Skip to content

Category: Legal

I left the legal profession back in 1990. And, as a result, I am a far happier person. It just plain was not for me.

Oh, Really? Just How Did I Come to This Conclusion?

I had more than a few reasons to believe that this was not going to be my forever career. For one thing, I slacked off in law school. A lot.

And I slacked off in my first legal job, too. It was just as well, because I disliked it so much. At least in my second such job, the people were considerably better.

The Legal Dilemma

Er, why did I even bother with law school? Well, it’s like this.

When I graduated college, there were not exactly scads of jobs for philosophy majors. If you do not wish to get your PhD and teach, you are kind of stuck.

Unless you go to law school.

Another reason/advantage is that there was money to be made there. Because, let’s face it, the philosophy racket is not exactly a lucrative field.

And Now, Do I Miss It? At All?

No, dear reader, not even a little bit. And not even once.

How to Create a Writer Website: Writer Website CopyrightWeb design, Start a Writer Website, Writer SEO, Writer Website Design, Writer Website Copyright, Writer Website User Experience Design, Mobile Design, What to Write About, Website Planning, Technology to Help You With Writing, Website Plans, Website Speed

How to Create a Writer Website: Writer Website Copyright

Published by Janet Gershen-Siegel on June 1, 2023

Even if you aren’t a litigious sort of person, you will still do well to concern yourself with writer website copyright. Just because you, personally, don’t go searching for plagiarism and copyright violations, doesn’t mean that they won’t find you.

Writer Website Copyright: The Basics

If any of this looks familiar, it’s because I have other posts on copyright. And, let’s face it. It really hasn’t changed that much. But it does bear repeating all the same.

Writer Website Copyright - definition courtesy of Investopedia
Copyright definition courtesy of Investopedia

The Elements of Copyright

According to the US Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

  • reproduce the work in copies or phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
  • perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? You betcha! We call that a license.

When do Copyrights Expire?

Not surprisingly, the US Copyright Office has something to say about that.

In general, for works created on or after January 1, 1978, the term of copyright is the life of the
author plus seventy years after the author’s death. If the work is a joint work with multiple authors,
the term lasts for seventy years after the last surviving author’s death.

I won’t go into works created before January 1, 1978 (you can check out the pamphlet for that). Since it’s a good 45 years ago, many currently living authors don’t have anything that old.

Er, What?

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists.

The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! And you’ll need it to defend a lawsuit. But mailing it to yourself is silly. Seriously.

Infringement and Writer Website Copyright

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

But to defend a case, in the US, you must register your work. In fact, the registration is a prerequisite to actually taking someone to court for infringement. Thank you, copyright attorney extraordinaire, Michael Stewart!!

Infringement

Here, however, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion. But don’t expect me to do the huge amount of research a hired lawyer would. Nope. I am not doing that much free work for you, sorry, not sorry.

Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

Yes, you will need to actually pay that person.

Details

The American Bar Association explains it better. It publishes a Young Lawyers series to help newly minted lawyers understand the nuances of complex sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners. To establish infringement, the plaintiff must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of: “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.” A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4). If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office is necessary to successfully bring an infringement claim. If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

Are There Any Writer Website Copyright Exceptions? Or Any Copyright Exceptions?

I am so glad you asked.

Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.

Fair Use

For the fair use defense, Purdue outlines four basic factors:

Purpose and Character

Some specific use cases favor fair use. These include nonprofit, educational, and personal uses. Plus there are those which represent a potential tipping point.

These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses.

Hence, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit business should seek the copyright holder’s permission.

Nature of Work

To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission for an unpublished novel about vampires.

Amount

Small and insignificant bits of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission.

Hence, if I copy the character of Millicent Bulstrode, then the character is minor and small. But this does not necessarily mean JK Rowling won’t sue me. Still, copying Hermione Granger is another matter entirely.

Market Effect

You’re more likely to be in the fair use realm if:

  • Licensing/permissions are unavailable or there is no major impact,
  • There is limited/restricted access to the work, or
  • The user or institution owns a legal copy.

But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission.

Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.

Face to Face Instruction

According to Purdue,

The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.

Requirements:

  1. All materials must be legally acquired.
  2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

Exceptions: Virtual Instruction

Like face-to-face instruction allowance, virtual instruction generally gets a pass, per Purdue University. However, there are some specifics. For example, the class must be a regular offering in the curriculum.

What About Parody?

The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. But satire is often more like commentary than outright mimicry.

For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more likely to license satire rather than parody. This is because parody is pretty much a knockoff by definition.

Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use. But amusement and exaggeration blurs that line.

The best advice I can give you is: don’t make your work into a copyright test case.

In other words: be original!

Writer Website Copyright: Takeaways

Beyond protecting your own work and trying not to get into your own copyright hot water, there is the matter of someone out and out pirating your stuff. This happens with annoying regularity. DMCA takedown notices can be semi-effective, but determined thieves likely will not care about your rights.

A few ways to protect yourself include using PDFs for review copies or beta reader copies, and not Word docs or Google docs. With those, copying is still possible, although you need software to do it.

If you are published through a publisher (traditional or hybrid), talk to their legal department about what they do, and how you can potentially help them. But if it’s just you, you may want to resign yourself to the fact that it can turn into just so much Whack-a-Mole.

Give pirates and infringers no quarter. But at the same time, don’t let them run your life so much that you have no time to write.

Want More of Writer Website Development?

If my post on website speed resonates with you, then be sure to check out my other articles about how to create a writer website.

Writer Website Development

Next article

Protect your writing and your writer website by paying attention to copyright. #amwriting

Leave a Comment
A Crash Course in Copyright Law, Part 3 (Exceptions)Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 3 (Exceptions)

Published by Janet Gershen-Siegel on December 15, 2022

And Finally: A Crash Course in Copyright Law, Part 3 (Exceptions)

What are some exceptions to copyright infringement cases?

So, when is it all right?

Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.

Note: the law changes in every area. This blog is no substitute for talking directly with an experienced copyright attorney!

Fair Use

For the fair use defense, Purdue outlines four basic factors:

Purpose and character

Some specifics favor fair use. These include nonprofit, educational, and personal usages. Plus there are those which represent a potential tipping point.

These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses.

Hence, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit business should seek the copyright holder’s permission.

Nature of work

To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission for an unpublished novel about vampires.

Amount

Small and insignificant bits of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission.

Hence, if I copy the character of Millicent Bulstrode, then the character is minor and small. But this does not necessarily mean JK Rowling won’t sue me. Still, copying Hermione Granger is another matter entirely.

Market Effect

You’re more likely to be in the fair use realm if:

  • Licensing/permissions are unavailable or there is no major impact,
  • There is limited/restricted access to the work, or
  • The user or institution owns a legal copy.

But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission.

Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.

Exceptions for Face to Face Instruction

According to Purdue,

The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.

Requirements:

  1. All materials must be legally acquired.
  2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

Exceptions: Virtual Instruction

Like face-to-face instruction allowance, virtual instruction generally gets a pass, per Purdue University. However, there are some specifics. For example, the class must be a regular offering in the curriculum.

What about Parody Exceptions?

The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. But satire is often more like commentary than outright mimicry.

For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more inclined to license satire rather than parody. This is because parody is pretty much a knockoff by definition.

Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use. But amusement and exaggeration blurs that line.

The best advice I can give you is: don’t make your work into a copyright test case.

In other words: be original!

And be sure to check out Part 1 and Part 2!

Leave a Comment
A Crash Course in Copyright Law, Part 2Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 2

Published by Janet Gershen-Siegel on December 13, 2022

Check Out A Crash Course in Copyright Law, Part 2

Want to learn more about copyright law?

How about infringement?

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

But to defend a case, in the US, you’ll need to register your work.

Infringement

However, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion.

Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

The United States Code

According to Title 17 of the United States Code:

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

But what the heck does that all mean?

The American Bar Association explains it better. It publishes a Young Lawyers series intended to help newly minted lawyers understand the nuances of complicated sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

Next up? Exceptions!

Leave a Comment
A Crash Course in Copyright Law, Part 1Legal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

A Crash Course in Copyright Law, Part 1

Published by Janet Gershen-Siegel on December 8, 2022

A Crash Course in Copyright

It’s time for a crash course in copyright law. Don’t worry; no one is going to make you practice law.

Seriously, you’re good.

Me, on the other hand? I’m a retired lawyer, admitted to the New York state bar, 1986. I never worked in the copyright field. However, I have read plenty about it, and of course I have my own legal training and experiences to fall back on.

If you have questions, I will try to answer them. Or contact a copyright attorney if you know one, and ask! Your questions won’t offend me.

Disclaimer

Do not infer or imply representation. If you’ve got a copyright issue, and you’re defending, or you think you should bring a lawsuit, I urge you to get legal representation as soon as possible.

American Copyright Law

For the purposes of these blog posts, I will only look at American law. The law differs outside the United States, it will be different. Copyright law is Federal, so jurisdiction rests with the Federal courts. It is a civil matter; no one goes to jail for copyright infringement.

Copyright Search

The United States Copyright Office exists as a part of the Library of Congress, founded in 1870. Want to find out if something has a copyright? Click the search page for the copyright office and be sure to select Other Search Options. If you think your search will pull up a lot of records, select 100 records per page from the pull-down menu to the left.

Make sure to be as specific as possible, but you might need to go less specific in order to be truly diligent. For example, a search for Sally Field’s character, Sister Bertrille, might not bring up anything. A search for Bertrille might give you something, but a better search would be for the television program the character comes from, The Flying Nun.

Here’s the copyright for the theme song to that series.

But most people could guess that Field’s role or at least the series has or had some form of copyright. But what, exactly, is copyright?

The Elements of Copyright

According to the US Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

  • reproduce the work in copies or phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
  • perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? Absolutely! We call that a license.

When do copyrights expire?

Not surprisingly, the US Copyright Office has something to say about that.

Works Created on or after January 1, 1978 The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years.

and …

Works in Existence but Not Published or Copyrighted on January 1, 1978 The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047.

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists.

The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! And you’ll need it to defend a lawsuit.

If you ever doubt have concerns, do the legwork (or have your lawyer do so), and register your work.

More of the crash course later …

4 Comments
Working With a Cover Artist, Part 2Covers, Color Theory, Color Theory Part 2, Color Theory Part 3, Part 4, covers, cover artist, working with a cover artist,

Working With a Cover Artist, Part 2

Published by Janet Gershen-Siegel on October 11, 2022

It’s Time for Working With a Cover Artist, Part 2

There is more to the engaging of a cover artist part of working as an independent writer than just selecting an image or giving them an idea of what you want. Working with a cover artist involves some paperwork. Welcome to the business side of writing.

Because—surprise!—guess what you suddenly are now?

You’re a small business owner.

Working With a Cover Artist Should Mean a Contract

A lot of us get nervous talking about contracts and copyright and that is completely understandable. They seem difficult, complex, fraught with meaning, and all-too final. It feels like a prenuptial agreement sometimes – don’t you want to have faith that everything will work out all right?

Eh, not so fast.

This is not your great love (even if the cover artist is a friend or a relative). Instead, this is about rights. Your rights and the rights which belong to the artist.

The question is: who owns what? Without getting into the minutiae of copyright law just yet, this site offers not only a decent basic breakdown of the law in the United States, but also a good basic contract for a free download.

Contracts are also extremely helpful because they are, in part, a set of instructions. The artist produces the work as of X date, you pay Y amount of dollars as a down payment, etc. So, you get the idea, yes?

So, Are We There Yet?

Are you all set now, and just have to fill in the blanks and you’re good to go?

Not exactly.

Read over the agreement. If any of it does not make sense to you, talk to a lawyer! Even those of us not specially trained in copyright or contracts law can generally dope out an agreement.

Further, in the US, you have got to have competence in Contracts Law in order to pass the Bar examination. It’s a basic part of the Multistate Exam.

Hence even your friend the real estate lawyer should be able to answer your basic contract questions. Oh, and please pay for their time.

One Quick Tip

For the part which is about City, County, and State, you want to write in your own city or town and state, and county or parish. Why? Because if a lawsuit comes down, you will be a far happier person if you get to go to the courthouse in your county, instead of one potentially on the other side of the country. It will be far less expensive, and you will be far more likely to exert your rights if you feel they have been violated.

But when it’s a dispute for $100 and it costs $200 each way to fly to where the lawsuit is happening, you’ll do a cost-benefit analysis and not assert your rights. At least, that’s what the vast, vast majority of people would and will do.

Second Quick Tip

Introduce the idea of a contract before the cover artist does anything. Make it clear you won’t engage them to do the work if the agreement is not signed, but also give them an opportunity to look it over and make changes to it (e. g. they might agree to a different-sized format, etc.). Note: this agreement is rather artist-centric. They probably won’t have much of a problem with it. But it’s not outside the realm of possibility.

Be patient and pleasant like you would be with anyone. This is not you forcing the artist to do anything. But do insist on a signed agreement.

Anyone who is insulted by your insistence on signing an agreement is never, ever someone who you would want to work with. Ever.

Changes

You might want to make changes to a design. You can spell those out in the contract. Should the artist charge you for any changes? They might. So, make sure all of that is in writing. See why it’s a good idea to know pretty much what you want before you start? It could come in handy for, say, an agreement that the first three changes are free.

Working With a Cover Artist Means Payments

Don’t pay it all up front, and don’t agree to do so. If you are absolutely, flat-out broke, you should still be able to pay something, even if the artist hand waves and doesn’t want anything for their work. Be good to your conscience and at least ask if you can make a small donation to one of their three favorite charities.

Otherwise, payments should be as specified in the agreement. Are they in dollars, Euros, bitcoin, or something else? Do you pay with a check, a credit card, PayPal, or something else? When is the first payment due? What percentage of the total is due at the time? What’s the mechanism for getting a refund if things don’t work out?

If this sounds an awful lot like engaging, say, a roofer for your home, then ding ding ding! You’ve got it. You are, in essence, working with a service contractor.

Recommendations

Do you absolutely love your cover? Or do you dislike it but still think the artist is great (in other words, sometimes our visions can clash)? Then find out where and how to recommend them, whether it’s a recommendation on LinkedIn or a review on Yelp. And be sure to tell your writer friends, too!

Be good to your cover artist, and they will reward you many times over.

Leave a Comment
Working With a Cover Artist, Part 1Covers, Color Theory, Color Theory Part 2, Color Theory Part 3, Part 4, covers, cover artist, working with a cover artist,

Working With a Cover Artist, Part 1

Published by Janet Gershen-Siegel on October 6, 2022

Let’s Look at Working With a Cover Artist

Have you ever worked with a cover artist?

They are a fellow creative soul. But they express their artistry in a far different way from how you and I do.

It is like any business relationship, or it should be. Respect your cover artist, and they will help you. Don’t, and beware!

Get an Idea of What You Want Before You Start

So the last thing a cover artist wants to hear is, “Surprise me!” When they ask you how you envision your cover, you need to have an idea. One of the best ways to get such ideas is to browse Amazon, Barnes & Noble, and even your local bookstore. Look at the typical covers in your genre. Are they natural-looking? Industrial? Hand-drawn?

What are the predominant colors? Black and white? Green? Pink? Red? Something else? So are they angular, or are the shapes softer and more muted?

Consider the fonts as well. Science fiction tends to have sans serif fonts. Romances tend to have serifs and script display fonts.

Also, are there people on the covers of the books in your genre? Is it two people holding each other, or just someone’s impressively chiseled abs?

Use Care!

Now we have all heard or read the expression, don’t judge a book by its cover.

Except that it’s absolutely untrue. We do judge books by their covers. All. The. Time.

Do Your Cover Artist a Favor and Do Some Research

If the covers in your genre’s section of the bookstore are all orange, should your cover be orange, too? It’s hard to say. You want it to look like it belongs in that section, right? But you also want it to stand out. I would say, if you are a new author and you are predominantly selling online, you need to consider how your work is going to look when it’s shown with others in the genre.

Perform an Amazon or Barnes & Noble search for your genre, and for any keywords related to your plot. If your book is a children’s work about a super-ocelot named Clive (please don’t steal this work. I suddenly have a wicked plot bunny ping-ponging around my head), then you could search under children’s works and then under superheroes or animal stories, etc.

Do some in depth research because your cover is a valuable piece of your marketing.

It might even be helpful to take a screenshot, print it and then consider images which would fit in and images which would stand out.

Your Name

So, your name is probably not going to be recognizable to most people. While it is an important part of the cover, it might be better for the artist to make the title stand out more. Unless you are very famous already, it is highly likely that the cover will have the title of your book at the top and your name at the bottom.

Cover Artist Contracts!

Oh, and another thing – be sure to have a written agreement with this person. Even something relatively informal, signed by both of you, is better than nothing. But why? Because you’re exchanging money for labor. And that means, sometimes, people sue.

This is the very essence of the business side of writing. So, it’s time to pull out all the stops and be a professional about such things.

Leave a Comment
Why You Can’t Charge for FanfictionLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Why You Can’t Charge for Fanfiction

Published by Janet Gershen-Siegel on August 11, 2022

Do You Know Why You Can’t Charge for Fanfiction?

I enjoy fanfiction as much as, perhaps, the next person. But you still can never, ever charge for it. I implore you: don’t even try.

Seriously, put it out of your mind. Someone owns that copyright. And that someone is not you.

But aren’t there exceptions?

Yes, there are some. But they have limitations. Do not hang your hat on them. So first, let’s talk about why fan fiction is problematic.

There are Issues With This Form of Expression

For writers like you and me—and Stephen King and JK Rowling as well, etc.—we prepare our own universes. Some universes are familiar and take any number of real-life elements.

For example, King’s The Stand mainly takes place in more or less present-day America. King does not run into any copyright issues with New York City being New York City. Other places in the book, though, are more the product of his imagination. In Rowling’s Harry Potter universe, though, a lot more of the scenes were dreamt up by her.

For both authors, and for countless others, originality consists of creating a universe, creating characters, devising a plot, and then executing the plot in some fashion. Even in familiar settings, there is still scene setting and universe creation. But it’s more a function of subtraction that addition. That is, you don’t make New York City. You just take the Chelsea section of it.

But that’s not the case with fan fic. In fan fiction, another person (or persons) created the universe and the characters. Even when the fanficcer adds characters, the fictional world remains the original author’s creation. Hence one of the main issues with fan fiction is that it keeps the fanficcer from learning how to do that.

Fair Use and Other Exceptions to Copyright

Time to look at the law.

Per 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use:  

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Can You Use a Fair Use Argument?

Eh, not really.

So the sad old truth is that there are only a few ways to get around copyright. In general, you’re a lot more likely to be able to claim fair use if what you write is educational. This includes citing passages in scholarly works and articles.

If you’re writing an article about Star Trek, no one’s going to have a winning copyright case against you if you write “Live Long and Prosper.” Hell, they wouldn’t even have a good case against me right now, either. Educational, yo’. And, you might be able to argue that the phrase is a part of the general public lexicon now, much like “Live and Let Live”.

The “nature” bit in the law mainly refers to whether the source material is published. Published source material is more likely to be the foundation for fair use. With fan fiction, at least, that is virtually always the case.

Amount and substantiality is a kind of sliding scale. My writing LLAP, above, is tiny when you compare it to the vast array of Trek products, writings, and broadcasts out there.

Finally, the effect part can cover everything from whether the public would be deceived by a too-close copy to using the characters for out and out porn. And while even porn can sometimes that can be seen as parody, recognize that parody is often even harder to prove.

What About Saying You Don’t Want to Make a Profit, or Not Selling it?

Neither matter. 

You can write up disclaimers until the cows come home. But they have nothing to do with the above statute. As a result, this means you can be on the receiving end of a lawsuit even if you give your stuff away. Yep, even if you pay people to take it.

But as a practical and public relations matter, big rights holders are less likely to sue when it’s freebie fanfiction.

Why?

Because the last thing many large corporations want is for the press to turn it into a David and Goliath situation. And these corporations really don’t want to potentially lose and see their copyright get chipped away at. Also, these corporations know that most fan fiction isn’t too popular. So, why draw attention to it?

I’m not suggesting you have free rein, by the way.

Seriously, if Disney (for example), tells you to knock off with fanfiction, do yourself an enormous favor and do so. You do not have the House of Mouse’s deep pockets and access to a stunning array of experienced, high-priced attorneys.

Benefits of Fanfiction

It’s not all bad, of course. The biggest and most measurable benefit is that it keeps you writing. You can often spark creativity by simply being creative, that is, you write five or seven days per week, and you can fill up that writing time fairly readily.

But if you only write three times per month, you may find you have writers’ block when you make the infrequent attempt. There is something about the pressure of deadlines or at least the pressure of your own internal expectations. It helps to not have a blank page to stare at all the time.

There is nothing whatsoever wrong with borrowing another’s universe in order to keep writing and exercising the creativity muscle.

Just don’t try to sell it.

Do YOU know why you can’t charge for #fanfiction? Does it really matter? If you don’t want to be sued, it sure does! #amwriting

Leave a Comment
Transitioning from FanfictionLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Transitioning from Fanfiction

Published by Janet Gershen-Siegel on June 28, 2022

A Look at Transitioning from Fanfiction

If you first wrote in someone else’s universe, and now you want to claim your own, you may be transitioning from fanfiction.

Transitioning from Fan Fiction Writing to Wholly Original Writing

It’s more than just ‘filing off a few serial numbers’. In particular, wholly obvious plot conventions and details may need to be nixed completely. Transporter room, anyone? Tatooine? Two brothers fighting demons? A bunch of sparkly vampires? Yeah, you get the idea. You’ll probably need to change any of those radically.

How Writing Fanfiction Can Help You

It teaches you how to follow continuity. And it can keep you writing when you’re stuck. Writing begets more writing (even fan fiction!). So it pays to keep going. You are better off, in terms of preventing writer’s block, to just keep on writing. Hence, if all else fails, go with fan fiction. Of course there are plenty of places to post it online. Here’s one.

How Writing Fanfiction Can Hurt You

The problem is, it does not teach you how to make your own world. Hence it can hamper your growth in this area. Furthermore, if you are not used to making your own characters, it can hurt you there, as well.

Flip Your Perception

So consider what the foundational IP (intellectual property) does, and why it matters to you as you start the process of transitioning.

  • Interesting stories – spend some time deconstructing your favorites. Where did the writers hand-wave a problem away? Also, where did they get confusing? In addition, where did they deliver on the promise of their teaser/preview?
  • Compelling characters – why do the canon characters matter to you? Again, engage in some deconstruction. Forget who plays a character. So consider how you would feel about a character if someone else played them. Furthermore, consider how you would feel if the character’s gender and/or sexuality were swapped. Would you feel different if the character was of a race different from the current actor’s? Be your own casting director. Who, living or dead, could play the role better?

More Ideas

  • Fascinating scenes – even within a familiar place, commercial intellectual property exists inside its own bucket. It might be a city block, a hospital, a car driving across the country, or somewhere else. But what would happen if the scene shifted? Does the work succeed if it moves from Milwaukee to San Diego to Angkor Wat?
  • Action-driving plots – what kicks things off? If it’s a television program, what happened during the pilot? Did someone new move in? Did someone lose their job? Attend their own wedding? Have a kid? Graduate? Get arrested? Would the storyline still work if the pilot was different?
  • Believable effects, makeup, costumes, lighting, scenery, etc. – technology is a part of onscreen fiction writing. New techniques are constantly being invented. This helps studios save money but also enhance believability. What happens if an older show or film gets new makeup and green screening? Does that help the story, or harm it?

Finish Transitioning Over and Blaze Your Own Trail

For every exciting intellectual property out there, whether it’s books, films, YouTube videos, TV programs, or something else, it all started somewhere.

So what is your story? Who are your characters?

Who knows? Maybe someday someone will want to write fan fiction about your work.

Transitioning from fanfiction is easier than other types of transitions. So try it!

1 Comment
Working with CoversCovers, Color Theory, Color Theory Part 2, Color Theory Part 3, Part 4, covers, cover artist, working with a cover artist,

Working with Covers

Published by Janet Gershen-Siegel on January 18, 2022

Let’s Look at Working with Covers

Covers! Let’s say you aren’t working with a cover artist. Or maybe you are doing the covers work, and you have purchased the artwork and you been given full rights to it, to do with it as you please. Or maybe your work is not selling, and you are looking to make your own cover or covers (perhaps with a unified theme). Not to worry. I got ya covered.

Making Your Own Covers (10 Rules)

So you might find that this is the way to go. Also, this can be an option if you are a decent photographer or cannot afford a cover artist. However, seriously consider a cover artist just the same. Or try Fiverr if you’re really stuck!

But let’s say you are bound and determined to create your own cover art.

Some Tips

  1. First of all, do yourself a favor, and use a program designed for this purpose. This means Adobe Photoshop or Adobe InDesign, or Gimp. Please don’t use Paint. This is because you just won’t have the options you would with these other programs I’ve listed.
  2. Go simple. Why? Because busy covers look terrible online, and they usually don’t look so hot in bookstores, either. Consider a main element from your story and go with that as your image. The Twilight novels use this to stunning effect.

Use the Right Images

  1. Use images which you have permission to use, always! Just because you can right-click on an image does not mean you have permission to use it. Here are three ways to assure you have permission to use an image:
    • Take the picture yourself.
    • Buy it from someone! Also, don’t forget to have a written agreement with them for usage. And you may need to attribute them in some manner. Be a sport about that and never given the artist a hard time about crediting them.
    • Get it from a friend or relative who has taken it. Yet again: don’t forget to have a written agreement with them for usage.
  2. Don’t use a model unless you get a model release.

Working With Images

  1. Start with a big image. Scaling it down is possible. Scaling it up will result in a loss of quality.
  2. Consider what the image will look like if it any part of it is cut off. This is another argument in favor of simplicity.
  3. Consider what the image will look like on mobile devices. Most of us access the internet via our phones at least some of the time. Ignoring what your cover looks like on a phone or tablet is an exercise in losing sales. And, you’ll need to see how it looks as a thumbnail, because that is how it will show up in places like Amazon.
  4. Never, ever use the word ‘by‘ unless you are referring to an ‘edited by‘ line. Otherwise, just use your name as the author name. Don’t believe me? Go to a bookstore or Amazon and look at what’s out there.

Fonts and Verbiage

  1. If the title is in serif font, use sans-serif for your name, and vice versa, unless you are using the exact same font. In other words, don’t use two different serif fonts. They’ll look mismatched.
  2. Also, make sure your verbiage (title and author name) is readable! This means size and color, and sometimes outlining. Usually it helps if your image is more or less all one color or at least one color tint, tone, or shade. That, is make it all bright or all pastel or all muted, as that will make it easier for the verbiage to stand out and be readable.

Finally, practice! You aren’t going to turn out a great cover without knowing your program well.

Oh, and please, please get feedback from lots of people. Much like your prose needs to be edited, it is highly likely that the first cover your create will need to have some kind of changes made to it.

Covers: Takeaways

Creating your own covers is very possible, and some people can become very good at it. You can potentially become one of those people by keeping things simple and following the cover conventions of your genre. A romance novel cover does not look like a science fiction novel cover. Don’t try to fit that square peg into a round hole.

Also, a well-liked cover artist who also writes is a natural for beta reading groups, book discussions, and writers’ groups on places like Facebook and Meetup. Those are your prime customers, if you ever want to sell your cover designs.

You can do it!

Leave a Comment
Creative CommonsLegal, Creative Commons, fanfiction, crash course, copyright law, exceptions, Practice Law, Avoiding Common Legal Mistakes, Transitioning, cyber infidelity,

Creative Commons

Published by Janet Gershen-Siegel on January 11, 2022

A Look at Creative Commons and Whether You Can Use Certain Images

What is Creative Commons?

Their story is best told by them:

Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.

But this is not copyright! Instead, the concept exists to work with copyright, in order to help you refine the rights in your work. Also, it can work to help you understand the nuances of rights in others’ works. But which others? Cover artists and songwriters, to name two.

Can I Use All of the Images That I Find Online?

Absolutely not. Just because you can right-click an image or take a screenshot does not mean you have the right to just take it. And do not get me started on wiping off someone else’s photographic watermark.

Just don’t do it. Don’t be a jerk.

It doesn’t matter if everybody else is doing it.

Currently, CC specifies six separate types of licenses. So be sure to click and read the specifics!

  • Attribution CC BY – this is the most open of the licenses. It allows others to do nearly anything to a creative work. “This license lets others distribute, remix, adapt, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.”
  • Attribution-ShareAlike CC BY-SA – this one is similar to CC BY. Except, it requires you attribute to the original artist. Wikipedia uses this one!
  • Attribution-NoDerivs CC BY-ND – you can pass along the work. But you can’t alter it. And you must credit the creator.
  • Attribution-NonCommercial CC BY-NC – you can alter the original work, but you must credit the original artist. Furthermore, you can’t make any money from the work.
  • Attribution-NonCommercial-ShareAlike CC BY-NC-SA – this one is the same as CC BY-NC. Except, you must license any new creations under identical terms.
  • Attribution-NonCommercial-NoDerivs CC BY-NC-ND – this is the most restrictive license, allowing for sharing. But attribution is required. Also, you cannot make any changes. Further, the sharer can’t make any money off the creative work.

Takeaways: What Does Creative Commons Mean to Us Writers?

Probably the biggest and most important way it matters is when we look for images for covers, or we hire a cover artist. If you don’t know where an image comes from, or you aren’t sure, change it. If the cover designer balks, then your remedy is clear.

Find another cover designer.

I recognize that covers in particular are rather expensive. You may be tempted to cut corners.

So, don’t come crying if someone does the same to you.

Creative commons also matters when it comes to music. Are you creating an author teaser trailer for YouTube? Is it monetized? If you’re not providing attribution as needed, or if you don’t have permission to use music, then don’t.

Here, the remedy can actually be pretty cheap. There are a number of public domain music sites out there. You’ll have to do some digging in order to determine which one is best for your purposes.

And finally, respect other artists—writers, singers, songwriters, musicians, artists, etc.—as much as you want them to respect you.

Leave a Comment