Wednesday, October 11, 2006

Staying on the Right Side of the Law

No, I'm not telling you to avoid a career in bank heists, though that would probably be wise. What I am here to talk about are laws that pertain to your work as a writer, such as copyrights, libel, and other fun things. Someone asked a legal question last week on Pamela Harty's Q&A Thursday, and while we tried to answer it to the best of our ability, the simple truth is that agents are not necessarily lawyers (some are--we're not), and we can only comfortably speak to the legal issues we have experience with to date. We know about contracts, and copyrights that get sold or held back during the contract process; we know that if you quote something that's not in the public domain, you're going to need to go get permission to use it and pay for that priviledge; and best of all, we know there are other people out there with better answers to your questions than we might have, when it comes to what you can and cannot say in a novel.

This past weekend, I was fortunate to attend a workshop on legal issues while I was attending the Emerald City Writers' Workshop in Seattle. Author and attorney Teresa Bodwell shared a bit of her legal expertise with the writers (and me), and also was kind enough to provide a list of resources for writers struggling to find answers to their legal questions.

First, a quick rundown of the advice:

Teresa spoke mostly to copyright law, and while this is something your agent can explain to you, and in most cases also worry about on your behalf, not everyone is agented yet, so I'll give a brief overview.

1. You cannot copyright an idea or a title. You can copyright the more precise details that turn that idea into a distinctive story. For instance: "Boy meets girl" cannot be copyrighted; However "Rhett meets Scarlett at a barbecue when he overhears her throwing herself at Ashley, the man of the house. Rhett continues to torment and flirt with Scarlett, even as she continues to pursue Ashley and marry yet other men, all against the backdrop of the Civil War, and from the South's POV," can be copyrighted (or could be, if Margaret Mitchell hadn't already done so). You can copyright a detailed outline or synopsis--it does not have to be a completed work.

2. Your work is copyrighted once you've created it. Even if you have not filed it with the copyright office. Of course, if you need to sue someone for stealing your work, it helps to prove it if you have registered it. But technically, it's not necessary.

3. If you write under a pseudonym and have not incorporated, you have two copyright options: register the work under the pseudonym and also register it as being linked to your real name, or simply registering it under the pseudonym. The first option will provide you with a longer copyright period, one equal to writing in your own name; under the second option the period is shorter, and you would also need to prove that you are that person in the event you need to sue for copyright infringement.

Regarding privacy laws, libel, and defamation of character:

If a character is based on a real, living person, you are safest if you change the name and enough events/personality traits that it is not obvious. However, if you're only using the character in a factual basis, such as stating Bill Clinton was the President of the United States at the time of your story, then it's not a problem. When the person in question is deceased, you have a little more freedom to use details of their life in your fiction, but you still should probably change the name if you're having them act in a notorious manner, particularly if it is untrue.

These are all very brief explanations, not to mention simplified. For more precise information and answers to specific questions, check out the following sources:

The Author's Guild of America
Pub Law
Federal Law at the Library of Congress
Jameson Law Library Legal Gateway
Find Law

Also, please check out Teresa Bodwell's Web site for her own legal tips, a list of workshops she offers, and, of course, for information on her novels.



Blogger Lisa Pulliam said...

Thanks for the rundown, Nephele. I missed that workshop, but it looked interesting. I was very impressed by the workshops I attended at the conference.

Wednesday, October 11, 2006 at 4:37:00 PM EDT  
Blogger Karmela said...

Nephele -- I once attended a copyright workshop given by Elaine English, agent and attorney, where she emphasized that yes, even though your work is copyrighted the instant you create it, it has to be in some kind of recordable form, such as a website, an electronic document, longhand on a piece of paper, a tape recorder/videocamera, or something where you can show someone else that you've created it.

Thursday, October 12, 2006 at 10:53:00 AM EDT  
Blogger Motherhood for the Weak said...

This is really good info! Thanks for sharing!


Thursday, October 12, 2006 at 11:09:00 AM EDT  
Blogger Nephele Tempest said...


You're absolutely correct that your creation must be down on paper or disk or a napkin... whatever, as long as it's a concrete format. But honestly, I wonder how anyone would expect to have copyright on something that's only in their own brain? After all, how would you prove that? Ultimately, you're safest if you have filed your material with the copyright office, whether you do it yourself or your publisher does it on your behalf.

An old trick is to seal your manuscript in an envelope and mail it to yourself, then stash it somewhere unopened--the theory being that the postmark dates the work. But personally, I'm not sure that's the most reasonable way to go; after all, the second someone opens the envelope, it invalidates the entire thing, so you'd better hope the person opening it is the judge in your copyright infringement suit. Otherwise, not much point in the exercise.

Thursday, October 12, 2006 at 7:17:00 PM EDT  
Blogger Jacki Bentley said...

Thanks for this topic. Very timely. :-) I'm looking into doing an LLC for my penname.

Thursday, October 12, 2006 at 7:55:00 PM EDT  
Blogger Fourteen Year Old Writer said...

Thanks for the info! Is it reccomended to get a copyright of your novel before sending it out to agents? I thought I read this seemed amateur or was unneccescary. Also, can you reference national chains in stories, such as McDonalds?

Monday, October 16, 2006 at 3:41:00 PM EDT  
Blogger Nephele Tempest said...

There's really no need to copyright your manuscript to send it to agents, particularly if you're researching said agents and making sure to deal with ones who are reputable.

As for using copyrighted chain names or product names, in most cases you'd try to use generic names (tissues instead of Kleenex, soda instead of Coke, jeans instead of Levi's, etc.), but in the case of something like McDonald's, it would be okay to reference them directly. Technically, you should include the registered trademark symbol (that little R in a circle) after the name to indicate you don't own it, but that the restaurant (or whatever) does.

Monday, October 16, 2006 at 7:51:00 PM EDT  
Blogger Jonathan Siberry said...

Thanks for the information, just what i needed.

I like the comment about sending your manuscript to yourself

great idea

Jonathan (investment property north east | building services london)

Tuesday, October 24, 2006 at 4:40:00 AM EDT  

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