.

The purposes for which it may be fair to use a copyrighted work include “criticism, comment, news reporting, teaching, scholarship, or research.” This list of purposes is not exhaustive but illustrates some examples of fair use. In order for a use to be fair, the general rule is that it must result in (1) a public benefit or (b) an increase in knowledge beyond the contribution of the original work. When viewed in light of the statute’s stated purpose, a use is not fair, for example, simply because it is a single or small infringement, or a private noncommercial use.


Factor 1 – Purpose and Character of the Use
The first factor requires you to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” In keeping with the goal of social benefit resulting from the unauthorized use of copyrighted material, the courts have been less likely to rule that commercial uses are fair. Despite this, the courts have recognized that virtually all publications are run for profit, and that most uses will exist on a continuum of commercial/nonprofit uses. At the commercial end of the spectrum, the court in the case of Amana Refrigeration, Inc. v Consumers Union of United States, Inc. (431 F Supp 324), said that quoting a portion of an article published in Consumer Reports is not a fair use when used to promote sales of products- it is mainly a commercial use. At the opposite extreme is a purely nonprofit use such as education. If you intend to use copyrighted material, therefore, you must assess the commercial motive and purpose of the work.

Factor 2 - Nature of the Work
The second factor is “the nature of the copyrighted work.” It is more likely fair use to quote factual works, news reports, and biographical facts than a work of fiction. In part, this distinction embodies First Amendment considerations and more broadly the public interest in dissemination of important facts. A dramatic illustration of the weight of the public interest in information is found in the case of Time Inc. v. Bernard Geis Ass. which dealt with the unauthorized publication of still-frames from the Zapruder motion pictures which depicted the Kennedy assassination. The exclusive rights to the Zapruder tapes belonged to Life Magazine Inc., which had purchased them from Abraham Zapruder for $150,000. Several years later, the defendant Thompson approached Life for permission to use frames from the film for a book he was writing about the assassination. When Life declined his offer, Thompson used his access to Life’s archives to secure photographs of the desired frames that he reproduced in his own book. Life sued for copyright infringement and Thompson asserted the fair use defense. Even where Thompson’s behavior in obtaining the images was egregious and the infringement was clear, the court held that the public’s interest in the dissemination of information about Kennedy’s assassination outweighed Life’s proprietary interest in the images.

Factor 3 -- Amount Infringed
The third factor, is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Although courts will sometimes point out that an infringing use constituted a certain percent of the entire work, there is no magic number. Both the quality and quantity of the portions used are at issue. One illustrative case involves a videotape of the Reginald Denny beating shot by the Los Angeles News Service from one of its helicopters. The news service licensed several television stations to use the footage but denied permission to KCAL. KCAL, however, aired a purloined version of the video during its coverage of the riot and later argued that its airing constituted fair use because the portion it showed was a relatively small part of the entire video. The court rejected this argument because the news station had aired the most valuable segment of the video and held KCAL’s limited use to be infringing.

Factor 4 -- Market Value
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” A use is unfair when it diminishes the marketability of the original by serving as a substitute. A good illustration of fourth factor analysis is with abstracts of longer works. You have to consider how and why the abstracting is done. In a bibliographic abstract, for example, little of the original work is used and the use is likely to be fair. A synopsis, on the other hand, is likely to contain more material from the original, and you need to take care. There is a higher likelihood that the synopsis will destroy the market for the original work which means that the use is less likely to be fair.

Fair Use Analysis
Fair use is a flexible and uncertain doctrine about which there are myriad myths and misunderstandings. Avoid making quick assumptions about fair use and be highly skeptical about online information about fair use. Whether or not a particular infringement can be excused as fair use depends heavily on the facts of each case. In each case, you must consider the underlying purpose of the fair use provisions of the Copyright Act and a balancing of the four factors cited in the statute, as well as the case law interpreting each factor.

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.


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.

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.”

Do I really need a lawyer for a simple book contract?

November 3, 2014

Tags: Author Law, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration, 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’ve just been offered my first book contract from a small independent publisher. I didn’t use an agent and I really want this deal, so I plan to go ahead and sign the contract, even though it’s not perfect. I don’t want to spook the editor by asking questions or making waves. A friend of mine said that if I don’t have an agent I should have a lawyer check the contract over, but I don’t want to pay a lawyer to raise unnecessary questions. No offense, but my experience is that lawyers just make things overly complicated. And they charge an arm and a leg to muck things up.

A: First of all, any legitimate publisher is not going to be offended by reasonable questions about a contract and no good attorney is going to be offended by your concerns about the way the attorney will approach a contract review or by a request to keep fees reasonable. That said, I do understand that you might be uncomfortable raising contract questions, especially if there’s nothing seriously wrong with the contract. But there’s no reason you can’t ask an attorney to do a quick review, look for any serious problems and, should any important questions arise, make suggestions as to an appropriate way to raise them with the publisher. The charge shouldn’t be unreasonable for a simple consultation (but ask the lawyer to quote a fee first).

You may also be more comfortable just asking an attorney to handle all the negotiations on your behalf. If you tell the attorney you don’t want to stir up any unnecessary trouble, the attorney should be able to step in and spare you the agony of negotiation. The fee might be a little higher for such extended involvement, but it can free you and the editor to concentrate on producing a good book while someone else handles the legal details. Many publishers actually prefer to deal with lawyers or agents. Also, having an attorney handle the negotiation for you is a way to communicate your status as a serious professional writer.

If you really don’t have the resources to pay an attorney, or if you can’t find an experienced publishing attorney to help you, you should be aware that the Authors Guild (www.authorsguild.org) provides a free legal evaluation of any book contract to its members. Your contract review will be competent and very thorough. The Authors Guild will only provide you with advice, though. They won’t represent you in a negotiation. And the turn around time is sometimes longer than busy writers are willing to wait. But the Guild legal program is an invaluable resource to keep in mind.