Legal Considerations for Authors

By Sachinwarankar (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

By Sachinwarankar (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)%5D, via Wikimedia Commons

For writers and publishers, there are a lot of interesting things to consider when it comes to the law.

For writers looking to go the traditionally published route, there’s a lot to keep in mind contract-wise, including, according to Kristine Kathryn Rusch, control, fairness, and clout. She explains that you want as much control over your project as possible, though some contracts may not allow for negotiation, so you’ll have to ask yourself if that contract is something you really want. Also, things will not always be fair, but you don’t need clout to negotiate, you just need to get past the idea that you need a certain level of success before you can negotiate and just go for it. The worst thing that can happen is the person you’re negotiating with can say “no.” Continue reading

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Intellectual Property and the Indie Writer

Courtesy of Ulfbastel, Wikimedia Commons

Courtesy of Ulfbastel, Wikimedia Commons

By Ron Glick

This post was originally published on http://godslayercycle.wordpress.com/. Ron Glick, an indie author of 9 comic trivia books and 5 novels, shares his insights and experiences with intellectual property. Read his latest novel, Dorothy Through the Looking Glass.

In recent months, the subject of intellectual property rights has become a very big issue for me personally. I swear, the last half of 2013 must have been an unwritten copycat movement that I never received the memo on. Out of nowhere, I found myself defending my own intellectual properties on various fronts, all from claims originating in this time frame. However, to make matters worse, it opened my eyes to exactly how under-informed independent (or indie) authors really are on the subject.

As writers, we all recognize the value of a brand. We rely on creating something marketable and unique to grab the attention of our audiences, but it frightens me at how little the indie writer market seems to understand of exactly how sovereign we are in preserving the concepts we create. Worse, not a single indie writer I have discussed this issue with in recent months is even aware of the necessity to aggressively defend what they have created. Continue reading

Publishing and Law: Marketing

No that has nothing to do with publishing law. But it was the sign in the bathroom at HBO, where I had my class, and I thought it was kind of funny. And I do love a good sign.

Anyway, this week we had a guest speaker: Rick Kurnit. He is an attorney at Frankfurt Kurnit Klein & Selz PC, and he is incredibly knowledgeable. But rather than recite my ten pages or so of notes, I’ll just pick out some of his more entertaining and useful quotes.

“If the (ad) agency is competent, which is about half of them, they would limit their liability.”

“The world is filled with preliminary materials. These are dangerous.”

“That which you can do as a judgment proof college student is very different from what you can do as a corporation.”

“What you do as a college student is fair use essentially because there’s no money to be made by suing you.”

“Typically you change [ads] to generic or you go to parody/fair use which other people call stealing.”

“It doesn’t matter if [the ad] is for social commentary or good, you MUST comment on the underlying work” (if you don’t want to lose in court).

“It’s perfectly legal to appropriate concepts and ideas so long as the execution is entirely different.”

“What you do with people’s beloved trademarks may have limits.”

“What’s art? We’ve got judges now deciding what’s art.”

“So he’s still there making decisions about popular culture about which he knows nothing, but that’s what judges do.”

“I advise everyone not to do business in California” (you can get sued most easily there, apparently).

“When you get a claim, it’s a good idea to consult a competent lawyer. By my count that’s about 20% of lawyers.”

“The problem with lying when you’re making claims is, when do you stop?”

We also discussed at length Fair Use and Parody, which is a defense against copyright, so long as the underlying idea of the original work is what you are using to make your point. You can also get in trouble if the Court deems you’ve used an excessive amount to make your point. Very tricky. Anyway, two funny, and successful parody, cases involve “Good Night Bush” and “Naked Gun 33 1/3.”

“Good Night Bush”

This book is considered to be a parody, and the argument was that “Good Night Moon” was one of the few books former President George W Bush read, and that if he hadn’t read that book, he never would have made to decision to go to war in Iraq.

“Naked Gun 33 1/3”

A movie starring Leslie Nielsen, “Naked Gun 33 1/3” created a poster of Leslie in the same pose as the famous 1991 Vanity Fair cover of naked, pregnant Demi Moore. The argument for this was that Demi Moore’s photo was about how at the cusp of the new millennium, society is more accepting of women and their naked bodies, and Leslie Nielson’s photo was for a movie about how men are still Neanderthals and can’t accept the beauty of pregnant, naked women. The 2nd District Court bought it and claimed it was fair use.

The Social Network

Yeah I saw The Social Network. I pretty much had to. I’ve been on Facebook multiple times a day, almost every day for the past five years, so you see, given my current addiction, I had no choice.

It was a really well-done movie, and it’s received a lot of critical acclaim. But looking at it from a publishing perspective, which is how I’m starting to see everything these days, there are a couple interesting angles.

After watching the movie and obsessively comparing fact from fiction on the Internet, I stumbled upon this CNNMoney article. Turns out, like many movies these days, this one was based on a book, Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money, Genius and Betrayal. Written by Ben Mezrich, the best-selling author who also wrote, Bringing Down the House, which was turned into the movie 21 in 2008, the Facebook book has received a lot of criticism. Mezrich is known for dramatizing and fictionalizing his work, and yet all of his books have been boldly categorized as non-fiction.

Now, I’m taking a publishing-related law class, and after several weeks of discussion, I’m scared that once I get a publishing job, everyone will sue me for everything. So how has Mezrich gotten away with his made-up scenes? True, he has done his best to get to the truth–interviewing multiple people close to Mark Zuckerberg, though he was unable to speak with Zuckerberg himself. But many people dispute his Facebook book as factual. For example, there is one scene in question where Zuckerberg sits on a yacht and eats koala meat.

Fortunately for Mezrich and Columbia Pictures, Zuckerberg does not seem to care enough to sue for libel. I did read somewhere that his company tried to influence how the movie would make him look, and his $100 million donation to the Newark, NJ schools just before the movie came out seemed more than coincidental. Still, it does not seem likely that this will go to court.

Hypothetically though, if this were to become a libel case, Mezrich clearly was banking on the fact that Zuckerberg is considered to be a public figure–which means if Zuckerberg sued for libel, he would have to prove actual malice. And that is very hard to prove, especially since Mezrich seems to whole-heartedly believe all his facts are correct.

In the big scheme of things, none of this matters. One of the articles I read for my Interactive Media class predicted that Facebook will be bigger than Google in about five years. It already has more page views than Google, and the social aspect of it will supposedly soon make people want to use it for searches instead of Google. I wish I knew how to code.