Tag Archives: copyright

Law and the Writer

Last week a young writer who is also a lawyer was on blog tour, and I have asked her if she wouldn’t mind stopping by the comments today to answer some questions. The usual disclaimers apply: although she is a lawyer, she is not your lawyer, and nothing you read in the post or comments should be taken as legal advice. If you think you need a lawyer, get one, internet lawyering may well be worse than useless. That being said, it’s great to get some insight into the sometimes murky world of Intellectual Property law.

I’m pleased to introduce Amie Gibbons, whose energy in real life translates into her books. She writes lighthearted stories with sweet Southern sass, belles who pack heat, and a dollop of romance on top of things that go bump in the night. Her latest is Psychic Undercover (With the Undead) and it’s a fun romp of a book.

Okay, if you’re a writer, you’ve heard the term copyright. It’s very important in the arts. So what is a copyright?

It is literally what it sounds like, the right to copy. It means you own that type of mental work and you are the only one who can make reproductions of it.

On some things, it’s easy to say what’s copyrightable and what isn’t. A book is copyrightable, but what about a title? Or a made up word? Or a general plot? There it gets a little more tricky. It gets grey. Lawyers love grey, it gets us lots of money.

This post is just going to touch on the basics of copyright.

1. For something like a book, the first question is usually along the lines of, “Do I have to register it to have protection?” Basic answer is no. You created it, it’s yours and legally no one can take it from you. You have copyright as soon as the art is put on a medium, as in, words are put on the page.

So no, you don’t have to register it with the copyright office, and you really do not have to do the “poor man’s copyright” (that’s where people would mail themselves their manuscripts in the mail and keeping the dated paperwork to prove they had the work on that date).

The tricky part if you get caught in a legal battle is proving it was yours first. This is where a registered copyright helps because it helps prove it was yours on the date registered (it also does other stuff for you like you can sue in federal court and get greater damages in court).Read the rest here… 

The post on copyright, fair use, and other common IP questions appeared at my blog, and then on James Young’s blog, Amie delved into the dank world of Contract Law.

Well, first up, most publishers have a form contract they expect you to sign and if you don’t want to, they’ll tell you it’s standard across the industry and you can take it or leave it. If you leave it, don’t worry, there are a hundred authors behind you who will have no problem with it.

That is one of the big things to look at in contract negotiations. Does one side have more bargaining power than the other? Usually the answer is yes. Unfortunately for writers who are set on going trad pub, the answer is extremely yes. The publisher has all the power because they don’t really need you. Unless you have already made it huge like that Fifty Shades woman and they want to get on board the train, you’re replaceable.

Does that mean you can’t try to negotiate? Of course not. Hire an IP lawyer who specializes in author contracts to look at the contract, to explain it to you if need be, and to go to the table to negotiate on your behalf.

First rule of negotiations, you never send the person with the power to say yes to the table.

Why? Because if you as the author are at the table, they can pressure you right there to agree to something. If your representative is there, there is nothing they can say to get the rep to say anything but, I’ll take it to my client, because the rep legally cannot say yes, no matter how good the deal sounds. Even if you tell them they can say yes if the deal has XYZ terms, they’ll still most likely say they’ll take it back to you because they know how to negotiate and that no legit deal requires you to say yes in the room.

Again, will this help if the publisher says this is the form contract that is standard across the industry so you will take it or leave it? Probably not. But you never know. There might be a few things that are just egregious to the author that publishers have in there because they know they can get away with it, but really don’t mind dropping if you ask. Read the rest here…

Amie has some very practical things to say, with a good dollop of commonsense. I know this is a lot of reading when you follow the links, but it’s all worth digesting. Then come on back here and ask questions in the comments, both Amie and I will be around to answer them! I am not a lawyer, at all, but I can usually come up with a link to an answer.



And the World Keeps Turning


I’m going to start this post with an admission. This isn’t the post I want to write. The post I want to write would set the interwebs on virtual fire because I am so frigging tired of seeing people I care about attacked and, in some cases, slandered simply because they aren’t spewing the right sorts of messages. I’m tired of being told that, for my work to be considered “quality” science fiction, it has to do more than be well-written and and entertaining. It has to satisfy some checklist to be sure all the right sorts of characters are included. I’m tired of being told I can’t write certain characters because I’ve never walked in their shoes. Most of all, I’m tired of being told I’m not the right sort of fan because I haven’t spent years going to the right cons and serving on the right con committees. If I were to write that post, I would burn the ears of our more civilized MGC members and make even the Powder Blue Care Bear with a Flamethrower blush. So, that’s not the post I’m going to write. Instead, I am going to do something that I rarely do. I’m going to congratulate the Guardian on a couple of articles from the last week or so and talk about them.

Yes, yes, pick yourselves up off the floor. Even the Guardian can get something right once in a while. VBEG

First up is sort of a follow-up to Sarah’s post from last week. For a quick recap, Sarah mentioned, as part of the foundation of her post, the plagiarism lawsuit Sherrilyn Kenyon has filed against Cassandra Clare. I will give the same caveat here that Sarah gave in her post. I have not read the pleadings filed on Ms. Kenyon’s behalf. Nor have I read Ms. Clare’s books. That said, I have seen a number of people jumping in to condemn Ms. Clare, not on the basis of what she did or did not do in the series of books that are at the heart of the lawsuit but because of past actions she supposedly took with regard to fan fiction. No, I don’t know the details and, to be honest, I really don’t care. Unless Ms. Kenyon can prove her allegations with regard to this particular series, Ms. Clare’s past actions have little to do with it. If, and only if, the allegations are proven true should those past actions (also if true) be considered and then the judge hearing the case should use those actions in determining damages Ms. Clare would be ordered to pay.

But that doesn’t address why I am applauding the Guardian regarding this case. On Friday of last week, the Guardian published an article that addresses, from Ms. Clare’s point of view. Two things stood out for me and, yes, I know I am paying attention to lawyer-speak but the attorney, John Cahill, does bring up some interesting questions. First, “the lawsuit failed to identify a single instance of actual copying or plagiarism by Cassie.”  The second is that Ms. Clare has been writing these characters and series, iirc, for ten years. That’s a long time to wait before filing suit and part of me wonders if the fact Ms. Clare’s series is being made into a television series wasn’t the impetus for the suit.

To be fair, the suit does allege that Ms. Clare, in her series, does, “employ a line of warriors who protect the normal world from demons”, both cover how “a young person becomes part of the Dark-Hunters’ (or Shadowhunters’) world after being saved by a gorgeous blond Dark-Hunter (or Shadowhunter)”, and “both Dark-Hunters and Shadowhunters have enchanted swords that are divinely forged, imbued with otherworldly spirits, have unique names, and glow like heavenly fire”.

Now, I don’t know about you, but I can think of any number of books, short stories, TV shows and movies that could fall under that description. Those are, indeed, story elements, but does it rise to the level of plagiarism and copyright infringement? If that is all there is, I don’t think so. But, it will be for a judge and/or jury to decide. However, as Cahill points out, if Ms. Clare can prove that she developed and used some of the characters Ms. Kenyon is complaining about prior to Ms. Kenyon’s use of similar characters, that will strike a very strong blow against the suit being able to go forward. For now, however, it is something we all need to keep an eye on.

Think about it. If Ms. Kenyon wins and if, as alleged by Cahill, there are only general similarities between the authors’ works, the sort of chilling effect that could have on authors. Anyone writing a quest story that revolved around a searching party that consisted of elves, humans, dwarves and small people with hairy feet would have to stop and rethink whether it was worth possibly going up against the Tolkien estate. Coming of age stories in a dystopian setting where a teen girl steps up to keep a young sibling from possibly facing death could be challenged as being a rip-off of the Hunger Games.

In fact, what it reminds me of are some of the really bad publishing contracts I’ve seen, usually for themed anthologies, where the publisher or editor maintains not only the rights to the stories but to any and all characters used in the stories, including historical figures, locations — even real ones — and even themes. Under those contracts, they could try to keep one of their authors from, several years down the road, writing about Jack the Ripper if Jack was in that particular author’s story in the antho, even as a walk-on character. That sort of contract, if enforced, could have a chilling effect on publishing and so, too, could this sort of law suit if there aren’t specific — and I do mean specific — instances Ms, Kenyon can point to where Ms. Clare ripped off her copyrighted material instead of there simply being some similarities.

The second article by the Guardian is worth it just for the headline: Publishers should pay authors as much as their other employees. The article doesn’t say much that most of us here at MGC haven’t said before. Publishers complain about the rising cost of publishing and use that as an excuse for not paying authors more. However, those same publishers continue to insist on having their offices in high dollar office buildings in the middle of high dollar real estate areas in places like London and New York City. At a time when it isn’t unusual to find authors, especially new authors who aren’t being pushed by the major publishers as the “next big thing” receiving advances of only $5,000, “even the lowliest shuffler of proofs gets more than £11,000 a year.” Now, unless the dollar has taking a huge jump in the international monetary market, that “shuffler” is making about twice in a year what the author makes. Hmmmm.

It does make you think.

It also shows that publishers are still holding on, as tightly as they can, to the old business model.

Anyway, I’ve rambled enough. What are your thoughts about the articles? I’m going to find another cup of Death Wish and get back to editing.