Friday, December 31, 2010

44 Places Where Writers (and Other Creative People) Can Obtain Free or Low-Cost Legal Help

Lawyers for the Creative Arts ("LCA") in Chicago maintains this list of 36 other organizations  throughout the United States (and one in Canada) that provide legal information to writers and artists and, in some instances, free or low-cost legal representation to individuals and organizations that meet their qualifying criteria.  I know the good work that Volunteer Lawyers for the Arts in New York has done (it's on LCA's list) and have worked with them from time to time.  I am not by any means familiar with all of the organizations on the LCA list, but they are likely worth exploring.

Harvard University's Berkman Center has launched an Online Media Legal Network, described as "a network of law firms, law school clinics, and individual lawyers across the United States who are interested in assisting online journalism ventures and other digital media creators address their legal needs."  Some may provide free or reduced fee assistance.

Membership organizations such as The American Society of Journalists and AuthorsThe Author's Guild, and the National Writers Union offer some useful legal information to website visitors and many more benefits, including various legal services, to those who become members.  There are some eligibility requirements for membership.

A more specialized resource is the Reporters Committee for the Freedom of the Press aimed, as the name would suggest, at journalists.  The RCFP maintains a legal defense hotline for professional reporters and media lawyers dealing with legal emergencies at 800-336-4243.  (Their services are not directed toward literary writers.)

Two other organizations that do much good work for writers are Poets & Writers, Inc. and PEN American Center, albeit I frankly do not know whether they provide referrals for volunteer legal services.

If you know of other organizations that belong on this list, please post a comment to let me know.

Thursday, December 30, 2010

When Is It Risky To Write That Someone Is "Gay"?

There are two starkly different varieties of lawsuits that have arisen from statements that someone is gay:  libel cases in which the statement is alleged to be false; and privacy cases in which the statement is acknowledged to be true.  Both types of claims may become rarer as a result of America's changing values and changing laws.

As to libel claims, there is an argument (indeed, a persuasive one, in my view) that it should no longer be regarded as libelous to call someone gay, even if the statement turns out to be false.  Libel requires a "false and defamatory statement of fact," which is typically defined as a statement that "tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace" among right thinking people.  Not only is it indisputable that the opprobrium formerly associated with homosexuality has diminished, but two major legal developments have taken place in recent years.  First, in 2003, the Supreme Court ruled in Lawrence v. Texas that laws criminalizing private, consensual same-sex sexual activity are unconstitutional.  Second, at least twenty states and the District of Columbia have outlawed employment discrimination against persons based on their sexual orientation, not to mention those states that have recognized same-sex marriages.

In the midst of this changing legal and social climate, it's not surprising that a federal court in Massachusetts stated as early as 2004 that, under Massachusetts Law, a false imputation of homosexuality was no longer defamatory.  And, earlier this year a New Jersey federal court reached the same conclusion, finding, in a case involving two radio "shock jocks," that a statement arguably implying that someone is a homosexual is no longer capable of defamatory meaning under New Jersey law.  

Regrettably, it is by no means clear that other courts will rapidly fall in line; indeed, these cases may not be the last words on the law in Massachusetts and New Jersey.  In fact, earlier this year, a federal court in Texas reached a conclusion opposite to that of the New Jersey court, in rather similar circumstances, holding that a radio personality's statement that an airport security guard was "gay," gave rise to a cause of action because "the imputation of homosexuality might, as a matter of law, expose a person to public hatred, contempt, or ridicule."  The Texas decision is reported here.

While the legal times may be a-changin', it is still far too early to conclude that they have, in fact, reliably changed.  So, as a writer, you should be aware that if you publish a statement that an identifiable living person is gay, you could still be held liable for it, if you turn out to be wrong.   (Provided, of course, that the plaintiff can prove all of the other elements of a defamation claim.)

But what about the flip side?  Can there be liability for publishing a true statement that someone is gay when that fact is not already generally known?

Many -- but not all -- states recognize a legal cause of action for "public disclosure of private facts."  A plaintiff in a "private facts" case must prove that the defendant published highly personal information about plaintiff's life that has not previously been publicly revealed, that is not of legitimate public interest, and the disclosure of of which would be offensive to a reasonable person. A terrific short summary of the law pertaining to public disclosure of private facts is available on the outstanding Citizen Media Law Project site.

The most famous lawsuit involving "outing" was brought by ex-Marine Oliver Sipple, the hero who intervened to save President Ford's life, when Sara Jane Moore attempted to assassinate him in 1975.  Subsequent press coverage of the assassination attempt, including articles in the San Francisco Chronicle, reported that Sipple had been a campaign worker for Harvey Milk and a figure in San Francisco's gay community.  Sipple was distressed by the coverage of his personal life, in part because he had never disclosed his sexual orientation to his parents, brothers, or sisters, who learned about it for the first time from the news accounts.  But Sipple lost his case because the fact that he was gay was not deemed "private," given that his sexual orientation and gay rights activism were already known "to hundreds of people in a variety of cities."  Moreover, his personal life was "newsworthy" because, by his actions in saving the President's life, he had become -- albeit involuntarily -- a public figure.  The same newsworthiness arguments might conceivably lead to a similar result in a case of outing a closeted elected official who has hypocritically railed and voted against gay rights.

But change the facts a bit and you could easily get a different outcome.  Assume that the person being outed is not a public figure.  And assume further that only a relatively small number of people were aware of his or her sexual orientation.  In that circumstance, the outed person might have a claim for public disclosure of private facts.  For example, in Diaz v. Oakland Tribune, a California court found that a student political leader could maintain a claim for public disclosure of private facts against a newspaper and a columnist for reporting that she had undergone a sex change operation -- a fact that was previously known only to her immediate family and closest friends. 

By analogy to the Massachusetts and New Jersey libel cases, it could be argued that the waning stigma associated with homosexuality in 2011 makes it less likely that a truthful statement that someone is gay would be deemed highly offensive to a reasonable person, even if he or she has not widely disclosed his or her sexual orientation.  That said, it can be difficult to see the ethical justification for publicizing the sexual orientation of a non-newsworthy, private figure who has not openly acknowledged it himself/herself, particularly when so many young people struggle mightily with the question of whether and how to make the disclosure to their friends and family.  I  realize this response is, to some degree, inconsistent with my view of the private figure libel cases. Maybe it's because reported instances of private figure outing often seem to arise in the context of alleged teen bullying, as in this haunting case, rather than in the context of well-intentioned journalism.

So, writers, if you are going to publish a statement that someone is gay, make very sure you are right, and, make very sure that the person has already publicly disclosed his or her sexual identity or that there is a compelling public interest in doing so.

Difficult questions arise in the context of memoirs, when telling your own story truthfully sometimes requires disclosing intimate facts about those you are close to.  There are some important cases that deal with this dilemma, and some courts have cut writers some slack -- a subject to which I will return in a later post.

Postscript:  Of course, writers should not feel legally inhibited about referring to openly gay public figures as gay.  And, of course, in openly gay communities, and in the publications that cover them, discussion of non-public-figures' sexual orientation is entirely commonplace.  In communities where people freely and frankly make known their own sexual orientations, the public discussion of sexual identity is unlikely to offend and unlikely to give rise to legal disputes.

Tuesday, December 28, 2010

Should Congress Extend Copyright Protection to Fashion Designs?

While this blog focuses primarily on writing and writers, I do take an occasional frolic and detour into the public policies underlying copyright and copyright's effect on creative artists in other fields.  In this regard, you may have read that Senator Schumer and others have introduced legislation that would provide a new three-year term of copyright protection to fashion designs.  The text of the bill, known as the Innovative Design Protection and Piracy Prevention Act, is reproduced here.  The Judiciary Committee unanimously approved the bill earlier this month.

Clothing designs have never before been the subject of copyright protection in the United States (although fabric prints -- of sufficient originality -- can be).  A few years ago, Tyler Cowen, the always-interesting economics blogger, ran a fascinating post on how the fashion industry works without copyright and and wondered aloud "why the absence of IP protection has led to (apparently) acceptable results." Worth revisiting in light of the proposed new law.

And here is an informative article on the history of the Innovative Design Protection and Piracy Prevention Act (from Louis Ederer and Maxwell Preston).

Monday, December 27, 2010

Can I Mention Brand Name Products in My Fiction?

Writers frequently ask whether they can mention brand name products and services in their fiction.  The answer is "yes," provided that you take some common sense precautions.  Indeed, if it were unlawful to include brand names in fiction, countless product references in Bret Easton Ellis's novel Glamorama would have been expurgated, and David Foster Wallace could never have described in Infinite Jest an alternative present where large corporations purchase naming rights to the calendar years (e.g., "Year of the Whopper," "Year of the Trial-Size Dove Bar," "Year of the Perdue Wonderchicken," "Year of the Depend Adult Undergarment," and "Year of Glad").

The four areas of law to consider in connection with brand names are "trademark infringement," "trademark dilution," "trademark tarnishment,"and "defamation."

A classic case of "trademark infringement" is the unauthorized use of a name in a way that creates a likelihood of confusion as to the origin of the goods or services.  For example, if you were the manufacturer of aluminum foil and decided to name your foil "Glad," the Glad Products Company, manufacturers of Glad plastic wrap and Glad trash bags would likely think your use of the term is an infringement.  Even if Glad Products Company doesn't manufacture aluminum foil, aluminum foil is sufficiently close to plastic wrap to create a likelihood that some shoppers would be confused as to whether your aluminum foil is manufactured, licensed, or endorsed by the makers of Glad plastic wrap.  Keeping this principle in mind, it is evident why fiction rarely gives rise to trademark claims.  When David Foster Wallace imagines a world in which Glad Products has bought naming rights to the year that would otherwise have been called 2010 (under the old number/naming system), he isn't using "Glad" to sell his own confusingly similar goods.  He is, in fact, using "Glad" to refer to Glad Products' own goods.  Trademark lawyers call this "nominative fair use," and it does not constitute infringement.

"Trademark dilution" is a somewhat different legal theory that gives owners of famous brand names a legal right to prohibit others from using those names in a manner that would make them less "distinctive," less able to identify and distinguish the owners' goods or services.  For example, trademark owners have fits when writers of fiction or non-fiction use their brand names as generic terms for products or services.  The Xerox Corporation doesn't like writers or the public to speak of "xeroxing" documents, instead of photocopying them; Johnson & Johnson doesn't want their Band-Aid brand to become the generic term for bandages; and Google complains about the use of the term "googling" instead of using the Google brand search engine for "searching" the Internet.  Once in a while, a writer will receive a lawyer's letter from a company urging him/her not to genericize the company's brand names.  Usually, the dispute goes no farther than that.  Writers can avoid even mild reprimands of this sort by respectfully capitalizing brand names.

"Defamation" and "tarnishment" are the areas where there could, in rare instances, be greater cause for concern.  If, for example, you falsely depict a brand name product as being dangerous or defective, a manufacturer could be heard to complain.  Ultimately, the manufacturer should have to prove that some readers actually understood the disparaging depiction to be a statement of fact, not fiction, but there is seldom an artistic necessity to test that line.

Trademark "tarnishment" is a kind of hybrid between trademark dilution and defamation.  Such claims arise when a non-owner uses another's trademark in highly disparaging or offensive contexts. The best-known tarnishment case was a successful claim by the Dallas Cowboy Cheerleaders (who owned a registered trademark) against the makers of the pornographic movie, Debbie Does Dallas, in which the actresses were depicted in the cheerleaders' trademarked uniforms, to the extent that they were depicted in anything at all.  The Appeals Court's famous (at least to trademark lawyers) decision is here.  Notwithstanding the Debbie Does Dallas decision, some uses of trademarks in ways that the owner regard as highly disparaging may be successfully defended as parody, as described in this online article by Leslie Lott and Brett Hutton.

A sensible precaution:  if you are depicting brand name products or companies in an unsavory light in your novel or short story, it is often prudent to invent a fictional brand or a fictional company. If there is a compelling artistic reason to use real products and real companies in contexts that arguably disparage them, it is wise to seek advice, prior to publication, from your publisher's attorney -- or an attorney of your own -- on how best to minimize the legal risks.

The movie industry has always been exceedingly cautious about the use of brand names and the names of real people in films.  For example, the director Danny Boyle, told the press that he caused Mercedes Benz logos to be digitally removed from cars in his film Slum Dog Millionaire when the manufacturer objected to the depiction of its cars in Bombay slum settings.  (It is difficult to imagine a successful claim arising from such innocuous use, but movie studios are unwilling to run any legal risks that could conceivably lead to an injunction interfering with timely distribution of their films.)  More frequently, of course, companies pay the movie studios for product placement.  (There are even isolated isolated reports of paid product placement in novels.)  I can only speculate that the movie industry's obsession with the depiction of brands in fictional works is the source of the largely unfounded concerns about the depiction of brand names in written fiction.

Again, the use brand names in fiction is not a sleep-depriving issue.  It would be obsessive (and stylistically unpalatable) to use the R-in-a-circle symbol or the TM symbol every time you refer to a brand name in your text.  And, as long as you do not write falsely and disparagingly about real brands and the companies who manufacture them, you are unlikely ever to run into a problem.

Thursday, December 23, 2010

Can I Say My Blog Is Copyrighted?: The Basic Nuts and Bolts of Copyright Protection

A reader asks:  "Can I say my blog is copyrighted?"

The short answer is "yes."

Any "original work of authorship" is subject to copyright protection the moment that it is "fixed in any tangible medium of expression."   For example, a love letter is instantaneously subject to copyright protection  as it flows out beneath your fountain pen. Similarly, blogs readily qualify as copyrightable literary works (as long as they contain some of your own expression and not merely expression copied from others). On the other hand, a song that you spontaneously sing is not protected by statutory copyright until it is "fixed," e.g., until you write it down or record it. (Examples of the many varieties of "works of authorship" are listed in Section 102 of the Copyright Act.)

You can therefore accurately say that your blog entries are "copyrighted" as soon as you write them.  (Storage on a server or hard drive qualifies as a form of "fixation.")  It is also entirely appropriate to display a standard copyright notice on your blog (the "c" in a circle, followed by the year of creation and your name), which puts the world on notice that you claim copyright ownership in your work.

Often when people speak informally about "copyrighting" their work, they are actually talking about registering the copyright in their work.  These days you can register most types of copyrightable works online through this page on the Copyright Office website. There is a $35 fee and you will need to submit a digital copy of the work you are registering.  Registering a blog is a bit tricky because it is a work that is continuously added to and updated.  See the Copyright Office's guidelines for registering online works here.

Again, keep in mind that copyright registration is not a prerequisite for copyright protection. Even if you have not registered your work before someone infringes it, you can still potentially recover actual damages from the infringer or the infringer's profits attributable to the infringement.

There are, however, two important benefits to be gained by registering your work early on.  First, if and only if you have registered your work before the onset of an infringement, you can recover your reasonable attorneys' fees in addition to damages, if you ultimately win a judgment against an infringer.  Second, generally, if and only if you have registered your work before the onset of an infringement, you have the option of electing to pursue an award of "statutory damages" instead of actual damages or profits attributable to the infringement.

Statutory damages are a potent legal penalty that can range from as little as $200 (in a case of "innocent infringement") up to $30,000 per work infringed.  If an infringement is found to have been "willful," the damages can soar even higher -- up to $150,000 per work infringed.  Statutory damages are particularly important in a case where the work infringed does not have significant commercial value or where the value of the work is difficult to calculate. For example, suppose you have written a superb poem; odds are you could only hope to earn a few hundred dollars from, say, selling it to The New Yorker.  If you could only expect to recover your lost revenues or the infringer's profits from your poem, you would have little or no incentive to file a lawsuit to vindicate your rights.  However, armed with a registration obtained before the onset of the infringement, you do have an incentive to pursue an infringer:  you could achieve a substantial award of statutory damages, and the infringer could also end up paying your attorneys' fees.

Understandably, few, if any, writers routinely register the copyrights in all of the works they write.  First, even at $35 per application, systematic registration would quickly become prohibitively expensive if you are at all prolific.  Second, book publishers typically will register the copyrights on behalf of their authors.  Third, even if you haven't registered your copyright before the onset of an infringement, you are not without copyright protection:  remember, you can still recover your actual damages and/or the infringer's profits attributable to the infringement.

Sometimes, though, a writer may conclude that it is prudent to register a work herself when, for example, she believes the work is especially valuable or especially likely to be ripped off.  A circular providing a good basic summary of copyright law and copyright registration is available online for free from the Copyright Office.

[Update:  With respect to infringements occurring before registration, as an astute reader pointed out in a comment below, section 412(2) of the Copyright Act provides that no award of statutory damages will be made for "any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."  In other words, if you file your copyright registration application within the three-month grace period after the first publication of your work, you will have the right to recover statutory damages and attorneys' fees even if the infringement occurred earlier than your filing date.]

Sunday, December 19, 2010

CopyLeft in 19th Century Germany?: Did an Absence of Copyright Laws Give Rise to a Dramatic Expansion of the German Economy?

A3WRGPJX2HAB I am a dyed-in-the-wool believer in the efficacy of copyright as an engine to "promote the Progress of Science and useful Arts," as Article I, Section 8, of the Constitution puts it.  That doesn't diminish my fascination with the theory championed by economic historian Eckhard Höffner, who argues that the absence of copyright laws in early 19th Century Germany stimulated an explosion in the number of books and academic papers published, giving rise to unprecedented industrial expansion.  I wonder what Höffner has to say about the role of lax intellectual property enforcement in China today.

Dr. Syntax on "Fair Use"

Commenting on a post here about Robert Spoo's criticism of the devitalization of scholarship that can arise from "designing around copyrights," Peter Ginna, the guiding spirit behind Dr. Syntax (the always wise and literate blog on books and publishing) joins in urging that writers "shouldn't be too diffident about relying on the principle of fair use." See, in particular, Peter's praise for the vintage advice on fair use and copyright permissions from The Chicago Manual of Style.

The Ngram Viewer: The Accelerating Use of the Phrase "Copyright Infringement"

I just discovered the Ngram Viewer, which displays the frequency of word use in the Google Books database.  What an amazing tool for tracking social trends.  It is particularly fascinating to enter companion terms, such as "men" and "women,"liberal" and "conservative," or "Darwin," "Freud," "Einstein," and "Marx."  to see how the relative frequency of usage varies over time.  Or, as a measure of literary/cultural reputation, see how mentions of Jane Austen suddenly and decisively overtake mentions of Charles Dickens beginning in the 1960s. As to the obsessions of this blog, take a look as the striking upsurge of the occurrence of the phrase "copyright infringement" in recent decades.

I could play with this for days.

(An earlier version of this post mentioned Thoreau overtaking Emerson in the 1960s in mentions in Google Books; that was a mistake; I failed to take into account that the searches are case sensitive.)

Saturday, December 18, 2010

Could I Be Liable for Libel in Fiction?

First, by way of reassurance, you should keep in mind that libel in fiction is rare.  Considering the vast number of novels, short stories, and satirical works published every year, successful libel suits arising out of fiction are few and far between.

In theory, the circumstances that can give rise to a claim are fairly obvious:  a character in a work of fiction is interpreted by readers to be a depiction of an actual living person; the character is depicted as behaving in an unsavory manner; and the living person contends that he/she never engaged in such behavior.  Plaintiffs have ranged from clearly named public persons to obscure (and even considerably disguised) acquaintances of the authors. This interesting ongoing case involving an episode of Law and Order is fairly typical; according to The Wall Street Journal it is the first libel in fiction case to survive summary judgment in New York in nearly 25 years.

You do not libel someone simply by depicting him or her in fictional circumstances.  Libel requires a false and defamatory statement of fact "of and concerning" an identifiable living person (or business entity).  If real people are depicted in your work only as engaging in acts they actually engaged in, there is no "falsity."  If real people are depicted in your work only as engaging in acts that are not at all untoward, there is no reasonable claim for that your work is "defamatory."  (Of course, your model's view of whether he or she has been held up to shame and ridicule may differ markedly from yours.)  Finally, if readers would not understand the statements you are making about your fictional character to be statements about a real person, then the statements are not "of and concerning" that person.

Rodney Smolla, the author of one of the two leading treatises on defamation, has neatly summarized the spectrum of risk:
When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.
The courts have struggled with the question of when statements in a fictional work should be deemed "of and concerning" a real person with similar attributes.  In the most plaintiff-friendly decisions, the courts have said that a jury need only determine whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Here is one such case; note, however, the court's extensive itemization of similarities between the plaintiff and the character in order to justify its decision.  Other cases, such as Welch v. Penguin Books, have been far more protective of writers, holding that "identification alone" is not a sufficient basis for imposing liability, and that the jury must instead be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all."

How do you avoid defaming someone with your works of fiction?

1.  Don't use your published work to settle scores with others.  Reserve your vengeance for your diary or private notebooks.  If you suspect your readers will recognize your fictional villains as the real-life individuals whom you used as models, then more fiction and less faction may be in order before you publish.

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.
Sidebar:  The 1979 California case of Bindrim v. Mitchell illustrates the challenges of disguising a character while retaining the essential elements of the story you want to tell.  Gwen Davis Mitchell, the author of the novel Touching, had attended a series of real-life therapy sessions conducted by Dr. Paul Bindrim.  As a condition of participating, she had signed an agreement in which she agreed not to write about the sessions.  When Mitchell later wrote her novel, she included a character, Simon Herford, who conducted marathon nude therapy sessions and occasionally used less-than-chivalrous four-letter words.  Actually pretty mild stuff by 2011 standards.  The fictional Herford not only had a different name from Dr. Bindrim, but Mitchell also gave him a different physical appearance and a different professional background.  Nevertheless, the court found that Herford was recognizable as Bindrim to at least some of his colleagues, and therefore, to the extent that readers understood the novel to be making statements about Bindrim that he could prove to be false and defamatory, Bindrim could recover from Mitchell for libel. Here is an amused and amusing People magazine account of the dispute.  Ultimately, Dr. Bindrim obtained a substantial judgment against the novelist and publisher, which was upheld on appeal.  (Full disclosure: my firm was involved on behalf of the defendants at the appeal stage.)  The existence of the contract was an unusual twist and certainly complicated the defense, but the case stands as a warning about the considerable care that must be taken to distance fictional characters, who are depicted as misbehaving, from real individuals who may have inspired those characters.
3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

4. Disclaimers can't hurt.  You will frequently see in the front matter of novels a statement such as:  "This is a work of fiction.  Names, characters, places, and incidents are the products of the author's imagination or are used fictitiously.  Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental."  A disclaimer won't really protect you if there is evidence that the similarities are not "entirely coincidental."  Nevertheless, a disclaimer gives a lawyer defending you something specific to point to in order to underscore to the court that "this work is presented to the world as 'fiction' not as a factual account."  And, remember, under the law, a reasonable reader would have to understand a statement about a person as a "false and defamatory" statement of fact for it to be libelous.

5.  Keep in mind that (with rare exceptions I won't venture into here) you can't libel the dead.  Basing a character on the dearly or undearly departed is unlikely to give rise to a problem.  (But keep in mind how your dead character interacts with other characters, who may have counterparts among still-living real individuals.  For example, consider a plot line where a character -- based on a real though dead person -- is depicted as a murderer, and his fictional brother is depicted as failing to disclose the crime to the authorities; a real-life brother of the real-life, identifiable model for the killer character might be heard to complain.)

6.  In some instances, the fact that the fiction is so far-fetched has worked to the author's benefit, giving rise to  a successful argument that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even though a reader might conceivably associate the character with a living person.  See the kinky case of Pring v. Penthouse.

7.  Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts.

8.  If you have doubts or concerns about the way you have modeled a character after a living person, raise them with your editor or the publisher's in-house attorney before the work goes to press.  With a little rewriting, libel in fiction issues are almost always resolvable without significant detriment to a story line. You can still write a biting roman a clef even in these litigious times.

On my bookshelf of books on law for writers, The Writer's Legal Guide and The Rights of Authors, Artists, and Other Creative People have the best discussions of libel in fiction.  Online, Julie Hilden has a good post focusing on a disturbing Texas case.  And here are posts from two other practicing attorneys with useful background on the issue, one by David Hudson and an older one by Alan Kaufman.

Again, don't over-sweat this.  Libel in fiction is an infrequent problem and one that can be readily avoided with some advance thought about how you are using real-life models for your fictional characters.  Far more challenging and more common is the problem of reducing the risks of a defamation action arising from a tell-all memoir -- a subject that I will return to in a later post.

Friday, December 10, 2010

What Are the Best Books on Writers and the Law?

Impulsively, I recently bought seven books about writers and the law -- all aimed at writers, not lawyers:

Author Law A-Z, by Sallie Randolph and others;
The Writer's Guide to Copyright, Contract, and Law, by Helen Shay;
The Copyright Permission and Libel Handbookby Lloyd Jassin and Steven Schechter;
The Writer's Legal Guide, by Tad Crawford and Kay Murray;
Negotiating a Book Contract, by Mark Levine;
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans; and
The Writer's Legal Companion, by Brad Bunnin and Peter Beren.

Every writer could benefit from reading at least one book on writing and the law.  (In fact, they ought to make a short course on law for writers a prerequisite for graduating from an MFA program; it would give students a real-world grounding in many practical issues they will be facing as professional writers.)  But no writer really needs more than one or two books on the subject.  I don't yet know which of these seven books qualifies as "best" (from my point of view); but I already know that each has its strengths.  In future posts, I will offer some thoughts on each.

I have long owned a copy of of an eighth book, Kenneth Norwick's highly accessible The Rights of Authors and Artists, published by the American Civil Liberties Union.  I have previously praised Norwick's book and will use it as a baseline for comparison to the other seven.  Virtually the only shortcoming of Norwick's book is that the most recent printing is now 18 years old; the ACLU should commission him to update it.

Wednesday, December 8, 2010

Sounding the Trumpet for Fair Use Quotation and Deploring "Design Around Scholarship"

As touched on in a previous previous post, I have recently become familiar with the work of Robert Spoo, who has had a multi-faceted career as a practicing litigator, law school professor, and English literature professor.  He was for a good while the editor of the James Joyce Quarterly and was one of the attorneys who represented Carol Shloss in her long copyright battle with the James Joyce Estate. Spoo has criticized what he calls the “Era of Forbidden Quotation,” in which scholarly works are legally sanitized to avoid conflicts with copyright owners:
By trimming quotations to the bone or forgoing them altogether, by deleting all unpublished material or paraphrasing it nearly out of existence, by using public-domain editions in place of better, copyrighted ones, academic authors are practicing the art of designing around copyrights. . . . . Design-around scholarship often amounts to a kind of perverse self-denial—perverse because not warranted by the porous nature of copyrights.
Robert Spoo, "Copyrights and ‘Design-Around’ Scholarship," James Joyce Quarterly 44 (2007): 566-67, 578 (available through a MUSE institutional subscription).  As Spoo argues, design-arounds come at a price—often in the form of “timid, bloodless paraphrase.”  He also urges, correctly, that the law does not by any means require the purging of all quotation when permission from a copyright owner cannot be obtained or is expressly refused.

That said, there are times when it is only prudent to cut back, as artfully as possible, on the amount of quotation in order to bring a scholarly (or popular) work safely within the bounds of fair use.  I will return to the timing and strategy of “quotation trimming” in a later post.

Tuesday, December 7, 2010

Matterhorn: Winner of The Center for Fiction First Novel Award

Earlier this evening, I attended The Center for Fiction's festive awards dinner. Matterhorn by Karl Marlantes won the Flaherty-Dunnan Best First Novel prize. It was an especially strong field of short-listed finalists this year.  No fewer than three appeared in this week's New York Times 100 notable books of 2010 list: Invisible Bridge by Julie Orringer, Mr. Peanut by Adam Ross, and Matterhorn.

Sunday, December 5, 2010

Why Are There So Many Intellectual Property Lawsuits Involving Major Books, Movies and Plays: The “Fela” Lawsuit

As has been widely reported in the press, Carlos  Moore, the authorized biographer of Fela Anikulapo Kuti, the late Afrobeat star, has sued the producers and creators of the popular Broadway musical Fela for copyright infringement and other causes of action.  

By way of background, Kuti (the subject of the musical and the biography) was, in the words of this capsule description in The Guardian “an African revolutionary, musical visionary and polygamist who married 27 women on the same day in 1978.”  Surely a promising subject for a musical.

Moore contends that the producers offered him $4,000 for the rights to use his biography of Kuti, Fela: This Bitch of a Life, as source material for the musical.  Moore says that, after he turned down the offer, the defendants went on to use his biography to develop the musical without Moore's knowledge, authorization, or consent. “Entire portions were simply copied from Moore’s book and inserted into the script of the musical,” the lawsuit contends.  The New York Times has posted the complaint, which was filed on November 8, 2010, in federal court in New York. The defendants have denied any wrongdoing.

I'll leave it to others to offer their unsolicited views on the merits of this particular claim. What interests me here is why so many intellectual property claims are filed against popular novels, films, and theatrical works.

First, there is the difficulty in distinguishing non-copyrightable facts from the copyrightable expression of those facts.  It is axiomatic and true that you cannot copyright facts and ideas.  However, your own original expression of those ideas may be protectible by copyright.  In other words, as a matter of copyright law, anyone is free to use the facts in Kuti's life as the basis for a biography or a musical.  (We will leave aside the separate question of whether the "right of publicity" could sometimes prohibit the use of a living or deceased individual's life story in a theatrical work or film.)  However, one is not free to copy the original way that some prior writer phrased those facts and ideas or selected, coordinated, and arranged those facts and ideas in his or her account.  As one commentator has explained, trying to distinguish facts from the expression of those facts is like, in Yeats's phrase, trying "to tell the dancer from the dance."  Disagreements between plaintiffs and defendants over this fundamental issue in copyright law, known to lawyers as the "idea-expression dichotomy," form the basis of many, if not most lawsuits like those involving Fela or Dan Brown's DaVinci Code.

Second, there is the difficulty of determining when an oral contract has been formed.  In the Fela case, Moore contends that the production team consulted him in connection with the development of the show and that he had a reasonable understanding that, if his contributions were used, he would be compensated.  If the case goes forward, the defendants will presumably argue that no binding understanding was reached and/or that they did not use Moore's alleged contributions.  The many claims arising from alleged oral contracts illustrate the importance of getting good legal advice when negotiating licensing or consulting deals in order to protect the parties not only if the deal goes through, but also if the negotiations fall apart.  Of course, sometimes there will be lawsuits no matter how good the legal representation has been.

A third common problem, which does not appear to have been a factor in the Fela case, is (a) whether and how authors can protect their unsolicited concepts when they submit them for consideration by a production company, and, the flip side, (b) how a production company can protect itself against false claims that it copied and used (often very generic) concepts that it did not solicit (and, in many instances, even look at).

I will return to each of these problems in later posts.

Tuesday, November 30, 2010

Can I Be Sued for Publishing the Truth?

Here is another post updated from a question and answer that originally appeared in my column in Debbie Ridpath Ohi's popular online newsletter of yore -- Inklings.

Q.  I am working on a nonfiction project of a very sensitive nature, and have a lot of factual material, including documents, original letters, and more.  I want to know what my rights are as far as making these things public.  These letters were written to me, and I don't know how much detail I should go into as this moment . . . . [I do not know] if I can use true names and photocopies of these letters and documents, or if I need to change names, and rewrite letters I have received to protect myself from suit.

A.  Your question raises implicates at least three separate areas of the law: defamation, privacy, and copyright.

Defamation claims arise out of false statements concerning individuals or businesses that tend to harm their reputations.  Simplistically stated, you cannot be liable for defamation if what you publish is true.  Indeed, under U.S. law, even if you inadvertently publish false information, you may escape liability if, in researching and writing your work, you have exercised the degree of care consistent with the principles of responsible journalists and authors.  The degree of fault necessary to impose liability for defamation may depend on whether the subject of an erroneous statement is a public figure or a private figure.

By contrast, under the law of privacy (particularly that branch known as "public disclosure of private facts), you can be liable in some states for publishing true statements, if they would be highly embarrassing to a reasonable person and if the statements do not related to a matter of legitimate public concern.  For example, intimate revelations about a person's sex life or embarrassing medical condition may raise invasion of privacy concerns, even if they are true.  The law as it applies to public disclosure of private facts can be quite complex.  If you are telling "your own story," and the private facts you wish to disclose are essential to that story, it may, in some instances, provide you with a defense.  But you will surely need an attorney to help you navigate those waters.  I will return to this subject in a later post.

Additionally, your question raises copyright issues.  Even though the letters were addressed to you, the copyright ownership likely remained with the letter writer.  Unless ownership was formally transferred to you or unless you received permission from the letter writer to quote from the letters, you may only quote from them to the extent permitted by "fair use."  That said, copyright right protects expression, not ideas, you may be able convey much of the information in the letters in your own words, without infringing the letter writers' rights.

When a work raises issues of defamation or invasion of privacy, a publisher may ask the writer to document and explain in detail his or her basis for making particular statements.  You may, for example, be asked to disclose to the publisher's attorney the documents and letter on which you have relied.  You will also likely be asked to warrant in your publishing agreement that your work does not violate anyone's legal rights (e.g., that your writing will not give rise to defamation, privacy, or copyright claims).

Sometimes, as you suggest, name changes and rewriting your source materials, are prudent; the best approach must be arrived at on a case-by-case basis.  Although it came out quite a few years ago, Kenneth Norwick's The Rights of Authors and Artists, published by the American Civil Liberties Union, continues to provide a good, clear, general introduction to the principles of libel and privacy law.  However, if you are about to embark on a controversial project that you fully expect will be published, whether in print or online, you may wish to consult an experienced media lawyer at the outset to discuss the libel, privacy, and copyright issues you will be facing.  If you already have a publisher, the publisher's attorney may be able to give you the early, practical advice you need.

Sunday, November 28, 2010

"Modernism and Copyright" edited by Paul K. Saint-Amour

Modernism and Copyright, an outstanding collection of essays published by Oxford University Press, is shipping now and should soon be available from online booksellers and selected brick and mortar stores.  The table of contents is reproduced here.  The editor, Paul K. Saint-Amour, is an Associate Professor of English at the University of Pennsylvania and the author of a well-regarded previous volume on copyright and literature, The Copywrights: Intellectual Property and the Literary Imagination.

Many of the essays in Copyright and Modernism  touch on the adverse effect that prolonging the term of copyright has had on literary scholarship, particularly scholarship exploring the works of modernist authors, many of which would have passed into the public domain (or would soon be doing so) but for the enactment in 1998 of the Sonny Bono Copyright Term Extension Act.

I particularly recommend an essay by Robert Spoo, "Ezra Pound, Legislator: Perpetual Copyright and Unfair Competition with the Dead."  Spoo is an interesting hybrid -- a professor of law, a practicing attorney, and a former English literature professor, who was, at one time, the editor of the James Joyce Quarterly.  Notably, Spoo was also one of the lawyers who represented Carol Loeb Shloss in her copyright battle with the James Joyce Estate over her biography of Joyce's daughter, Lucia. Shloss's account of her fascinating lawsuit, "Privacy and the Misuse of Copyright," also appears in the volume.

Full disclosure:  I contributed an essay on, among other things, the J.D. Salinger, L. Ron Hubbard, and Richard Wright copyright cases, which involved questions of the "fair use" of unpublished letters in biographies.

Can I Say That My Story Was Not Previously Published?

For several years, the Toronto-based writer and illustrator Debbie Ridpath Ohi published a wonderful and enormously popular online newsletter for writers called Inklings, to which I contributed a periodic column entitled "Ask the Lawyer." At its peak, Inklings had 50,000 subscribers.  Here, in slightly updated form, are a question and answer from a vintage Inklings column (to which I granted Debbie "first publication rights").

Q. I posted my stories on my website at the same time as submitting them to various publications.  One of them wants to buy my story, but wishes to have "first publication rights."  By putting my stories on the web, have I published them?

A. Yes and no.  In seeking first publication rights, an editor has two concerns.  First, for commercial reasons, the editor presumably wants to be the first to distribute your story to the periodical market.  Second, for legal reasons, the editor wants to be certain that no prior publication owns any conflicting rights in your story.  Your publication of your own story on your own website does not raise legal concerns about conflicting ownership rights.  However, it may be a closer question as to whether your posting of your story on your website could materially diminish the commercial value of the story to your publisher.

By way of background, as a matter of U.S. copyright law (which is not necessarily dispositive on the meaning of "publication" in a private contract with the periodical), it is not clear whether the display of the story on your website constitutes a publication.  Here is the definition of "publication" in Section 101 of the Copyright Act:
the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Thus, while the mere "display" of your story on the website may not constitute publication in the copyright sense of the word, the explicit or implicit authorization of your website visitors to download it, print it out, or redistribute it (e.g., through social media) could be.

Accordingly, to be entirely upfront (and to preserve your editor's goodwill), you may wish to disclose to him/her that you have previously posted the story on your website and that you, of course, assume that is not a problem.

An afterthought and amplification:  Should an editor of an ink-on-paper periodical care if your story appeared on your own lightly trafficked personal website?  Probably not, particularly if you take down the story when you learn that you have placed it with the periodical.  On the other hand, you can readily understand why the editor of a printed  periodical (or, perhaps especially, the editor of an online periodical) might care about the previous online posting of an article in a highly trafficked website, where it has already have been accessed by many readers and remains available online for free in competition with the periodical's (hopefully paid) publication of your work.

Wednesday, November 24, 2010

Libel Insurance for Writers

From time to time, authors ask whether they can and should buy insurance to protect themselves against claims for defamation, invasion of privacy, or copyright infringement arising out of the publication of their manuscripts.

At the outset, you should be aware that the vast majority of authors never purchase such insurance, and rightly so.  First, most manuscripts simply do not present any meaningful legal risks.  Second, many book and magazine publishers themselves carry "media perils" insurance.  In most instances, the publishers would be joined as defendants in any lawsuit and would wage a vigorous defense, which could, in some instances, include a defense for the author.  Indeed, some publishers have provisions in their insurance policies that allow them to name authors as "additional insureds."  (Don't assume this is the case; if insurance is an important consideration with regard to a particular manuscript, you or your agent should ask what coverage, if any, the publisher provides for its authors.)

Nevertheless, for a variety of reasons, risk-averse authors sometimes wish to consider purchasing insurance coverage of their own.  These days, the concern most often arises in the context of blogs or other online publishing where neither the author nor the web publisher has any applicable insurance.  Also, in the context of academic literary publishing, small journals may not have insurance coverage for themselves or their authors.  Moreover, even if a book publisher, for example, has insurance coverage, there could be exposure to the author for the publisher's deductible undeer its insurance policy (since publishing agreements almost always contain warranties whereby the authors promise that their manuscripts will not violate the rights of others).

Some writers organizations now offer insurance programs for their members.  See, for example, this program offered by the Authors Guild.  Crucially, the Authors Guild policy covers defense costs (which are frequently a greater concern than the risk of any ultimate liability to the plaintiff) and has a reasonable deductible of $2,500 to $5,000, depending on the policy.  The Media Bloggers Association has announced a similar program specifically for its member bloggers.

Other groups that offer the opportunity to buy media perils insurance as a benefit of membership include the National Federation of Press Women and the Independent Book Publishers Association.  (There may be additional requirements, such as experience in the profession and an absence of prior involvements with litigation, to receive discounted rates.)

Insurance companies such as Axis-Pro (formerly known as Media/Professional), the company that currently underwrites the Authors Guild policies, and First Media, among others, will also issue policies for individual writing projects. The premiums vary significantly by project.  Often in order to obtain insurance on a book project, an insurer will insist that the manuscript be read by a lawyer, which can add several thousand dollars to the cost.  If an author is seeking insurance to supplement the coverage of his or her book publisher, it may be possible, in some instances, to piggyback on a legal read performed by the publisher's lawyer.

University professors may be able to obtain insurance through the American Association of University Professors that covers a variety of professional hazards, including claims arising from articles published in academic journals; however, there may be limitations on the types of publications covered.

You should not rely on your homeowner's policy -- or even on your umbrella policy -- to provide protection from the kinds of claims that writers incur, unless your insurance professional has assured you that your policy specifically covers the relevant risks.  See, for example, this discussion of claims against bloggers in the Wall Street Journal.

Of course, your first line of protection against lawsuits is to make sure you have your facts straight (truth is the ultimate defense in libel actions) and to respect the intellectual property of others (e.g., observe the principles of "fair use").

Again, the vast majority of writers will never need media perils insurance.  However, if you are writing about highly contentious subjects, you may wish to explore the available options and determine whether the benefits of this specialized form of insurance are worth the not inconsiderable costs.

Tuesday, November 23, 2010

Writes for Readers: Best First Novels

The Center for Fiction in New York City will announce the winner of the 2010 Flaherty-Dunnam First Novel Prize on December 6.  Many past winners (and short listed nominees) have gone on to achieve other top honors, including Juno Diaz's The Brief Wondrous Life of Oscar Wao (Pulitzer) and Marisha Pessi's Special Topics in Calamity Physics (New York Times 10 Best Books List).  Last year's winner was The Woodsburner by John Pipken, a wonderful historical novel about Henry David Thoreau.  The little-known Tinkers, by Paul Harding, was on last year's short list and went on to win the Pulitzer.  

This year's short list consists of:

• Beneath the Lion’s Gaze by Maaza Mengiste (W.W. Norton)
• The Invisible Bridge by Julie Orringer (Alfred A. Knopf)
• Matterhorn by Karl Marlantes (Atlantic Monthly Press with El León Literary Arts)
• Mr. Peanut by Adam Ross (Alfred A. Knopf)
• The Quickening by Michelle Hoover (Other Press)
• The Report by Jessica Francis Kane (Graywolf Press)
• This is Just Exactly Like You by Drew Perry (Viking)

Full disclosure: I am a member of the Board of the Center.

Saturday, November 20, 2010

Is It Still in Copyright?

One of the most frequent questions asked by writers (and bloggers) is whether a particular work they wish to quote at length (potentially beyond the bounds of fair use) -- or even republish in its entirety -- is still protected by copyright.  It can be a more complicated question than one might expect.

One short answer is that, if a work was first published in 1922 or before, the copyright in the United States has expired, and the work is in the public domain in the United States.  However, you must be careful to quote from the work as it existed in 1922 or before.  Later editions of the work could contain new or different copyrightable expression first published after 1922, and that expression could still be copyright protected.  (There is also a bit of disagreement among courts as to when the copyright term begins if the work was first published outside of the United States without a United-States-style copyright notice, but we will skip over that subtlety here.)

Matters are further complicated by the fact that copyright is territorial.  The duration of copyright in other countries is computed differently, a subject I will return to in later posts. As a result, even though the copyright in a work has expired in the United States, it could still be copyright-protected in other nations.

Further complications arise from the fact that many post-1922 works that once enjoyed copyright in the United States have lost their copyright protection over the years by reason of the failure to register and renew the copyrights or to comply with other statutory formalities, particularly the formalities of the old 1909 Copyright Act.  Additionally, works created prior to January 1, 1978, that were unpublished as of that date, have their own complicated set of rules concerning copyright duration.

The best short summary of the duration of U.S. copyright is to be found here on the Cornell website.  It is based in part on Laura Gassaway's simpler chart found here.

Ur-Text: Writers, Understand What You're Signing Before You Sign It

One of the reasons I became a lawyer was self defense.

As a 24 year-old aspiring writer, transplanted from Akron, Ohio, to New York City, having recently dropped out of an MFA program, I signed a contract with a literary agent to co-author (with a friend of mine) a book of purported humor.  A first book for both of us, it was unexpectedly successful.  Only when a sizable advance came in from the paperback publisher did I pay any attention to a key clause in my contract with the agent.  The contract provided that my co-author and I would receive the revenues from the book, less the agent's commission, and less a "pro rata share of [the agent's] cost of operations."  When I signed the contract, I was clueless about what that clause meant. If I read the same clause today, I still would not know what it meant, but I would surely realize that its ambiguity spelled potential litigation.

When the check from the paperback publisher arrived, the agent first deducted what he regarded as the "pro rata share of [his] cost of operations," then he applied his commission against the remainder, and, finally, he split the remainder two ways between me and my co-author.  He calculated his "pro-rata share" as follows: