Daniel Steven, Lawyer and Writer: Rights, Rights, Rights! 12/4/03

Mary Rosenblum

Hello, everyone and welcome to our Professional Connection Live Interview!

Tonight, for our Professional Connection Live interview, we'll be chatting with Daniel N. Steven, publishing attorney and consultant specializing in serving writers, editors, and publishers through the Internet. Daniel, welcome!

I must say that I'm very pleased to have a lawyer as a guest...one who has an interest in writing and is a writer himself! Too many new writers really don't understand rights or what they are!

I certainly remember how naive I was when I began writing. And I know that I get a lot of questions about copyright. A lot of new writers really think that they need to register their copyrights, and there are some scams out there that profess to do just that. Can you explain that automatic copyright to our listeners?

For example, take 'Asimov's Magazine'. They deposit two copies in the Library of Congress, I believe, but do not register copyright so if I wanted ironclad protection, I should register on my own?

Daniel Steven

Regarding Asimov's magazine, the question was is when Asimov registers their magazine, does that mean you lose the right to your story?

And the answer is

No. The registration by Asimov's Magazine is for their editorial content, it does not include

the individual stories by freelancers, unless it was "work for hire."

this means that you can (and should!) still register the copyright to your story

even though it was included in a copyrighted magazine.

Mary Rosenblum

Would you compare the 'automatic copyright' and what it means to

the registered copyright and what it means, one more time! Thanks!

Daniel Steven

Sure. Since 1978, in the United States, the minute the you raise your pen

from paper, or your computer saves to disk, you have copyright.

This means that you are entitled to sue for infringement, however

first you will have to register -- that's a prerequisite for filing suit.

In addition, if you register within 3 months of first publication

you will be entitled to additional remedies-- "statutory" damages

and attorneys fees that are valuable to have.

Mary Rosenblum

So if you have a real concern about infringement, then it's wise to register at publication?

Daniel Steven

That's correct. You can register before, but its really not necessary. And chances your work will change before publication.

Mary Rosenblum

I'm curious, Daniel, just how common IS infringement? If you're not Stephen King, I mean?

Daniel Steven

Infringement is quite common

but rarely is it worth filing suit over. Basically it is the threat of a lawsuit

that will get an infringer to stop doing it.

Mary Rosenblum

And that really doesn't require registration, does it? Just a lawyer's letterhead? :-)

'Stop or I'll sue!"

Daniel Steven

That's correct. We send a "cease and desist" letter.

If the infringer is a legitimate company or reputable person

generally we can negotiate an end to the infringement and a settlement.

Mary Rosenblum

This seems to be more common in epublishing these days... A couple of years ago SFWA had to threaten suit against

a website that was selling copies of authors' work without authorization. It never went to court.

Daniel Steven

That's right. But the web is the Wild Wild West. The problem of course, is that anyone

can put up a web site and publish. Luckily, most reputable ISPs will respond.

info

Does that mean that if you don't copyright or register your

story, someone else can take your rights to it away?

Daniel Steven

As I said, regardless of whether you register or not,

you own the copyright and may sue the infringer.

The issue is, what are the damages and will it be worth a lawsuit?

chatty lady

What if it's not on purpose? I wrote a story that took place along a specific highway, 101 and was reading a book months later that mentions the same highway, but the story is very different. Two people can have the same idea at the same time, then what?

Daniel Steven

Yes, there is a principle called

"independent creation." It is a valid defense to infringement. However, let me

point out that most new writers tremendously overestimate the

danger from infringement. You should concentrate on polishing your craft and your story

not worry about whether someone will steal it.

Mary Rosenblum

I have to say that with over 60 short stories published in close to 100 different magazines/anthologies, I have yet to deal with a case of infringement.

So what exactly constitutes 'infringement'? Maybe we'd better get that clear!

Daniel Steven

Simply put, infringement is the copying of another's work

whether in whole or part, and the publication of it in an unauthorized fashion.

rupbert

What if you are writing a biography of someone who is alive?

Do the writer and the storyteller claim rights?

Daniel Steven

This is a big issue that I can' answer simply. It involves

the intersection of privacy law, defamation law, and right of publicity. However

I can state generally that the biography of a public person is protected by the

first amendment and you are free to write about such person

as long as you don't defame them.

g.j.

What's the difference between infringement and plagiarism?

Daniel Steven

Plagarism is simply a form of infringement -- the wholesale copying of another's work.

pook

Suppose you write fiction but it includes real life corporate setting and people but you change the names, but someone recognizes, are you liable?

Daniel Steven

Good question. In fiction, you have much more leeway

than in nonfiction. However, you can still be liable for

defamation and invasion of privacy.

First, defamation if the person is recognizable and you defame their character.

Second, right of privacy. Again if the person is recognizable to others and you reveal

private, embarrassing facts about them,

you can be liable for invasion of privacy. Therefore

it is always best to conceal identities by changing names and characteristics.

Mary Rosenblum

Pook has a question that interests me, too, since we recently had a guest

who wrote 'true crime' thrillers, and used real crimes quite openly.

pook

Suppose you tell the truth about a crime they committed? Is that defamation?

Daniel Steven

No. First of all, truth is (almost always) a complete defense to defamation.

Secondly, there is no right of privacy with regard to public incidents or matters

of public interest, or things that have been reported in the papers or in court.

pook

Suppose it is an event that would be recognized?

Daniel Steven

If you are reporting a real life event, that's fine, as long as it

does not reveal embarrassing facts about a private person not involved in the event.

Mary Rosenblum

So truth about the murderer is fine, but leave out the innocent passerby?

Daniel Steven

That's right, or change their name -- since it’s not important.

info

Is it defamation if you write about a character that someone believes is them when it is not?

Daniel Steven

That's why they have lawsuits. If the person can prove that most people thought it was them

then the would have a claim if it was defamatory.

However, they must show that OTHER people saw them in the character.

g.j.

Could you indicate that although inspired by actual events, this story is a work of fiction?

Daniel Steven

That' exactly right. It's the old "names are changed to protect the innocent."

rupbert

Could you explain the intersection of privacy law, defamation law, and right of publicity a bit more, please?

Daniel Steven

Not unless you have a couple of hours.

That's like asking "explain quantum mechanics in a few paragraphs."

However, I can state that privacy law is about

not publishing facts that would be hurtful or embarrassing about non-public figures..

and that defamation is about not publishing untrue fact, whether

embarrassing or not, that hurt a person's reputation,

and that the right of publicity has to do with the commercial exploitation of a public

figure. For example, you could write a Broadway play about Humphrey Bogart

and that would not violate the right of publicity because it would be biographical

and thus protected by the first amendment... However

if you were to sell t-shirt advertising your Bogart play, that would be a violation of the

right of publicity -- you would be cashing in on Bogart's name and face. Does that help?

Mary Rosenblum

So it's okay to say that the President does unpleasant personal things, but not okay to say that about your neighbor, and not okay at all if it's not true? Does that work as the Cliff Notes version? At least about defamation?

Daniel Steven

Yes, in a way. The comment on the President

is protected by the first amendment and the standard for defamation is much

higher than with a private person.

sailor

You can't copyright ideas. Plot is idea, so you could copy part of a plot and be ok?

Daniel Steven

Good question. Yes, in general that's right. Think how often "Romeo and Juliet" has been copied.

Keep in mind that copyright applies to the expression of an idea, not the idea itself

which cannot be copyrighted. Thus, your plot idea cannot be copyrighted, but if your write

a synopsis of the plot, that's an expression of the idea and the synopsis is automatically copyrighted.

pook

Does the disclaimer about this is fiction protect the writer completely?

Daniel Steven

Disclaimers for this purpose are generally worthless. Regardless

of what you "disclaim," if you have infringed someone's copyright, or defamed them

you are liable.

chatty lady

What if you use someone’s words about a subject, say: flower arranging but you mention who wrote it in the same place you've written it?

Daniel Steven

It's still infringement. You have to think of it this way.

If you were to steal some money from Jim, would it be all right

if, when you bought something with the money,

you said, "this money came from Jim." ?

Of course not. It is the author who has the right to control how and when

their property is displayed. Attribution doesn't make any difference.

roe

Are characters copyrighted?

Daniel Steven

Yes. They are considered part

of the "derivative rights" inherent in copyright. Thus, for instance

you cannot use Luke Skywalker and Obi-Wan in your novels

without permission from Paramount.

Mary Rosenblum

And I will chime in here and tell you that most writers, in my experience, are VERY protective of their characters!! Myself included!

You need written permission to use someone else's character, as far as I know. Correct, Daniel?

Daniel Steven

That's right. And it is rarely given.

Mary Rosenblum

No kidding. :-) I've said no more than once.

Daniel Steven

Let me add one caveat.

You may remember a recent case involving Gone with The Wind.

A writer used the characters from the original novel

however, she used them in a parody, which is an exception to the rule.

Mary Rosenblum

But as I recall it was a hotly contested case, was it not? And of course, a lot of money was involved.

Daniel Steven

That's right. And it was never tried... it was settled, I think in exchange for a share of the

royalties from the new book.

Mary Rosenblum

That's what I heard. But then, in your experience, how often DO cases like this go to court?

Daniel Steven

Infringement cases are only filed

when there is both damages to be gotten

AND the defendant would be able to pay those damages.

If you get a judgment against someone without any money

you've wasted your time.

speckledorf

How does character protection work with fanfic then?

Daniel Steven

Another great question. Fan fiction generally is an infringement

and there is a great deal of it posted on the web

and the authors certainly have the resources to file suit.

So why don't they? Simple. They LIKE the fact that their copyright

is infringed, because in their case it makes their product more popular. So

(and of course this isn't always true) but in general they choose to ignore

the infringement. However, I wouldn't rely on forebearance

if you are the first one.

Mary Rosenblum

There is a lot of fanfic in SF/Fantasy, and many writers like it because it is an accolade and it does promote their work, but there are some out there who will surely come down on you like an avalanche if you touch their characters!

And a few of them have done so.

pook

Suppose you wrote about a person's illegal act but he was never caught and you say it's fiction. Can he sue you?

Daniel Steven

That's right, Mary.. It's a gamble, because you are relying on someone not to sue.

If you write something that is true, it is not defamatory. So the issue is, could you prove

it was true if he sued you? If so, then you can decide to take the risk. If it is fiction, as

I said before, the chances are much smaller that you would be sued for infringement because

Daniel Steven

the person would have to prove that everyone knew it wasn't fiction.

rupbert

With a biography, the individual may have records, testimonials, and if the writer uses these how can they stay clear of things the story teller may not like?

Daniel Steven

No, you don't have to do that. Biography gives you much more leeway

because it is public policy to allow such writing. By this I mean

that the rules of right of privacy and, in some cases, defamation, are not applicable.

However, if the biography is NOT of a public person, you have to be much more careful.

patchworkcat

Hardly any time goes by after a major happening before a TV movie comes out about it -- like the sniper running around the DC and outlying areas here. Once it's been reported the incident becomes fair game?

Daniel Steven

That is right. Public events, or any event of public interest, may be written about without fear of.

violating the right of privacy.

However, you still have to be wary of disclosing facts about people

only peripherally involved, who would sue for right of privacy

and, in many case, publishers and producers

will "buy" the rights to a private person's story to avoid any issues in the future,

or to gain access to things that only they can reveal about the story.

paja

How should a writer go about finding a lawyer and when should they start looking?

Mary Rosenblum

Feel free to advertise here, Daniel! :-)

Daniel Steven

Well, thanks Mary, but writers generally don't need a lawyer until they have a

publishing contract being offered to them

and in many cases, an agent will do just fine.

If you don't have an agent, however, I DO recommend that you consult a

publishing lawyer (such as me!) to help you, because

otherwise you are at the mercy of the publishing industry, which is

the last plantation. Also, many agents

have very little understanding of publishing contracts beyond the money issues, and

there are many other clauses

like option clauses, indemnity clauses, etc. that can be very important.

Mary Rosenblum

Let me say this in basic English...1. NOBODY should sign a publishing contract for a book length work without an agent or lawyer, and 2. Your agent should have a connection with a lawyer!

My agent routinely needs to consult with her lawyer and she has been doing this a long time.

chatty lady

Are you an Attorney that we would hire to check a contract we may have received even though you're in D.C., I'm in Nevada and the publisher is in say, Canada or somewhere else?

Daniel Steven

Yes, I handle publishing contracts all over the country and even internationally.

Almost all publishing contracts contain standard clauses and terms, and they have to

be enforceable in all states, although

many contracts use New York law as the basis for some legal principles.

You needn't worry if your publishing attorney is not where you live.

Mary Rosenblum

I would also like to add this caveat. I have seen a host of predators preying on the hopes of naive writers who represent themselves

as publishers, agents, or book packagers and end up billing the inexperienced author.

Daniel Steven

I couldn't agree more. The number of predators

has exponentially increased with the advent of technology

such as e-books and print-on-demand.

In addition, the number of predatory "agents" has increased, with the rise

of the "fee-paying" agent.

Mary Rosenblum

For a LOT of extraneous services. If you are approached by someone offering to publish your book DO send the contract to a lawyer like Daniel. I know of people who have received bills for thousands of dollars for 'services'.

The fact that a lawyer is even involved will help you.

rupbert

In the Jessica Lynch case, how does the author and Jessica

share royalites?

Daniel Steven

I don't know the details, but I can say

that anyone could have written the "Jessica Lynch" story without

her permission, since it is all public.

However, the book co-authored by her would have been written by

a writer who took a portion of the royalties (usually one-half). And the publisher

would have, as I mentioned before, bought the "rights" to Jessica's story.

Mary Rosenblum

I know people who have done this. The percentages are spelled out in the publishing contract.

roe

If someone starts a story with a character, writes about a chapter then gives it to you to finish, who owns the portion you wrote, say maybe 10 chapters?

Mary Rosenblum

roe tells me that the book was never finished, Daniel.

Daniel Steven

Under the law, if there is more than one author to a work

then the copyright would be in both their names, unless

there is an agreement to the contrary. That is why

it is so important to have a collaboration agreement. In the situation you

describe, even though you wrote only one chapter, you would be able to register the

copyright in both your name and the other author's as a "joint work."

Mary Rosenblum

I have done several collaborations and have always written up a formal agreement. It was useful once in a difficult situation where my co author and myself had a parting of the ways.

It made it simpler to sort out who owned which characters! We were both using ours in other works.

It would have been ugly without that agreement.

paja

Daniel, do you mean contract for book only or for shorter work as well being the point to find a lawyer?

Daniel Steven

Well, of course you can always use a lawyer to

review a magazine contributor's agreement

but generally there isn't enough money involved to make this worthwhile

unless you wish to be educated for the future, so that

as a magazine writer, you will know how to negotiate from strength.

Mary Rosenblum

While we're on the topic of short work here, I'd like to talk about the mushrooming epublishing industry, because I am seeing some APPALLING contracts out there,

many of which are either so vague as to mean nothing, or simply ask for 'All rights' which is something I counsel

writers NEVER to grant.

Can you suggest what a writer should and should not sell as electronic rights

and what should be included in an e-contract?

Daniel Steven

Well, I can certainly suggest, but unfortunately, there often is little choice. Since the Tasini vs. New York Times case

three years ago, most major magazines and newspapers are now requiring contributors to assign all rights.

However, if you have a choice, I recommend that you agree to give electronic rights only for a limited period of time

in exchange for the original payment.

Thus, let's say your magazine offers you $500 for an article and wants to keep it online indefinitely.

I would counter by saying they could keep it online for 3 years, but then would be required to pay you another $500.

for an additional period.

Mary Rosenblum

It is indeed difficult to negotiate with the big magazines, but what I see are small ezines that want all rights with no mention of a time limit at all, for very little money. In many cases, I simply think the editor doesn't know what he/she needs to buy.

But if a writer grants 'all rights'

then that piece cannot be submitted to another publisher ever, yes?

If there is no time limit?

Daniel Steven

That is right. A writer should NEVER give all rights indefinitely. Remember, this is your stock in trade.

Treat it that way.

Mary Rosenblum

And I would also like to add here, that some of my short stories have brought me as much money as a novel

because I have sold them many times. So you DO want to keep those rights!

Daniel Steven

Right. To make it simple, if you are selling a story or article, your starting point should be

first serial rights only, or one-time rights if already published. This means

that the mag can only publish it once, and then you are free to sell it elsewhere. If they want to archive it online

then you should put a limit on this.

Mary Rosenblum

For example, I buy one time exclusive rights for a year, for the LR website...and after that, you can publish it elsewhere.

Daniel Steven

That's right, that's the way to handle online only -- time-limit it.

Mary Rosenblum

If I want to keep it up longer, I have to repurchase the rights.

mbvoelker

I've seen guidelines that claim the magazine buys "no rights" (usually for no payment). If a person who knew no better sold a piece that way what rights has he/she actually lost?

Daniel Steven

I don't understand. If they have "no rights" then they can't publish it. It would be infringement. What they

really mean is that they are taking a non-exclusive right to publish

but you still have to put a time limit on it.

Mary Rosenblum

And the problem with this, is if you choose to sell that story to, say, Fantasy and Science Fiction magazine,

Gordon, the editor, will only pay for 'second serial rights

because you have published it already. And he doesn’t pay much for those.

Daniel Steven

Exactly. There can only be ONE "first serial rights." You should try to get the most for it.

paja

How do you get an online publisher to keep the time limit on archiving your work?

Daniel Steven

Again. it's the Wild West. There is no regulation. You'll just have to check up on them

and if they don't take it down, you threaten an infringement suit.

Mary Rosenblum

On a nice legal letterhead. Good reason to have a relationship with a lawyer. :-)

Daniel Steven

Keep in mind one additional fact.

Regardless of whether an e-publisher "takes down" your story

it may still exist for years on the web. Google has an archive of millions of pages

and there is something called the "Wayback Machine" that archives sites back to the

early 90's. This is an infringement suit waiting to happen.

Mary Rosenblum

No kidding. But also, most publishers and editors are aware of that problem.

Daniel, I want to touch on a topic we haven't addressed yet.

which is the Public Domain issue...fair use, and most especially

song lyrics! A lot of my students love to include 'em.

Daniel Steven

Yes, this is a common question. We all love to include song lyrics, because they often are a great

expression of the feeling we want to convey. However, you must remember that song lyrics

are under copyright just the same as prose. Therefore, you must have permission from the song publisher

to use the lyrics in your book or story. Quite often, this is not practical, but that's the way it is.

Mary Rosenblum

I have also heard that the labels are VERY hard nosed about use of any song lyric and charge for it.

That's hearsay only. Truth there, do you know?

Daniel Steven

Yes, but its even more complicated than that. Now we're in the realm of the entertainment

industry, and we're dealing with music copyright, which is split up differently than prose copyright, between

the composer, and the "publisher," and is often assigned to the label. Suffice it to say that, although

you generally will be able to identify the owner of songs, they seldom will grant you permission.

roe

Are popular lines like "Frankly, my dear, I don't give a damn," copyrighted?

Daniel Steven

In general, titles, short phrases and slogans cannot be copyrighted. However, in some cases a phrase

is trademarked, and thus you cannot use the phrase in a commercial sense. In your example,

as far as I know, you are free to use the phrase.

Mary Rosenblum

Let's talk about characters for a minute, if you please. When does a popular character

like Sherlock Holmes or Frankenstein become public domaine? And I know Holmes is NOT because

a friend of mine just had to get permission to use him.

Daniel Steven

A character will go into public domain when the underlying copyright expires. Sherlock Holmes comes under

British copyright, which is honored in U.S., and is apparently still active. Thus, permission is necessary... or

it is possible that the estate of Conan Doyle trademarked the character. Frankenstein, however, as far as I know,

is in the public domain.

Mary Rosenblum

The estate has extended the copyright, Daniel. They keep CLOSE control of Sherlock!

What is the year length of copyright? I can't recall.

Daniel Steven

That makes sense.

In the U.S. copyright since 1978 is the life of the author plus 70 years. For "works made for hire,"

however, it is a flat 90 years. However, keep in mind that

works copyrighted before 1978 are under a complex set of rules that make my head spin. So

better to know this, in the U.S. anything created before 1923 is in the public domain.

Mary Rosenblum

Good rule of thumb!

mbvoelker

I've found articles of mine translated into Polish and Chinese without my having known about it. Does a writer have any options when this happens internationally or should I just be glad they put my name on them and count them as publicity and credits?

Mary Rosenblum

I'm laughing. My work is all over the globe...and only occasionally paid for!

Daniel Steven

Most developed countries in the world belong to either the Uniform Copyright Convention or the Berne Convention.

What this means is that they will protect your U.S. copyright.

But it's not very useful for the small guy because, unless the publisher has offices or does business in the U.S.

you'll have to sue them in their country.

Hardly an adequate remedy. So, as you said, best to laugh it off.

Mary Rosenblum

Most writers I know grumble and chalk it up to 'international PR'.

Dan, you have given us a GREAT education in the legal side of writing! Tell us about your mysteries...what are you working on?

Daniel Steven

I currently have a serial murder mystery being circulated by my agent, and am working on a historical suspense

novel set in WW2 Paris. I also am completing a fictional autobiography of Blackbeard.

Mary Rosenblum

Wow, plus a law career. I'm impressed!

chatty lady

I am looking for your novel, Clinical Trials to find out what was in Jason Connors letter. I shall burst unless I find out soon. Great read so far...thanks.

Daniel Steven

Glad you like it, Amazon still has it, I think.

pook

Is the serial murder mystery based on fact?

Daniel Steven

No, it's totally fiction, but has some unusual twists :-).

speckledorf

I can recommend Final Remedy...very good.

Daniel Steven

Thanks!

Mary Rosenblum

So if people on the website have a contract and need some advice, can they contact you?

Daniel Steven

Absolutely. They can call me at 301-424-0677, email at dsteven@publishlawyer.com , or check me out at www.publishlawyer.com

Mary Rosenblum

The links will be in the transcripts, too, posted on the site.

chatty lady

How are the fee's figured for your services?

Daniel Steven

Millions of dollars per hour...J

No, really, I generally charge a flat fee, I find it's much better for us poor writers.

For instance, I charge a flat fee of $375 to review a publishing agreement.

Mary Rosenblum

That can be a whole lot less expensive than the 20 percent an agent will charge! If that's all the agent does.

Daniel Steven

Yes, if you've already sold your book, I will save you a lot of money. However, the agent will -- hopefully -- sell your work.

Mary Rosenblum

Yes, just to be clear, agents do more than simply look at contracts. But sometimes you have the book or series sold and you only need to deal with the contract...Actually

this can apply very directly to those who write Romance

since Harlequin takes unagented material.

Although I'm not sure their contracts are negotiable!

Daniel Steven

Yes, and science fiction, too. Like Del Rey.

Mary Rosenblum

Most of the SF/Fantasy/Romance/Horror still take unagented ms, as far as I know.

roe

What is the name of the book your Agent is circulating

Daniel Steven

Since I have an agent myself, I obviously find them valuable. But I do my own negotiating!

Holland Beach.

Mary Rosenblum

Interesting! This is the WWII book?

Daniel Steven

No, that's the serial killer book, set in fictional Holland Beach, in rural Maryland.

Mary Rosenblum

Ah, got it! Interesting setting!

patchworkcat

I understand that Daniel is part of a writer's group in Bethesda, MD. Does he have anything to say about that group?

Daniel Steven

Well, I am a workshop instructor for the Writer's Center of Washington (writer.org). I teach the Suspense and Advanced Suspense Novel workshops.

Mary Rosenblum

There you go, DC area writers. :-) A good resource.

Dan, thanks SO much for coming. I will definitely ask you back in the future, if you're willing. This has been an excellent education.

And I really appreciate it.

patchworkcat

I live in Frederick. Are the workshops open to anyone?

Daniel Steven

My pleasure. I hope I was helpful.

Yes, the basic workshop is open to anyone. However, the Center charges a fee of $148 for the eight sessions.

Mary Rosenblum

That's a bargain for writers workshops, believe me.

chatty lady

This was very informative, plus your books are an easy and enjoyable read. Thanks.

Daniel Steven

My pleasure.

Mary Rosenblum

Dan, we'll let you go. It has been a great two hours, but I bet your fingers are tired!

patchworkcat

You'll be hearing from me, Daniel. Thanks so much for the great info!

Mary Rosenblum

Ditto, that thanks!

Daniel Steven

Okay, bye!