D. J. Herda

A writer asked online the other day how to tell if a book title is "available." Here's how I replied.

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Short answer: All book titles are "available". See how much time and trouble I just saved you?

Titles are not copyrightable. Even if you come up with a unique, fascinating, grabby, illuminating, witty, luscious, juicy title all your own, someone else can come along and copy it for his work tomorrow. Most conventional publishers frown on publishing books with the same title as books already on the market for obvious reasons. But doing so is neither unethical or illegal.

Oh, and as a general rule, create a title that will appeal to your intended audience, but don't spend too much time and energy on it. Unless you're self-publishing your book, your publisher will change your title anyway nine times out of ten. Publishers do marketing research to find a title they believe will sell the most copies of a book. They're not always right, of course, but they pay their marketing people a salary to do something with their time. Coming up with titles, then, becomes more of a science than the creative art most writers assume it is. Read More 

I've heard people ask recently if a personal diary can be used as evidence in a court proceeding? Well, guess what. It can! And, if the opportunity presents itself, it will! Although people keep diaries and journals for various reasons, nearly all authors intend for them to remain private. That, after all, is the allure to "telling all." If no one but the owner ever reads it, the owner has no handicap on what he or she may choose to commit to writing. That's not the case in writing a blog, for example, where everything you commit to "paper" can eventually be read by someone else--and possibly many someone "elses."

But a diary is sacrosanct. Or, at least, so most people think. In truth, a diary or anything else you write for that matter can be used as evidence in a court of law. That doesn't mean it will be, and it doesn't mean that anyone can call upon you for any reason to deliver your diary as evidence in a trial. The diary must be relative to the case, and its entrance as evidence has to be approved by both attorneys and/or the judge. It must also have been obtained legally, meaning that your rights weren't violated through illegal search and seizure. Read More 

Someone asked online the other day if he can be sued for novelizing a "secret" someone told him. As usual, Queenie was there to muddy the waters. I hope I helped to clear them. Here's what I said.

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Please forgive the Queen of Wrong for she knows not what she does. Or, apparently, says. Of course you can get sued for writing a novel based upon a secret someone told you. You can get sued for crossing the street in rush hour or drying your socks on a line in plain view of the public. In fact, you can get sued for damned near anything, including for telling someone you can't get sued!

That doesn't mean you should sit around stewing about every single thing you do. Being sued is common. Being sued successfully is another matter.

In the case that you mentioned, even if the person who told you a secret sues you, he or she won't prevail in court. That's because there is no legal precedent of which I am aware that makes spilling the beans an illegal act. Now, is it morally reprehensible? Sure. Does the person who shares the secret lack moral integrity? Probably, depending upon the secret. If the person told you in confidence that his brother is planning on blowing up a grade school next Tuesday, for instance, you would be morally obligated to notify the authorities. Whether or not you write about it afterward would be strictly a matter between you and your conscience. It's a case of protecting the greater good: In this case, that means saving lives above keeping secrets. Read More 

When a writer asked online the other day if he could legally write a sequel to an existing work, he received a predictably muddled and incorrect response from one resondent in particular, who went out of her way to define what a derivative work is and what writing one entails--incorrectly, of course. Here's how I broached the subject.

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Well, the Queen of Wrong missed the boat yet again. Funny how often it sails away without her!

The truth is that copyright laws pertaining to derivative works and whether or not an author can create a sequel based upon an original, copyrighted work are complex and can't be answered with a glib, and inaccurate, "No!" Giving such an answer is irresponsible and harmful to the world of truth and reality, not to mention the derivative work's author and his or her potential for success. Who would have guessed?

So, with Queenie's misinformation out of the way, here's what the U.S. copyright office has to say about the subject. Read More 

I ran across someone who wanted to know if he'd be commiting plagiarism by copying and pasting someone else's work into an online paraphrasing tool. Now, whenever I come across forum questions about plagiarism, I'll bet the farm that some horrendous answers follow. This day was no exception. Here's how I replied.

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Wow! I can't remember when I've seen so many absolutely ridiculous—and thoroughly wrong—responses! Did you draft your question by the light of a full moon? If so, I think you'd better send out the hounds because the vampires are flooding the countryside!

Seriously, to all those geniuses who haven't yet learned how to read and assumed that you, the questioner, are talking about writing research or academic papers, you're acting out of ignorance and slothfulness. It's like assuming the questioner is using a Xerox machine to make paper copies of a work and gluing them to his computer screen with wallpaper paste. Is it possible? Sure. Is it a given? Of course not. Wake up, you other "respondents." School is out. You get no points just for showing up! Or for shooting from the lip! Read More 

I was trolling the Internet the other day when I came across a question from someone who wanted to know whether or not he could write a sequel to an existing film if he changed all the names and places used in the film. Interesting question. Here's my response:

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Could you? Sure. If you change the names and places and don't use any dialogue or other material from the film word-for-word, you're creating a new work of art. It may be derivative, but then again, all new creations are derivative of one thing or another. Remember the phrase, There's nothing new under the sun? It's a memorable euphemism because it's true. Story ideas can't be copyrighted; names can't be copyrighted; descriptions and settings can't be copyrighted; other elements within common usage can't be copyrighted, all for obvious reasons. Just because you pick up a story at a point in time where the film leaves off, you can't be found legally guilty of plagiarism or copying something (a story) that doesn't actually exist yet (the sequel you're writing). Remember: Stories can't be copyrighted. Plots can't be copyrighted. Only the word-for-word representations of them (the verbatim manner in which the writer chooses to express them) can be copyrighted.

Now, with that said, "could you" write a sequel novel to a film is a lot different from "should you" write a sequel novel to a film, if you know what I mean. As another respondent pointed out, film companies, particularly major ones, have deep pockets. They can enjoy increased profitability from the publicity of a copyright-infringement action against you, even if they fail to prevail in a court of law. In other words, even if they lose, they win. Read More 

Someone asked this question on-line the other day, and you wouldn't believe the ridiculous answers people sent in. Here's how I responded.

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There are lots of problems with several of the answers you received, beginning, of course, with the Queen of Wrong, who said incorrectly that "the very best outcome you can expect is a cease and desist letter, being banned from every possible platform you published on, and having your name known in the publishing industry as poison." Dead wrong. The very best outcome you can expect is to have no one notice your plagiarized material; so, you walk away thinking you outsmarted the world. All of the things Queenie mentioned as the "best" are actually varying degrees of the worst you can expect—just the opposite of what she said.

Now, add to the list of worst things a plagiarizer may experience are a criminal complaint, a court injunction against the plagiarizing author, and—yes, let's dig deeper into the well—a legal finding for the plaintiff in a court of law. That could indeed leave the plagiarizer paying a hefty fine, all court costs for both sides of the action, and punitive damages. How likely is that to break the financial back of the plagiarizer? That depends upon the severity of the infraction, but in the case of an entire book, for example, the total could run into the millions of dollars. Read More 

A question came up the other day on how to go about buying republication rights for copyrighted material. That's relatively simple to do--once you know the answer. Here's my take on the situation.

First, whether or not you'll have to pay for using copyrighted content depends upon the amount of content, the attribution you provide, and when, where, and by whom the original content was published. It also depends upon where and how you propose to republish the content. Some publishers welcome limited use of their content with appropriate credits as effective, free, word-of-mouth promotion. Others don't. The only way to find out for sure is to write the Rights and Permissions department of the publisher, which information should be listed on a book's copyright page or on a magazine or newspaper's masthead.

In your request, provide the publisher with the exact material you'd like to republish, the original publication's name, publication date, and author's name plus any other pertinent information you can think of. Then, propose an attribute, such as "Reprinted with the permission of Random House, Inc." or whatever is appropriate. Don't mention paying for the rights. If the publisher gives you the go-ahead, you're home free. (Retain a copy of the permission for future use, just in case.)

If the publisher replies to your request positively and suggests a proposed fee, feel free to negotiate. If they ask for $500, for example, offer them half that amount. You'd be surprised at how many books a publisher has to sell to make up $500—or anywhere near it. By granting limited republication usage rights, the publisher is raking in what is in effect "free money." And that contributes to the publisher's annual statement, which looks good to the corporate offices.

If you can't reach an agreement with the publisher, of course, you can always sidestep the entire rights situation by rewriting, rewording, and republishing your own interpretation of the material you had hoped to purchase. Remember: Thoughts, ideas, and concepts can't be copyrighted. Their stylistic rendition (how those thoughts are written) can be.

Present the same concepts in your own words, and you're home free. And you won't have to pay for republication rights. Simple, no? Who would have thunk it?

Smoke if you've got 'em.

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D. J. Herda is author of the new series of writing advice, About Writing Right, available in eBook, paperback, and hardcover formats at Amazon and at fine booksellers everywhere. You can check out his column, "The Author-Ethicist," which runs at Substack.com weekly. Well, almost weekly. Occasionally weekly. Sometimes weekly. (Hey, I do my best!)

In effect, that's what someone wanted to know when he asked online if he could use characters already in existence, such as a kidnapped princess with long hair and healing powers. He received some answers that were predictably ridiculous. Here's how I responded.

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I see you've received a couple answers so far, both of which are dead wrong and horribly misleading. Your character can have long hair, can lower herself on it like on a ladder, and even have the same name. (Most likely—more about names below.)

Ideas cannot be copyrighted, or else all of humanity would be in court defending against copyright infringement continually. Names cannot be copyrighted for the same reason. Likewise common descriptive words such as blonde, brunette, and redhead. Ditto for commonly used nouns such as tire, train, and fart (which is a bit like what the responses you've received so far smell like. And likewise for verbs such as run, procrastinate, and litigate.

People who have no idea what copyright means and what the U.S. copyright laws are shouldn't be telling other people what's copyrightable and what isn't. Phrases taken from a published work word-for-word may be copyrighted (assuming the work isn't old enough to be in the public domain, in which case you can do whatever you want with that work, including republishing and even selling it yourself). Entire sentences from a published work not in the public domain are taboo to use subject to the previous exception. In other words, the form an author uses to express himself in words—and not the names, descriptions, titles, and individual words—can be copyrighted.

Now, with that said, you can use the name Mickey and you can use the word mouse in your own writing without any fear of repercussion from copyright violation. But you can't use the name "Mickey Mouse" because, although not copyrightable, Walt the Disney Person was smart enough to take out a trademark that prevents anyone else from using that moniker. How you find out what phrases are trademarked or in the public domain is another issue entirely. You can begin with an online search of the U. S. Patent and Trademark Office. You'll find them at THIS address:
 
https://www.uspto.gov/trademarks/search
 
You can also contact an attorney, but that will cost a few bucks. You may want to do that in the end, anyway, if you want to be certain something isn't trademarked before you use it in your own work and risk getting blowback from the trademark holder, which is more likely than not a large, well-heeled corporate entity with a large, well-heeled legal staff on retainer.

Just my thoughts on the matter. Before taking any actions that might result in your legal embroilment, you should check with an intellectual rights attorney or, if you're a member of a writing association such as The Authors Guild, run it by their legal department. That won't cost you anything more than the cost of annual dues for membership.

Meanwhile, smoke if you've got 'em.

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D. J. Herda is author of the new series of writing advice, About Writing Right, available in eBook, paperback, and hardcover formats at Amazon and at fine booksellers everywhere. You can check out his column, "The Author-Ethicist," which runs at Substack.com weekly. Well, almost weekly. Occasionally weekly. Sometimes weekly. (Hey, I do my best!)

The question of whether or not someone can fire an agent after getting a book published came up online the other day, and the usual detachment of dullards responded--some more responsibly than others. Here's what I had to say.

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Wow, the Queen of Wrong missed the mark yet again. Can you imagine that!

Contrary to the shoot-from-the-lip advice she gave you, of course you can terminate your contract with your literary agent at any time. Just be certain to follow the terms in your agency contract for doing so. And, by the way, Queenie is also wrong about not being "allowed" to get other representation or represent your work yourself. Dead wrong. Unless your contract is one of those contractual rarities so one-sided and unfairly skewed toward the agent with nothing for the writer, you're as free as a bird after you sever agency ties. And, if your contract is that badly skewed against you, you need to talk to a good attorney to get you out of it. Pronto!

Queenie and some other respondents were also outright inexcusable in criticizing your intent to fire your agent after the agent got you published. They can't possibly know why you want to go your own way without your telling them, which (if I can still read correctly) you didn't. Read More 

So, you're contemplating writing under a pen name but worry that doing so may obscure your legal rights to your work, is that the issue? If so, you can relax. Using a pen name when publishing a book doesn't change your legal name, rights, or responsibilities. You can be born Robert Smith on your birth certificate and go through life calling yourself Bob Adams, but that doesn't change your legal name, and it doesn't shelter you from your responsibilities under the law. Even if you were to sign a contract under a pseudonym, the law recognizes that the legal YOU signed it, no matter what name you used on the agreement, and YOU are legally responsible for all eventualities.

There's a good reason for this, of course. Except for the permanent responsibility (and rights) assigned to you as your legally registered self (most often determined by the name on your birth certificate unless legally changed by court order), you could change identities every ten minutes simply by using a pen name or pseudonym. You could claim that, since you used a pen name on a contract, that YOU aren't legally responsible for whatever "Robert Smith" didn't sign but "Bob Adams" did. Read More 

A forum reader asked a question the other day: For how much can I sell the rights to my book?" As usual, plenty of respondents were quick to jump into the fray. Unfortunately, as usual, most were dead wrong or at least partially misleading. Here's how I responded.

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Well, of course the Queen of Wrong missed the boat again, and the ship has sailed once more without her. Unfortunately, no other respondents to this question fared much better. Rather than talking about self-publishing and your followers being "uneducated people," as on respondent called them (which I find a highly insulting), maybe we should drill down to your actual question: For how much can you sell the RIGHTS to your book? Not how much can self-publishing make for you or how many copies will your followers buy. Your question has nothing to do with self-publishing or ignorant followers. It has to do with conventional publishing and economics.

The real answer to your question (with apologies once again to Queenie) is that it depends. You don't say whether or not you've written the book yet, so that's a variable. You don't say how dramatic or marketable a story you have, so that's another variable. And, with both of those variables, you can't get an answer without doing a little more leg work. Read More 

I came across a writer online the other day who asked in a forum if a publisher can cancel a contract or book deal. Luckily (?), I've had a bit of first-hand experience in this area, so here's my response.

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It's nice finally to see the Queen of Wrong get something right for a change—a little—although her definitive answer is anything but.

Yes, a contract can be "canceled" by the author submitting a sub-par quality book to escape from a long-term contract. But that happens rarely, since everyone knows the author's capabilities going into the deal, and getting a contract pulled under those conditions would mark the author as something he'd rather not share with his mom. Also, few publishers would be quick to jump at a chance to cancel an author whose ongoing series (i.e., long-term investment) is still making money. Publishers have editors, too. And they have access to other freelance writers. And they have the legal right to rewrite any or all of a book and deduct the costs of doing so from the author's future earnings if the author refuses or fails to do so himself.

Yes, a change of editors could prompt the cancellation of a contract in its early stages, but it's certainly not likely once the publisher has paid advance money and invested in development costs. In fact, it's highly unlikely. Read More 

Someone asked online the other day about whether or not a beginning author needs copyright insurance for any sort of liability. He received some ridiculous and potentially harmful answers. Hopefully, my response set him straight.

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There have been some horrible answers here. Possibly because the phrase "copyright insurance" is meaningless in English. There is no insurance for copyright of which I'm aware because it's unnecessary. If, however, you're asking about author's liability insurance against copyright-infringement actions, then I get it. No one else did, including the respondent who advised you that you won't need liability insurance as long as you write fiction or tell the truth in your nonfiction writing. That respondent is way off base. Here's why.

Anyone can sue anyone else for virtually anything in the United States. Whether or not that plaintiff's action will prevail in a court of law is another matter. So, with that understood, it all boils down to a question of likelihood. Just as with any type of insurance coverage, you have to ask yourself about the chances of your needing it before buying it. As a writer, in other words, you won't actually need liability insurance until you actually need liability insurance. Read More 

A novice author asked a forum question the other day about why a publisher should object to his making 100 copies of his book to give to his relatives. Here's how I responded.

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I see that one respondent, Andrew, gave you sound advice. Several other respondents should learn not to speak without thinking things through or knowing what they're talking about. Not the first time by far, and knowing at least one of them and her propensity for her shoot-from-the-lip, misleading replies, it won't be the last.

The bottom line has nothing to do with who copyrights the book in your name—you or a publisher. You already own copyright; who registers that copyright for you is a moot point. Nor has the bottom line anything to do with making a publisher's job "more complicated and difficult for them to deal with." It does have to do with sales. Whether or not you already have a publishing contract or hope to land one down the line, when you cut into the marketing gene pool, you deprive a publisher of that many potential sales. That's true whether we're talking about 100 or 100,000 copies and whether it's an existing or a potential publisher. Read More 

The question arose the other day as to whether or not someone can take public-domain photos, use them in an original piece pf art, and then copyright that art piece in the creator's name.

It's an interesting situation with an answer every bit as intriguing. But, first, let me preface this with a statement of fact: "Now, I'm no scientist or medical doctor." Nor, for that matter, an attorney.

However, with that out of the way, my understanding—and the only one that makes sense here—is that you can use copyright-free images anyway you like, which you already know. Toward that end, if you manipulate, combine, or otherwise morph those images into a finished product that's completely different from the copyright-free imagery with which you began, you can copyright your finished creation so that it can't be appropriated legally without your permission.

Think of a photomontage. That's a group of two or more separate photographs joined in some fashion into a single work of art through manipulation of one type or another, often via soft edges, overlapping, multiple exposures, warping the imagery, etc. Although the individual images may be copyright free (and, therefore, nothing you can copyright), if you create a brand new multi-image or manipulated-image creation from those original images, you're entitled to copyright your new work. It's unique, it's exclusively yours, and it can't be used by anyone else for commercial purposes without your authorization. The original public-domain photos would remain in the public domain, of course. You can't assume ownership of them. But you can assume ownership of your original, new creation based upon them. Read More 

If you're absolutely serious about starting a publishing company, I have to say I don't know why. But, after that, I do have a few ideas for you to consider. For example:

1. Identify your market and how many potential readers there are based upon a factual analysis. How many will there be when you bring out your first issue two or three years down the line?
2. Identify your competition. It doesn't matter how big your market is if your competition is flooding the field. If you have the field all to yourself (highly unlikely) and you have plenty of potential subscribers to pitch (also highly unlikely), you're looking good.
3. Decide upon publication frequency (daily, weekly, monthly, etc.) based upon responses to the above.
4. Identify the areas of talent you'll need to recruit/hire to make your publication a reality.
5. Hire a good attorney specializing in publishing law.
6. Purchase a potential targeted subscribers' list based upon subject area and interest. And then, buy a second one from a different vendor. And a third. And fourth. And fifth.
7. Hire someone to work up a direct-mail campaign, and target your e-mail and direct-mail subscriber lists.
8. Hire someone to tabulate the results.
9. Hire an accounting firm to keep track of your subscribers, money received, and accounts billable and payable. Read More 

Someone the other day asked how to approach a second agent to represent his novel after his existing agent turned it down. It sounds pretty convoluted, but it's really not. My answer, though, may surprise you.

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The answer to that question is pretty simple, despite the convoluted, incomplete, and mostly erroneous response to your question you received from one other person. Begin by checking the "out clause" that your contract with your existing agent contains. It tells you how to sever your contractual obligations should things come to that. Your contract also has a clause allowing your agent to turn down representation of any client's work that he or she deems to be unmarketable. Keep your agent's letter to that effect in your files, and start looking for an agent who disagrees with your present agent and is willing to take your second novel on.

Be aware, though, that landing one agent in a lifetime is tough enough. Getting a second one is twice as difficult, particularly since your current agent has turned the book down. That looks suspicious at best and bad at worst. Read More 

That's what someone asked on a forum the other day. Luckily for that person, I happened to read some of the answers others provided him. Here's what I wrote:

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First off, yes, it's okay from a copyright standpoint to write a scene from a movie using different characters and, of course, your own wording. That's called rewriting or paraphrasing, and it's perfectly legal. As for the other answers you've received to your question, I once gave a lecture at Dixie State University and knew several students and teachers there, and while I don't want to cast aspersions, I wouldn't put a whole lot of stock in advice about copyright law that someone who "studied Psychology and Creative Writing" there just gave you. Ditto for anyone who says that the "scene, as well as the movie, is the intellectual property of the writers."

What?

So, if I describe a scene of Tara from Gone with the Wind in my own words in my next book (that's the question here, remember?) and I rename it Terrance, I'm going to Copyright Hell? Is that the way things work in your world? Uh-uh.Not in mine. In my world, scenes can't be copyrighted. Only the exact phrasing one uses to describe it, assuming it's not a generic descriptrion already in wide use throughout the lexicon. I suggest you study the U.S. copyright laws before leading people down that "yellow brick road" (which, by the way, is not a copyrighted "scene" and can be used anywhere by anyone at anytime, although there may be other reasons than copyright infringement for not doing so—read on). The reason you can use it is that, if copyright extended to scenes, we'd no longer be able to describe a setting as an "idyllic wooded grove," "a babbling brook," or a "rusting old farmhouse with a dilapidated white picket fence." Get it? Yeah, I didn't think so. Read More 

A reader dropped that disastrous bomb on a writing forum the other day, and--as usual--the least qualified responses came from the commentators who least understand U.S. copyright law. Here's what I threw into the mix.

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Are you confused? If not, I can't understand why. I know I'd be confused if I had to rely upon several other commentators' abbreviated, misleading, or outright wrong responses to your question, which, by the way, begs for clarity. I assume what you're asking is whether or not you can sue someone for copyright infringement even though the work being compromised isn't registered with the U.S. Copyright Office. If that's the case, the answer is yes.

Here's what Parsons & Goltry, PLLC, experts in the field, has to say on the matter: Read More