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Writing Right: The Blog

STARTING A NEW PUBLISHING COMPANY

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 
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FINDING A SECOND LITERARY AGENT

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 

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CAN I INCLUDE A REWRITTEN FILM SCENE IN MY NOVEL?

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 

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WHY CAN'T YOU SUE FOR AN UNREGISTERED WORK?

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 

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MAKING YOUR BOOK UNIQUE

Have you ever wondered how you can create a unique book when it's eerily similar to another book that's already been written? Good question.

 

First, ignore the similar elements between your book and any other, and envision your story in your mind. Describe it to yourself. Fine-tune it. Flesh out the weak spots and trim the dead weight. Own it! Then, push the original story as far from your mind as possible. After all, there's a reason for the phrase, "There's nothing new under the sun." That applies to books as well as life in general. Get used to the fact that your book, no matter how unique you think it is, will be "similar" to another book or two or ten thousand in one way or another. So?

 

But, if you're still concerned someone may compare your work to a previous tome, emphasize the differences. After all, you're the author; you can write whatever you want. Be more detailed. Place your book in a different part of the world. Populate it with different characters, different places, different descriptive narrative, and different dialogue. Give your characters unique ethnic backgrounds. Set the story in a different time period. Use your own literary voice, of course, and not the other author's. (Which, I would hope, you're beyond temptation from doing anyway.) Read More 

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FAIR USE AND PHOTO COPYRIGHTS

Someone recently asked if she could use a copyrighted photograph of a deceased model taken by a deceased photographer in a magazine article exploring the model's murder. It's an interesting question. And it's one that every nonfiction writer faces eventually. So, what are the legalities involved here? This is how I responded:

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For starters, remember that U.S. copyrights extend throughout the lifetime of the copyright holder plus seventy years. After the copyright holder's death, those rights are passed along to the heirs who can sell them if they wish to a third party, such as a photo agency or a product developer.

 

Regardless, in this situation, at least, it appears as if the judicial concept of Fair Use is in force. If that's the case, you should be able to use the images for illustrative purposes in your magazine article, with a couple of caveats. According to the Website of the American Bar Association in referencing the right to fair use:

 

"The first thing that we need to know is that copyright protection does not protect factual information conveyed in the copyrighted work, meaning that publicizing the scores of a sporting event or other factual information such as injuries, retirement, and so forth is considered fair use and does not constitute copyright infringement. What helps to strengthen a fair use argument in a case not involving the use of mere factual information is the use of the copyrighted material for the purpose of legitimate news commentary. For example, when using a clip or photograph to report the results of a sporting event or other factual information, courts have regarded the use of copyrighted material as fair use when the use is (1) brief quotations only; (2) presented in a news report; and (3) presented in a newsreel or broadcast of a work located in the scene of an event being reported." Read More 

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COPYRIGHT: Yay or Nay?

Someone recently asked if I suggested he register his work with the U.S. Copyright Office before submitting it to publishers. He had received a lot of suggestions against doing so because it wasn't necessary. Publishers aren't going to steal anyone's work. But, actually, there are even more reasons for not registering your work before submitting it for publication--or ever. Surprised? Here's what I told him.

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Let me respond here less to the obvious and more to the down-and-dirty, nitty-gritty, practical issues of non-registration. I suggest you pass on registering your manuscript before sending it out to publishers for several reasons.

 

  1. Your manuscript is copyright-protected from the moment of its creation in a "fixed … tangible medium of expression," according to the U.S. Copyright Office.
  2. If someone appropriates and infringes upon your work, you can issue a demand letter for the violator to remove that work from all public spaces, including Websites, magazines, newspapers, books, billboards, television ads, stores, and so forth.
  3. If a violator fails to respond to your demand letter, you can sue for actual and punitive damages in Federal Court, but only after registering your work with the U.S. Copyright Office. The distinction boils down to this: You don't need to register to prove ownership of your creative property; you do need to register to take a violator to court for actual and punitive damages. Read More 
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DEFENDING AGAINST COPYRIGHT INFRINGEMENT

Someone wrote me the other day asking how he could defend himself from a claim of copyright infringement even though he hadn't registered his own work with the U.S. Copyright Office. Sound like tough sledding? Read on for my response.

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It seems as if even attorneys can get this answer wrong if they don't read the question carefully. I understand that one entertainment lawyer advised that you'll need to show the claimant in this case had prior access to your work. That would be true if YOU were suing HIM for copyright infringement, but that's not the case. Just the opposite. In suing you, the claimant had prior exposure to your work, most likely because you had already published or otherwise made it available publicly. Now, he will have to prove that HIS version of a primarily identical work predated yours. You, of course, need to show that it didn't.


Your job, then, becomes primarily defensive. You'll need to round up all your evidence, including dated copies of your rough drafts and finalized version. Microsoft and other software manufacturers time-stamp your dated material every time you open a document and save changes, from your earliest saved version on up to the latest one.

 

Also, you'll have to gather together any correspondence referencing your work on the property, either physically or digitally through e-mail, messaging, texting, phone conversations, etc. Sworn statements from people who knew you were working on your property and when will also prove invaluable. So, too, will any inquiries regarding reference and research work you did and the people you contacted—like a query to a photo agency or a historical library. Ditto, friends, neighbors, drinking buddies, teachers, coworkers, and family members with whom you may have discussed various aspects of your work during its development. And don't forget any social-media postings or discussions of your work, which will also be dated. And, of course, interviewees whom you may have spoken to in preparing your material. Read More 

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BEG, BORROW (A BIT), OR STEAL

What do you say? Can you legally beg, borrow, or steal a line or two from another writer as long as it's not enough to put you in Dutch with the Copyright Cops?

 

Beg or borrow? Not sure those are legally definable words. Steal? Ouch. We don't want to go there. But the truth is you can use some of another writer's material as long as you attribute that material to the original author. "Some," here, is the operative word. Keep the usage to a minimum, as in this example in quotation marks:

 

I can't say it any better: 'Donita was a flake, and she knew it from the day she was born,' according to author Pete Markowitz wrtiting in his book, Dark Day at Diablo.

That's one way to handle a short excerpt from another author's work. If it's a little longer, you might grant the quoted material its own paragraph to set it apart further, as in this example:

 

As author Markie Mark said in his article, "Going My Way," in the June, 1972, issue of Motorist Magazine:

QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL QUOTED MATERIAL.

Putting the quoted material in italics and indenting it in a block sets it apart from your original writing even further and prevents the reader from mistaking it for your own material. Read More 

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