Author Entrepreneur Magazine, Sept 2012 issue 3

Author Entrepreneur To Outsource or to Outsource:

Magazine

That is the Answer

Affiliate Marketing for Authors Copyright and the Right to Copy

Top 10 Things Authors Need to Know About Contracts

By Kelley Way

September 2012, Issue 3

About Us

Credits

Author Entrepreneur Magazine is published monthly by Barany Consulting, an education and consulting firm located in Oakland, California. The magazine goes out to nearly 1,200 subscribers via email and is also distributed via Twitter, Facebook and LinkedIn to reach over 10,000 people. For information on advertising please contact the editor at beth@ bethbarany.com, or call her at (510) 332-5384.

Publisher & Editor-in-Chief: Beth Barany Designer & Layout: Ezra Barany Editorial Assistants: Carissa Weintraub, Michelle Geary Contributors: Annmarie Lockhart, Barbara Millman Cole, Beth Barany, Catharine Bramkamp, Cheryl Derricote, Ezra Barany, Kelley Way Cover Photo: Alan Levine

Feel free to forward this to your staff, colleagues and clients. If this magazine was forwarded to you, you can receive free future issues by signing up here: www.AuthorEntrepreneurMagazine. com. If you’d like to use one of our articles in your newsletter or blog, please contact the respective author for permission. All materials and photos in this magazine are copyright protected.

Publishers, Writing & Book Professional Associations: Interested in advertising with us? Contact Beth Barany at Beth@BethBarany.com or call her at (510) 332-5384 to find out how you can reach your audience and save money over print publication advertising.

Disclaimer: Please note that the information in this magazine does not constitute legal advice, and that an attorney-client relationship is not formed by reading this magazine. Š 2012, Barany Consulting, Oakland, CA. All rights reserved to the respective authors. If you wish to use any materials in this publication you must contact the author first for written permission.

Thank you for protecting our copyrights.

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Letter from the Editor Thanks for reading our third issue of the Author Entrepreneur Magazine! I’m excited to have launched this next issue to help authors create sustainable and successful careers. Our theme this month is Legal Issues for Authors and Publishers.

Don’t laugh but I find reading contracts strangely soothing and hypnotic. When I dive in to read a contract, I slip into another world where words have peculiar meanings and where I know this document was written to protect someone’s interests, probably not my own. I have to gird myself with an invisible shield to make sure my rights are protected. I believe in win-win, but when faced with a contract that was written by another, especially a huge company pushing their weight around, I want to be prepared. So I take the time to read the agreement and make sure I understand all the phrases and terms used and what they mean for me.

I haven’t been afraid to amend contracts and send them back for negotiation. After all, if I don’t stand up for my rights, who will? As our lead author and literary lawyer, Kelley Way, states, if you need help interpreting your contracts, do contact a lawyer.

Please support our advertisers who make this publication possible and free to you! Click on their ads for more information, and forward the magazine to your clients and customers so they can read this magazine, too! Thanks!

Ace Services 4 Authors Creativity Transformational Write Shops The Torah Codes

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Some links in this magazine (“Magazine”) may be affiliate links (“Affiliate Links”), including links to Amazon.com. From time to time, the Magazine includes featured books and/or product giveaways. Should AE Magazine receive compensation as a result of featuring any such books or giving away any such product, that fact will be disclosed.

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September 2012 AuthorEntrepreneurMagazine.com | 3

Featured Story:

14

Top 10 Things Authors Need to Know About Contracts

By Kelley Way

6 10 18 22

Affiliate Marketing for Authors Ezra Barany

Copyright and the Right to Copy Catherine Bramkamp

To Outsource or to Outsource: That is the Answer Barbara Millman Cole

Trademark Considerations

for Your Writing Business

26 30 34

Cheryl Derricotte

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All’s Fair in Love and War, but Not Copyright Law Kelley Way

Legal Issues for Authors and Publishers Annmarie Lockhart

A Short List of Books on Literary Law Beth Barany

Get the Free Report: “12 Stages of the Writer's AdventureTM”

www.writersadventureguide.com Wherever you are on your writer's journey, you'll find useful tools in this new book by creative coach, Beth Barany. Beth has a knack for knowing how to kickstart both clients and colleagues into action! ­­Patricia Simpson, Bestselling Romance Author (San Francisco, CA)

You can buy the book online at Amazon.com.

September 2012 AuthorEntrepreneurMagazine.com | 5

Affiliate Marketing for Authors

image from icanhascheezeburger.com

By Ezra Barany I hate being an affiliate. Let me clarify that. I hate being an affiliate for other people’s products. In order to be successful at affiliate marketing, you need to do just that: marketing. Authors, your time is better spent not bothering with marketing other people’s stuff. Save your time for writing and marketing your own works.

However, being an affiliate for yourself, that’s a good idea! Beth and I have signed up to be Amazon affiliates for our own books. That way, if someone finds and buys our book from Amazon via our links, we get money for the book plus money for the referral.

In order to be successful at affiliate marketing, you need to do just that: marketing.

As you can imagine, always figuring out cool ways to make a good thing better, I found a great way to set up a system so that I can be an affiliate and also track how successful the affiliate link is.

First, go to https://affiliate-program. amazon.com. Once you register, find your

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book. You can then get your own personalized affiliate link. You have the option of either copying the length-of-a-runway link or the shortened link. As counter-intuitive as it is, copy the long link.

Now go to http://bitly.com. Paste your long link there and it will automatically shorten it for you. The cool thing is, you get to customize the link if you want. For example, the affiliate link for my thriller The Torah Codes is http://amzn.to/ TheTorahCodes. If anyone uses that link to buy my book, I get money for a sale and some change for the referral.

But here’s what I really love about bitly.

It tracks where the links were clicked. I can go into my bitly account and see how many clicked on the link from Facebook, how many from Twitter, how many from YouTube, and how many from direct emails. Based on this past activity, I get a better sense of where to devote more of the marketing time. In my case, most people come from Facebook, so I know to spend more of my time there.

Now here’s the legal thing. Anytime you are an affiliate, you must have a disclosure statement that the link is an affiliate link or that you make some money if they were to click on the link and buy the product.

Which begs the question, “If you’re promoting your own product, who would buy it thinking you’re not making any money Continued on pg. 8

September 2012 AuthorEntrepreneurMagazine.com | 7

from the sale?”

I understand the logic behind the Federal Trade Commission’s demand that people be transparent behind their affiliate marketing. If, for example, I were to say that you should buy from Bernhardt’s Toupees because they’re the best toupees in the world, and it turns out I make $5,000 from every toupee my affiliate link sells, that bit of income information should be revealed to the buyer before they spend $7 million on a piece of shag.

Especially if they could have had a nice cut of rug for $20 instead.

to add humor. “If you click on this link and buy my book, I’ll be able to order a glass of milk with my sandwich for lunch today,” or “Buy my book using this link and I can convince the bank to let me stay another seven minutes in my house,” or “I bet my wife $3 that I can give myself a goodlooking haircut. If you buy my book I can pay off the bet.”

Be an affiliate for your own book.

You deserve to be paid not only for writing a good book, but for also giving Amazon business.

If I have an Amazon link to my book and you click on it and buy my book, it should come as no surprise that part of the sale goes to me.

But being my own affiliate is different. If I have an Amazon link to my book and you click on it and buy my book, it should come as no surprise that part of the sale goes to me. Do I really need to put a disclosure next to the link that says something like “If you buy my book, I’ll make money from the sale?”

Well, maybe I should. Maybe that will actually help the sale. Considering that there are a lot of indie authors who don’t make any money from sales of their books, especially at indie bookstores, maybe the disclosure can be an incentive to buyers.

Try “Unlike buying my book at indie bookstores, if you follow this link and buy my book on Amazon, I’ll actually make some profit.”

There are other ways you can have a disclosure to help boost the sale. One is

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Ezra Barany is an author and mentor to authors. He started his career of freaking out readers with his suspense and thriller stories in college. In March 2011, Ezra unleashed his first novel The Torah Codes, a thriller, now an award-winning bestseller in both the U.S. and the U.K. In his free time, he writes mushy love songs inspired by his wife and book coach Beth Barany. Ezra now lives in the San Francisco Bay Area where he is working on his next book when not terrorized by his two cats.

More at: http://amzn.to/TheTorahCodes.

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September 2012 AuthorEntrepreneurMagazine.com | 9

Copyright and the Right to Copy

Image from opensource.com

By Catherine Bramkamp New writers often ask if they should copyright their work before sending it out to agents or publishers. One of my clients worried that her e-book could be copied and distributed without her permission.

She should be so lucky.

In the US, copyright is automatically extended to “any tangible medium of expression” which includes literary, musical, dramatic, pictorial, pantomimes, motion pictures, sound recordings, architectural works, and the the angry rock my youngest son painted in a flurry of creative output that included a hand worked lizard and a structure of dubious integrity built entirely with popsicle sticks.

In the US, everything you write is copyrighted, but do you own all those words?

So, as an author, as soon as you put your deathless prose to the screen, paper, foolscap, train car, overpass, you are covered. In the US, everything you write is copyrighted, but do you own all those words? Consider how difficult it is to be entirely original. It is almost impossible to hold a conversation that is not burdened

with other people’s phrases, terms, brand names or ad slogans.

We repeat what we hear, and the more we hear a phrase or slogan the more likely we are to repeat it, not only in our daily conversation but in our art as well. Years ago, that was the point. Ad campaigns are still considered successful if they go viral and everyone talks about.

I am one of those artists who believes that procurement and use of a corporate image or phrase is the tax for its iconic status.

But then we start using those same words and phrases in our art, our blogs, and our novels.

And at the corporate level, the game changed. There is a wavy, skinny line that divides the hope that the ordinary word refreshes will conflate with an image of Diet Coke, and the act of suing an artist for painting repeating patterns of that same coke can, naming it Refreshes and selling for profit. I am one of those artists who believes that procurement and use of a corporate image or phrase is the tax for its iconic status.

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Continued on pg. 12

Or more to the point, do they want to be a household name or not? More importantly, do they want the brand, both the object and the image, to last?

Because the only way to make sure anything lasts is to allow its use, not protect it into oblivion.

Artists steal everything. It’s our job, it is how we make art. In fact, the only way to avoid direct plagiarism is to steal from as many sources as possible which in turn increases artistic influences which ironically results in original work. Steal from many – originality. Steal from one – plagiarism.

The question should be, do I want to hoard my work so no one copies me and takes advantage of me, or do I want to live forever because of my art?

No other author can filter the pastiche of modern culture in quite the same way as you. No one reacts to the world with the same observations. So forget protecting every damn word you write – that’s done. Consider your artistic legacy. The question should be, do I want to hoard my work so no one copies me and takes advantage of me, or do I want to live forever because of my art?

If you want your work to last – pass it along. Allow for re-interpretation, the movie from the book, the painting from the sculpture, the story from the ad jingle.

If you are lucky, the new version will kindly reflect on you and give your own work that much more of a boost.

The sales for Mrs. Dalloway rose after Michael Cunningham’s The Hours. More

copies of Mrs. Dalloway circulated after the movie version of the book released.

Would Virginia Woolf be grateful to Cunningham? Probably. Her great friend was TS Eliot and he stole and re-printed indiscriminately in his work. Didn’t bat an eye, it was art. The Waste Land is filled with phrases from other works, but Eliot was original in the placement and the context, like painting a mustache on the Mona Lisa.

Steal from many – originality. Steal from one – plagiarism.

We don’t work in a vacuum, that very idea is patently ridiculous. We take, we re-frame, we rewrite, we re-work. And we are protected.

My advice to artists is share, hand out information, and give away some of your work. If you don’t share, you won’t get noticed. And if someone steals your words, it is a small price to pay for immortality.

Catharine Bramkamp is co-host of the popular podcast Newbie Writers. She is a writing coach, author, and university instructor. Her most recent books are Ammonia Sunrise, In Good Faith, and A 380 Degree View.

She divides her time between the California Gold Country and Wine Country. More about Catharine at www.YourBookStartsHere.com.

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September 2012 AuthorEntrepreneurMagazine.com | 13

Top 10 Things Authors Need to Know About Contracts

By Kelley Way

Image by AK Rockefeller

The day has finally dawned! After all your hard work and endless rounds of submissions, you have a publisher that wants to publish your book. But when the publisher hands you the contract, should you just sign on the dotted line, or should you look it over first? If you did look it over, what would you be looking for?

Here’s the top 10 things to know when you’re handed a contract, that publishers might wish you didn’t:

1. Know what the publisher is promising. There are publishers who will put your book in print, but they will do it on your dime, with no editing and little to no marketing. If you’re fine with that, there’s no problem, but know going in what you’re getting out of this agreement.

2. Know what rights you are granting to the publisher.

Publishers do not need to own the Continued on pg 15

copyright in your work in order to publish your book; all they really need is a license giving them permission to copy and distribute the work. Granting other rights, such as the right to make minor changes and use your name and face when marketing, is also a good idea.

Just make sure you’re comfortable with what you’re giving them.

Publishers do not need to own the copyright in your work in order to publish your book 3. Know and understand the entire contract.

Publishing contracts can be long, and they’re certainly boring, but you don’t want to find out you promised something you’re now regretting. If reading all the way through is just too painful, there are people out there who can read it for you. Agents and lawyers get a perverse pleasure out of reading and translating such things, so don’t hesitate to ask them.

4. If it’s not in the contract, it’s not part of the agreement. Sure, there are some things that are just givens. But that’s the exception.

The rule is that if something is not in the contract, even if you talked about it before signing, it doesn’t exist. If there’s a particular thing you want from the publisher, make sure it’s in the contract.

5. All of the contract terms should be clear and specific.

One of the big reasons contracts are so boring is because they often

turn redundancy into an art form.

Lawyers do this because they want to make absolutely sure there’s no confusion about what is being agreed to. Admittedly, it can be taken to the extreme, but it should at least be clear enough that a random passerby would understand what was being promised.

6. Contracts are negotiable! Don’t come to the table thinking that the contract is a take-it-or-leave-it deal. Some publishers may be hard nosed about it, but most are open to some bargaining.

7. When negotiating, author payments are the biggest points of contention. Seems a little obvious, right? After all, you wouldn’t publish your book if you weren’t hoping to make a profit on it. The publisher knows that, too, so he’ll use it as a bargaining chip to get other concessions from you.

The rule is that if something is not in the contract, even if you talked about it before signing, it doesn’t exist.

8. Know what happens if the agreement is terminated. No one likes to think about a deal going south, but unfortunately it happens all the time, which is why contracts always cover what will happen in case it does. A good contract will specify when a party is allowed to back out, and what happens to the book and the advance or unpaid royalties (depending on where

Continued on pg. 16 September 2012 AuthorEntrepreneurMagazine.com | 15

the parties are in the process).

The biggest thing to watch for is that you get all your rights back if the contract is terminated.

Don’t come to the table thinking that the contract is a takeit-or-leave-it deal.

9. Know the forum and venue for a dispute. Most contracts these days have a clause saying that if there’s a disagreement between the parties, they’ll settle it in arbitration rather than in court. In either case, the contract will usually say where the trial or arbitration will take place. Make sure that the location is one you’d be willing and able to travel to, if matters go that far.

10. Know who’s liable for what, and who’s paying for the lawsuit.

Publishing contracts always have an indemnity clause, where the author swears the work is his own and there’s nothing in it that a person could reasonably sue him for. If the publisher is sued based on the contents of the book, the author promises to take full responsibility and reimburse the publisher. How much the author pays, and what he pays for, is somewhat negotiable.

Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and hopes to one day be in a position to take her own advice on publishing contracts in her other life as a writer of YA fantasy novels. Kelley Way can be contacted at KelleyAWay@gmail.com.

Image by Geoff Steams

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Scaffold Your Literary Life To Outsource or to Outsource: That is the Answer

By Barbara Cole “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” ~Mark Twain

bony man with graying, stubbly hair and extremely bad breath. His dental assistant wife was tall, thin, bright red-lipped, and smelled of cigarette smoke. She had a bouffant hairdo, teased and knotted, coiled into a tangled nest atop her head.

I know too, that with effort on my part, I can unravel the meaning and comprehend the content.

The question is how much do I want to understand?

Image by SJ Sanders

Details are my business, but fine print and legalese strike fear and loathing in my heart. It reminds me of early childhood dental experiences I would rather keep buried in the deeper recesses of my subconscious.

Trepidation and downright fear were my constant companions on trips to the dentist. I knew what awaited me and it wasn’t pleasant. The dentist was a tall, thin,

In the dentist chair, I could only observe and try to decipher the picture above me, staring up at this strangely colored, mass of hair, frost-white blonde with tinges of yellow-orange around the edges, highlighted by the glare of the florescent lights streaming down from above her head, the white, popcorn ceiling panels floating above it all blended into the white, lab coat she wore.

All the while he drilled into my tiny teeth, they gossiped in soft, whispery voices, as if they thought I couldn’t hear what was being said. I remember distinctly talk of Marcie sleeping with Joe and Joe being married to Floe. Quite incomprehensible to my eight-year-old mind, I could tell by their tones that whatever Marcie, Joe, and Floe were doing, it was complex and not good.

And like those incomprehensible conversations floating above my head, legal jargon flows and rustles about my brain.

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Continued on pg. 19

I know the words, but the meaning is just beyond my grasp. I know too, that with effort on my part, I can unravel the meaning and comprehend the content.

The question is how much do I want to understand?

There was nothing I could do to untangle that bouffant hairdo and make sense of the conversations swirling beyond the drone of the drill. But I can do something about the haze I feel when I am confronted with legal aspects of my business. I can wade through literature, find Copyright for Dummies, if it exists, and pick through the maze bit by bit until I understand these unfamiliar lands.

If I attack it one piece at a time, though I probably will never come to revel in my knowledge, I will come to understand and perhaps feel comfortable enough to know how and to whom I can outsource the various legal pieces of my business. And therein awaits my salvation – outsourcing.

I can do something about the haze I feel when I am confronted with legal aspects of my business.

I feel elated to have stumbled upon this concept in my legal research. After all, out there in the big, wide world there are lawyers, accountants, marketers, and web masters who need my business to thrive. I am feeling corporate already.

Why not create jobs in these hard times? I know myself. Sure, I read articles on how to copyright my material and the information sticks for a short while, but sooner, rather than later, I find myself dozing off, my head wobbles, nods, and finally flops. I am out cold with

exhaustion from the mere effort of trying to force myself into the unnatural position of learning dry, boring, business facts that I am, if not unable, unwilling to retain.

Image by Helga Weber

If I continue to try and stuff my mind with these distasteful morsels, my creative abilities will suffer. Guilt, pain, and frustration will take up all the room in my head and there will be no space left for the truly important details. The rich, deep, luscious words of my craft will be crammed into the corners of my brain gasping for air. My serene personality will transmogrify into the dreaded, grumpy goon. I owe it to myself as an artist to outsource, don’t I?

I owe it to myself as an artist to outsource, don’t I? Rather than drown in confusing, contradictory paperwork, I will search for local professionals who thrive in the processes within which I shrivel. I will find experts who speak laymen’s language I understand, to walk me through the book contract jungle, to search out marketing venues and schedule interviews, and to traverse the technical mazes that magically create websites, blogs, and tweets.

Continued on pg. 20 September 2012 AuthorEntrepreneurMagazine.com | 19

I know I am smart enough to do it myself, but weighing the time needed to master these abilities and the fact that I start up the learning curve only to falter and fall back into my comfortable, creative bubble, I know I am better off finding a community of professionals to call on when in need. Indeed, to outsource is the answer.

Barbara Millman Cole is an award winning author of Short Literary Fiction, content editor, and creativity coach, who helps writers delve deep to discover their true meaning. Understand why you create so you know what to create. Contributing author of Creativity Coaching Success Stories and author of the forthcoming book, The Painted Woman and Other Short Stories, she can be reached at bmillmancole@sbcglobal.net. ©2012 All rights reserved.

Handing off your work - Image by Flickr’s “Bixentro.”

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Trademark Considerations for Your Writing Business

By Cheryl Derricotte In the 21st century, a successful writing business extends far beyond the page.

Diversification of income, which includes not only print and e-books, but also speaking and consulting services, is increasingly the norm. For 11 great ideas on products flowing from books see Susan Daffron’s article on this topic at http://www.spawn. org/editing/bookintoproducts.htm.

Collateral products, such as bookmarks, journals, e-reader covers and tote bags all help the bottom line and can provide a harmony to an author entrepreneur’s work. And the best way to protect that harmony is with a trademark.

A trademark is a legal vehicle to protect your brand. It gives you the exclusive rights to license via affiliates or franchises.

Trademark will also protect you against copycat businesses and cybersquatters – people who register your business name as a domain name to take business from you.

To get started, determine if you need to trademark your business name and/or logo. If you plan to market any other products under your business name in addition to books, I suggest that the answer is “yes,” you need to get a trademark.

Begin by doing a little research. Go online and see if there are any pending applications for your business name.

The US Patent and Trademark Office can help you do a search via the office’s website: http://www.uspto.gov/trademarks/ process/search/.

Once you have determined that your business name is available, you have to decide what products to trademark. The short answer is: trademark everything!

A very smart filmmaker friend of mine, Jon Gann, creator of the DC Shorts Film Festival taught me this lesson and I am happy to share it with you. Of course you want to trademark your books and e-books, but you also want to trademark your tote bags, e-reader covers and any other product you may brand, too! Most importantly, you will trademark not only the words of your business name but your graphic logo. This means you will file TWO trademark applications.

A trademark is a legal vehicle to protect your brand.

Since I was starting an indie publishing company to publish books about a variety of topics, I knew I wanted a trademark that could protect and extend the brand I was creating. My two trademarks cover the words “30 Minute Manager” and my graphic clock logo. My trademarks include my main business focus — development of how-to articles and books in 10 major topic areas, but also covers things like educational online conferences. Take some time Continued on pg. 24

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AVAILABLE SERVICES BOOKS Being The Grown-Up, a practical guide for caregivers of loved ones with terminal illnesses (Winter 2012).

CONVERSATIONS Confirm Cheryl Patrice Derricotte, Chief Information Officer of 30 Minute Manager, for your upcoming special event, conference, radio and televsion show.

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September 2012 AuthorEntrepreneurMagazine.com | 23

to nail down your specific topic areas, as it will strengthen the trademark process and allow you to fully grow into your brand when the trademark is conveyed.

Be advised that trademark is a lengthy government process.

Be advised that trademark is a lengthy government process. I got my marks approved a year or so after my initial filing.

Trademark research and registration costs vary. A good intellectual property attorney may cost between $2,500-$4,000 depending on your location. A more affordable option is to use one of the online services like www.LegalZoom.com or www.

Trademarkia.com.

media control. Trademarkia also includes the ability to register your mark globally. As of today’s writing (August 2012), prices for the most common trademark locations began at $159 for the United States to $599 for Canada.

This article offers some strategies to garner a trademark. I hope it helps you protect your brand and build a diversified writing business with related marketing products.

1. LegalZoom (https://www. legalzoom.com) Legal Zoom’s services start at $169 plus associated U.S. government filing fees. The service can help you file for a business name trademark, a logo trademark and register a slogan, if you have one. Legal Zoom will also walk you through the process of foreign trademarks – a good option if you plan to sell your books or products in the global marketplace.

2. Legal Force Trademarkia (http://www.trademarkia. com/) Legal Force Trademarkia has a powerful, free search engine right on the home page of its website. In addition to letting you check to see if your business name is already trademarked, it also searches social media. This is very helpful, as you will want to have domain name, facebook, twitter and all other social

Cheryl Patrice Derricotte, is the Chief Information Officer for 30 Minute Manager, LLC, an indie publishing company she founded in 2011. Her new book: Being the Grown-Up, a guide to managing a loved one’s terminal illness and death will be published this winter. Stay in touch with Cheryl at www.30minutemanager.com.

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All’s Fair in Love and War But Not in Copyright Law

By Kelley Way One of the questions I hear most frequently from authors is: When can I use someone else’s copyrighted material in my own work?* Stories can’t be written in a vacuum, and many of the sources authors would like to draw on are copyrighted. As many copyright owners are ready to sue at the drop of a hat, it’s an excellent question to ask. Generally, there are four answers: 1. The work has no copyright.

Copyright only protects original, creative works of authorship. You can’t copyright a uniquely shaped rock

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you found while hiking; you didn’t create it. You also can’t copyright facts or ideas, only the way they are described or expressed (and even that is limited). So if you only want to use facts or data found in a copyrighted work, or want to use a single idea from said work, there is no copyright violation. In addition, government works are not copyrightable.

2. The copyright has expired. Any work published before 1923 is in the public domain – its copyright has expired. Anything created (not published) after January 1, 1978, the day the revamped Copyright Act went into effect, is copyrighted. Anything published in between those dates Continued on pg. 27

is uncertain – the copyright owner had to renew his or her copyright to keep it, so it may or may not still be copyrighted. Research would be required. Luckily, the old Copyright Act required authors to register with the Copyright Office when they published, so you at least know where to look.

When can I use someone else’s copyrighted material in my own work?

3. The copyright owner gives permission. This is the safest route to go, particularly when you don’t know if your intended use of the work counts as infringement. However, permission typically comes with a price tag, so you’ll have to decide if you’d rather pay it or go without and risk a lawsuit. For example, if you want Mickey Mouse to appear in your children’s book, you had better get permission, because Disney defends its copyrights with an almost religious zeal. On the other hand, if you want to use the lyrics to the “Happy Birthday” song (which is copyrighted) in your novel, you might be able to get away with it, since the copyright owners rarely sue. Just remember that “rarely” does not mean “never,” and while a copyright owner may have never sued before, there’s always a first time for everything.

4. The fair use doctrine applies.

The fair use doctrine exists to allow authors to use copyrighted material, in limited circumstances, without the permission of the

copyright owner. The courts use a four-factor test, outlined below, to decide whether a use is fair. For an example, I’ll use Harper & Row v. Nation Enterprises, a major fair use case. In this case, Harper & Row had agreed to publish former President Ford’s autobiography, and contracted with Time Magazine to write a prepublication story on it, using excerpts from the book. Nation Enterprises got hold of a copy of the book and wrote their own story, with excerpts, “scooping” Time Magazine.

Time terminated the contract with Harper, and Harper sued Nation. The case went up to the Supreme Court, who used the four-factor test: a. The purpose and character of the use. Courts look more favorably on an unauthorized use if it’s for a good cause. Criticism, comment, news reporting, teaching, research, and scholarship are presumptively fair uses. Commercial gain weighs against fair use. In Harper, the court found that the magazine used the article to sell copies, more than to report news, so this round went to Harper.

You can’t copyright a uniquely shaped rock you found while hiking; you didn’t create it. b. The nature of the copyrighted work.

Copyright was designed to protect creative, artistic works, like fiction, music or art. These are given more protection than, for example, news reports or travel guides. This round went to Nation, since an autobiography relates facts and thus isn’t as strongly protected as a more creative work would be.

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c. The amount used. This factor looks at both the quantity and quality of material taken from the copyrighted work. Nation’s excerpts from the book, while a small percentage of the overall text, centered around Ford’s decision to pardon Nixon, which the court determined was the “heart” of the book, because that was the part people would buy the book to read.

As such, this round went to Harper. d. The effect on the market. This is arguably the most important factor for the courts. If your use of the material would mean that people would buy your work instead of the original, or otherwise harm the original’s sales, fair use likely won’t apply. In Harper, Harper had already lost money from the cancellation of Time’s contract, so it won this round and the overall case.

Fair use is great when it applies, but unfortunately you have to go to court to find out if it does; nothing is automatically fair use, and it is always decided on a case-by-case basis. As another lawyer once wisely said: “What does it mean to have a great defense? It means you’ve been sued!”

This article only scratches the surface of this topic, and hopefully provides some guidance to the many authors and publishers struggling with this issue. And remember, if in doubt – ask a lawyer.

Their job is to know the law so you don’t have to. *For the sake of simplicity, I’m falling back on some basic legal terms. In legalese, a “work” is anything that can be copyrighted (books, movies, songs, pictures, etc.). Likewise, an “author” is anyone who creates a work, not just a book author.

Image by Beth Barany

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Lucas Valley, Marin County, California - Image by Sean Gloster

Legal Issues for Authors & Publishers Letters and the Law

Image by Mike Seyfang

By Annmarie Lockhart A writer friend of mine recently asked why I ask writers to credit vox poetica with first publication should their work appear elsewhere. She was concerned, of course, with inadvertently violating a legal obligation. This led to a discussion about legal obligations and customs, issues that matter to you and your clients. Consider this a primer for things you need to clarify for your clients.

In the above mentioned situation, we’re not talking about legal obligation, we’re talking about good practice and observing the custom of the trade. Editors pride themselves on correct attribution and acknowledging their part in the publishing process. If a writer doesn’t tell me that work I’m publishing has already appeared elsewhere, I run the risk of offending the original publisher by not crediting them with first publication. This is not something I want to do.

Consequently, when work that has appeared at vox poetica shows up elsewhere uncredited, it irritates me. I have

put a handful of writers on my “no-publish” list for not mentioning that their submission is technically a reprint.

Let me be clear: That is a stupid reason to have your work rejected and it’s very easy to avoid. Your clients look to you to help them meet their publishing goals. Reiterating the importance of following submission guidelines can never be overdone.

So where do things get legal? Well, it all starts with copyright. American copyright law protects a writer from having their work usurped. And the law is liberal.

I have put a handful of writers on my “no-publish” list for not mentioning that their submission is technically a reprint.

How do you establish copyright? Simply write. That’s right. It’s as simple as that.

You do not have to apply for a copyright.

You do not have jump through hoops.

When something is published in a journal or anthology, the writer retains copyright ownership of the original work, the publisher retains ownership of the collection.

This means a writer is not allowed to duplicate or reprint the entire journal issue, but that writer is absolutely entitled to publish the individual piece elsewhere in any context or capacity.

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Continued on pg. 32

So now that we’ve established the primary rule: the writer owns the work, let’s talk about contracts. It is imperative for you to make sure your clients know to read the contract carefully!

How do you establish copyright? Simply write.

Contract law allows for implicit as well as explicit interpretation, meaning a writer can implicitly agree to a publisher’s terms simply by submitting work in the first place. Make sure your clients understand that submitting work may constitute acceptance of terms that might not be delineated on a guidelines page.

A publisher’s contract might consist of a 5-10 page document or it might just be a concise email. A publisher will usually ask a writer to indicate consent. Writers should pay attention to the stated terms.

If anything seems off, it is incumbent on the writer to ask the publisher.

Many publishers will amend terms that make a writer uncomfortable. Or they might be willing to explain in greater detail why they’re asking for certain permissions or what the language specifically means. Also, remind your writers to retain the emails that make up these conversations for future reference should a conflict arise.

It is incumbent on the writer to ask the publisher.

A typical publisher’s contract will specify that a writer retains copyright of their work, that the publisher retains first distribution rights in print or electronically in the US or elsewhere, that permission for

use requests must be made of the publisher, and that credit for first publication be granted upon later reprint. Additionally, a publisher may ask a writer to attest that the work is his or her own, and that it is original and hasn’t appeared elsewhere.

For paying publications, a writer will need to sign a 1099 form and provide a social security number. For royalty payments that equal or exceed $600 annually, a publisher is required to produce a 1099 and report that payment to the IRS. It is up to the writer to pay the appropriate taxes on that income. Paying publishers will not accept your work if you don’t provide your social security number. These obligations are not publisher created, they are mandated by the IRS. Your writers need to understand these requirements so as, once again, not to have their work rejected because they couldn’t follow directions.

Legal issues arise in publishing all the time. For specific questions regarding a legal matter of concern to you or your clients, consult a lawyer with knowledge of the specifics of publishing.

Annmarie Lockhart is the founding editor of vox poetica, an online literary salon dedicated to bringing poetry into the everyday, and unbound CONTENT, an independent press for a boundless age. A lifelong resident of Northern New Jersey, she lives, works, and writes two miles east of the hospital where she was born. More about Annmarie’s work here: http://unboundcontent.com/.

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Early Publisher

September 2012 AuthorEntrepreneurMagazine.com | 33

A Short List of Books on Literary Law

Compiled by Beth Barany In my research I’ve come across several books on literary law – yep, I own them all! I recommend all author building successful careers inform themselves as much as they can on this topic.

Every Writer’s Guide to Copyright and Publishing Law: Featuring Internet and Electronic Copyright Information by Ellen M. Kozak Fair Use, Free Use and Use by Permission: How to Handle Copyrights in All Media by Lee Wilson The Writer’s Legal Guide: An Authors Guild Desk Reference by Tad Crawford and Kay Murray Business and Legal Forms for Authors and Self-Publishers by Tad Crawford Literary Law Guide for Authors: Copyright, Trademark, and Contracts in Plain Language by Tonya Marie Evans

Beth Barany, Editor-in-Chief & Publisher of the Author Entrepreneur Magazine, helps authors write, publish and market their books through her coaching & consulting practice, based in Oakland, CA. She presents workshops internationally, and is the author of The Writer’s Adventure Guide, Overcome Writer’s Block, and the new Twitter for Author: Social Media Book Marketing Strategies for Shy Writers. She is also the Grand Prize winner of the California Book Fiction Challenge for her YA novel, Henrietta The Dragon Slayer (Book 1 of the Five Kingdom Series).

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Overcome Writer's Block: 10 Writing Sparks to Jumpstart Your Creativity is designed to get you writing if you're left­brained, right­brained, or a bit of both.

Written by Beth Barany, Master Writing Instructor, who has been where you are, this guide comes with 5 bonuses and other secret goodies!

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Beth Barany's Overcome Writer's Block: 10 Writing Sparks to Ignite Your Creativity is a creative, easy­to­follow road map for reaching your goals, finishing your book, and achieving your writing dream, whatever it may be. ― Patricia Grasso, Author, patriciagrasso.com

September 2012 AuthorEntrepreneurMagazine.com | 35

Image by Romy Harness

Want us on your book publishing and marketing advisory team? Contact Beth@BethBarany.com today!

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Event Listings September 15, The 4th San Francisco Writing for Change Conference: Changing the World One Book at a Time. Unitarian Universalist Church, San Francisco, CA. September 20-23, Brooklyn Book Festival, Brooklyn Borough Hall and Plaza, NY is the largest free literary event in New York City. http://www.brooklynbookfestival.org/BBF/ Home.

September 22, Sonoma County Book Festival, Old Courthouse Square, Santa Rosa, CA. attended by thousands of book lovers. http://www.socobookfest.org.

Sept. 26-30, Fall For the Book Festival, George Mason University’s Fairfax Campus, Fairfax, VA, sponsored by George Mason University, Fairfax County Public Library and Barnes & Noble. Attended by more than 150 authors. http://www.fallforthebook.org.

September 27-30, Women’s Fiction Festival.

Matera, Italy. http://www. womensfictionfestival.com/. Presentations on craft and industry. Special: “Twitter for Authors with Beth Barany.”

September 28-30, Podcamp East, Wilmington, DE http://www.podcampeast. com/.

October 10-14, Frankfurt Book Fair, in Frankfort, Germany. Considered the biggest book show in the world. www.book-fair.com.

October 13, 1-5:30 pm, Self-Publishing Boot Camp, Stanford University Campus. A halfday intensive that will set you on the right path to publishing your books with minimal hassle, using the most cost-effective processes, with the most reputable vendors.

More at http://selfpubbootcamp.com.

October 13-14, West Virginia Book Festival, is destination for over 7,000 people whom go to network and hear from various authors in West VA. http://wvbookfestival.org/.

October 14-16, Southern Festival of Books: A Celebration of the Written Word. Tennessee Legislative Plaza, Nashville, TN, attracts more than 200 authors from throughout the U.S. http://www.humanitiestennessee.org/ festival/current.php.

October 20-21, World Authors Conference online. Want to be a better and more profitable author? Join Beth and over 17 other world-class experts for the World Authors Conference. Beth’s got a superspecial offer for you. Get the details at www.

WorldAuthorsConference.com/beth-deal.

September 28-30, Baltimore Book Festival, located at Mt. Vernon Place, The event attracts more than 100 authors. http:// www.baltimorebookfestival.com/.

October 27-28, Texas Book Fair, State Capitol Building, Austin, TX, established in 1995 by First Lady Laura Bush, a former librarian. More than 45,000 attend. http:// www.texasbookfestival.org/.

September 28-30, South Dakota Festival of Books, Sioux Falls, attracts over 40 nationally well-known authors http://www. sdbookfestival.com/.

November 9-10, Kentucky Book Fair, Saturday, Frankfurt, KY. Attended by up to 5,000 people including 150 authors. http:// kybookfair.org/.

September 30, West Hollywood Book Fair, at West Hollywood Park, more than 130 exhibitors expected! http://www. westhollywoodbookfair.org.

November 11-18, 2012, Miami Book Fair International. Hosts over 350 authors to discuss their work and 250 publishers. http://www.miamibookfair.com/.

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