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re: Can I Use Classic Rock Song Lyrics?

in Contracts by

Dear Editor…

I am working on a new short story, and I make use of several classic rock songs. They are integral parts of the story and character development, and I use around 3-4 lines per song. “Fair Use” guidelines are of course vague and my main concern is an editor not publishing due to copyright concerns. So how should I go about this?

Sincerely,
BB

Dear BB…

You can’t safely use any song lyrics without written permission to do so. Fair use is indeed fuzzy and applied case-by-case, so there’s no empirical measurement regarding how many lines, if any, would be okay to use without that permission. I’d like to think creative people would allow other creative people to use snippets in the manner you describe, but there’s an argument to be made for compensation for intellectual property. That argument can lead straight to court. Will that risk affect publisher interest in your project? It could. I’ve seen publishers weigh projects that involved estates known to be litigious, and it wasn’t something anyone relished. But here’s the thing: a publisher will tell you if your use makes them skittish. You could submit without the permission and, if they want the project, they’ll discuss the copyright issue with you. They’ll probably require copyright clearance, writing it into your contract. Your safest bet is to seek permission. Probably not the answer you wanted, but it’s the path that will keep you safe.

Happy writing!
The Editor

re: Must I Contact Descendants for Biography?

in Contracts/Historical Fiction/Nonfiction/Picture Books by

Dear Editor…

During the recent Picture Book Idea Month hosted by Tara Lazar, I had a question that popped up (and was referred your way). I have a nonfiction biography I’m working on (creative nonfiction). If the person still has possible living descendants, do you track them down for permission to write about the historical person (if they’re not someone famous)? What would a publisher’s or editor’s perspective be on a project like this? Any idea?

Sincerely,
Jena

Dear Jena…

Though you don’t need descendants’ permission for biographies of private people, descendants can conceivably sue for an aspect of defamation/ invasion of privacy. They may not have standing or a strong case in this legal gray area, but you’d have to deal with it. Publishing contracts are usually worded to put that on you, although in-house attorneys weigh in. If your portrayal isn’t complimentary, smart money says have a publishing attorney assess your specifics to prevent greater future expense. I recently urged a client to do that because her subject is current generation, the circumstances emotional. The longer your subject has been deceased, the safer you likely are. Is there a moral imperative to seek permission? Get their blessing? I and experts I spoke with don’t think so. What if they decline? Will you trash your project? Do consider that descendants can be great resources, confirming/correcting info and providing insights, photos, documents. You could reach out for interviews or info without asking permission. Share your angle and aim to be thorough and fair.

Happy writing!
The Editor

re: Wait for Agent or Enter Contest?

in Contracts/Publishing Biz/Submissions by

Dear Editor…

For several months I had planned to enter a YA novel contest with a small Indie publisher. The window to do this is from May 1 to June 30. Recently I was asked to submit a full of this same novel to a requesting agent that I thought was a no response. The contest is for unagented authors. How do I handle this if don’t hear from agent before the deadline?

Sincerely,
Unagented But Hopeful

Dear Unagented But Hopeful…

Kudos on the request! I hope that’s your ticket, but it’s wise to weigh other options. Plan to enter the contest late in the entry window to give the agent time to read your manuscript; she may reply more quickly now that it’s on her “Strong Interest” radar. I’d also email her to say you’re considering the contest but will withdraw your entry should the agent be interested in pursuing representation. Wording it in the name of communication, such as “I sent you the full ms as you requested. I wanted to add that I’m planning…,” will avoid it coming off as threatening. Winning the contest would make representation of that project moot, so most agents would appreciate the additional context. Really, you have till winner announcement date to withdraw, if the rules don’t say just entering commits winners to publication. That’s unlikely, though not unheard of, either. You’ve got two months till the contest deadline, time enough to email the Indie for clarification. If entering is committing and you don’t hear from the agent despite your heads-up, let your career preferences guide your difficult choice.

Happy writing!
The Editor

re: Can My Small Press Book Get a New Life with a Big Publisher?

in Contracts/Publishing Biz/Submissions by

Dear Editor…

I have a book published by a small press. It was never reviewed by any of the major kidlit reviewers prior to publication. However, an editor at one of them later told me she would have reviewed it had she known it wasn’t self-published. The book received positive reviews. I’m working on new projects, but still feel this project didn’t get its best shot. Is there a process for submitting a small-press book to large publishers when sales have not reflected the book’s potential?

Thank you,
M.

Dear M….

Big publishers will consider republishing books if they believe the book is timely and has untapped potential – but you have extra submission hurdles, the biggest one being the low sales numbers in bookseller databases. Booksellers aren’t likely to pick up a low-selling book a second time even if it’s got a different publisher. You have elbow room if part of the problem was that the book didn’t get into bookstores in the first place. The positive reviews work in your favor. Ask your publisher to revert the rights back to you; your contract should have a clause explaining how to do that. In your pitch to new publishers, explain the circumstances of its low numbers and present a case for why you’re able to help promote the book more heavily this time. If it’s a picture book, you need the artist’s O.K. to re-shop the book and s/he must get the illustration rights reverted. Or you can shop just the text, to be re-illustrated. Your new house could then pitch this as a new frontlist title instead of a reprint or republication, giving it a fresh lease on life.

Happy writing!
The Editor

re: What Lurks in the Fine Print of Writing Contests?

in Contracts/Submissions by

Dear Editor…

Is it all right to submit the same piece of writing to more than one contest?

Sincerely,
Elizabeth

Dear Elizabeth…

Some contests require exclusivity, some don’t. Luckily, legitimate contests declare their exclusivity stances in their Official Rules. Scour those rules, because surprises can lurk there. For example, the Amazon Breakthrough Novel Award Contest has a “Manuscript Shopping Rule” that says you can’t submit your manuscript to publishers during the judging period. That’s not unusual for a contest, especially if it’s hosted by a publisher. Amazon’s “Grant of Rights” rule shows something else that might surprise you: the right of first refusal. That is, in some cases Amazon gets the chance to sign up or reject the entered project before the author can enter into a contract with another publisher for it. Also, Amazon declares the right to post excerpts of your entry on any Amazon-affiliated website, whether you win or not. (Amazon’s rules: http://amzn.to/XkFsk7). You need to be okay with ALL of the contest’s fine print before you enter.

Happy writing!
The Editor

re: I Don’t Want to Bug My Agent, But…

in Contracts by

Dear Editor…

My agent will be negotiating a two-book deal with a publisher for me. An experienced children’s author friend of mine brought up four issues I might want to talk to my agent about: separate accounting for the two books, escalation clause, electronic rights split, and who has the right to sell the film rights. My main questions to you: Should I talk to my agent about this before she starts negotiating? Just bring up one or two of these issues now? Or wait and see what she and the editor come up with first and then get into it? (Is this last option a bit late in the game?)

Thanks,
Debut Author

Dear Debut Author…

First, huge congratulations to you. Second, banish that Timid Author Syndrome, my friend. Don’t step into your writing career with the mindset of a grateful pawn—you are a partner in a business venture. These are your books, and these negotiations will affect your income and intellectual property. Understand as much of what’s going on as possible. Your friend is concerned because joint accounting (which requires both books earn out before you get royalties) doesn’t favor authors yet some publishers insist on it, film rights are sometimes best handled through sub-agents than publishers, and electronic rights are a battleground these days. Your agent knows this publisher’s strengths and will explain why some things are worth fighting for while others should be granted. Ask before she starts negotiating so no one has to backtrack. That’s not stepping out of line, it’s making sure you’re all happy with the final contract.

Happy writing!
The Editor

re: President Obama’s Book Contract v. Mine . . . Any Similarities?

in Contracts/Publishing Biz by

Dear Editor…

Business Insider just ran the article “How Barack Obama Made His Fortune” by Walter Hickey that included details of President Obama’s book deal for The Audacity of Hope. Obviously I’d never get a $1.9 million advance, but how about the rest of the percentages? Would my book contract look like that?

Thanks,
Anonymous

Dear Anonymous…

It’d be more similar than you’d think. Mr. Hickey’s article says the President’s book contract grants 15% of the list price for hardcover copies (10-15% is common), 7% for trade paperback (you might get 8%), 8% for the first 150,000 copies sold of the mass market paperback with 10% thereafter (6% and 8% are common), and 10% for audio recording (standard). The big difference is that 150,000 escalator. If your publisher predicted sales like that, you just might quality for that $1.9 mil! Most of us cross our fingers for more modest numbers, say in the early double-digits, at least in the first year or so, and our advances and escalators reflect that. We’re talking more like 12.5% at 10,000 copies with 15% at 15,000 and thereafter. You may have to ask for an escalator, which ups your cut when sales are strong. Most publishers prefer that to raising advances because an escalator is payment on actual sales, not on predictions.

Happy writing!
The Editor

re: How Long Does a Publisher Have the Rights to My Book?

in Contracts/Publishing Biz by

Dear Editor…

When you sign a contract, does the publisher get the rights to that book for its whole copyright time?

Thanks,
R.

Dear R….

No way! That would give the publisher rights for your lifetime plus 70 years, which is the term of copyright. You’re only granting them rights to the book while they keep it in print in at least one format (hardcover, paperback, etc.). The rights revert to you when the book goes out of print (OP). But there’s a catch: Publishers can simply call a title out of stock (OS) instead of OP as a hedge against the possibility of renewed consumer interest in the book down the line—say, if you win a Nobel Prize for curing a disease and suddenly folks want to read your old book about the amazing life of bacteria. This is particularly problematic with ebooks, which don’t really ever go out of print. The digital files can sit on a server forever, ready for instant sales. If your contract doesn’t already have one, negotiate a clause that declares your book OP when sales dip below a certain number for an accounting period (publishers have two per year). That’s fair for all.

Happy writing!
The Editor

re: Can I Use That Title, Too?

in Contracts/Publishing Biz by

Dear Editor…

Is it OK to use the same title for a new YA novel as an already published adult novel?

Thank you,
Laurie

Dear Laurie…

You can’t copyright a book title, so you’re *almost* free to use one that’s already on another book. Two points to consider: 1) Will anyone confuse your book with the other one? Yours is a different category, so probably not. 2) Has an association between the title and that other specific work been established in the public mind? Or, as the US Patent and Trademark Office puts it, did that title have “wide promotion and great success” that could’ve established a secondary meaning and thus be protected by some states’ “unfair competition” laws? Here’s an interesting peek at trademarking book titles, series titles, and characters on the USPTO site that offers a larger view of this issue.

Happy writing!
The Editor

Guest Editor Randy Morrison re: Legality of Using Real People in Fiction

in Contracts/Guest Editors/Publishing Biz by

Dear Editor…

I was wondering what legal problems (if any) are associated with using real people as characters in fiction? I’m not talking Elvis, or someone who would obviously have an estate with a problem, more like a fantasy novel about people who have disappeared through the ages (like Louis Le Prince, or Dorothy Arnold.) What’s the rule? Is it easier to just avoid it altogether and name them something else?

Thanks,
Megan

Dear Megan…

Le Prince disappeared in 1890 at age 48; he is certainly long dead by now. That means neither he nor his descendants, nor his estate, has any privacy or reputation rights, and that anyone is free to create a work “based upon” or “inspired by” his life, even if it takes issue with Brian Selznick’s Invention of Hugo Cabret about who really developed the first motion picture system, Lumiere or Le Prince.  There is no legal remedy for “blackening the good reputation” of anyone who is dead.

No one owns history, and when history is cloudy or disputed, anyone can fill in the gaps as they see fit, including fictional details, as is frequently done with stories about Amelia Earhart, Robin Hood, the much married and divorced King Henry, and other “legendary persons.” Everyone has a free speech right to interpret history, or to tell or even revise it to promote their agenda.

When a writer uses a real, living person as a character in a literary work, then there are several potential issues. The expression rights of the First Amendment have to be weighed against the specific facts. Possible issues include: 1) defamation (the publication of false facts about a person, asserted as true, which injure reputation; google this: Palin lawsuit McGinnis); 2) privacy (public disclosure of private facts); 3) false light (telling the story in a manner that leaves a false or misleading impression); 4) misappropriation (“free riding” on other people’s work); 5) right of publicity (the right of famous persons to commercialize and exploit their name, likeness, image, reputation, or distinctive singing style; this is a property right that can be bought and sold (Presley, Three Stooges); 6) infliction of emotional distress, called “outrageous conduct” in some states. If the real person’s story has already been published, then there may be copyright issues. If the subject person is the founder or public image of a company (“Newman’s Own”, “Trump Tower”) then there could be trademark, product disparagement, unfair competition or other commercial issues.

The legal theories and standards of proof vary according to several factors, including: whether the portrayed person is a “public figure” (well known to the public, at least within their realm of fame); the degree to which the subject person has sought publicity or publicized their personal life (Kardashians, Charlie Sheen, Sarah Palin, Chaz Bono, confessional autobiographies, Facebook accounts); how broadly the story has been disseminated or published; the degree of care exercised to check the facts and avoid infringing on other people’s rights; whether a retraction or correction was requested or issued; and whether a malicious intent can be shown. For living persons, the safest course is to get their permission in advance, in writing.

“Is it easier to just avoid it all together and name them something else?” Yes, but it is wiser to do more than just change the name. To make real the legalese about “any relationship to any real persons, living or dead, is purely coincidental”, also change several of the personal traits and life story.

-Guest Editor Randy Morrison

Randy Morrison was a rock and roll disc jockey and radio music programmer in the age of The Beatles and Led Zeppelin. Today he is a nationally recognized authority on the intersection of First Amendment and zoning law, and also assists authors, agents, and editors with copyright, trademark, and other aspects of literary law. As an author he writes reference books for attorneys and mid-grade fiction about space-traveling circuses, often while listening to symphonies by Mahler and Tchaikovsky. His email address is literarylaw@gmail.com; he can be reached by phone at 619.234.2864.

Disclaimer: this information is provided for general educational purposes only, and is not intended as legal advice on any particular situation. No attorney client relationship is formed by reading this information.

re: Using Song Titles as Chapter Headers

in Contracts/Teen/Middle Grade Fiction by

Dear Editor…

My middle grade novel’s protagonist is moved when she learns a new song, which is at the heart of the book. Can I use the titles of published well-known songs as chapter headings? Will a publisher think this is too much work to get permission rights? There’s 15 chapters.

Sincerely,

June

Dear June…

Song titles are not protected under copyright law. For more on this, see the United States Copyright Office FAQ page. (It’ll also tell you about copyrighting your Elvis sighting, which tickles me to no end!) While your use doesn’t sound problematic, it is possible you could run into trademark issues. That is, some song titles are synonymous with the bands that made them famous and may be protected under trademark law. Remember the “Californication” legal fight between the Red Hot Chili Peppers and Showtime a few years ago? If you intend to publish your project through a traditional publishing house, in-house legal staff can verify your use of the song titles, so go ahead and use the titles in your manuscript without worry. If you’re going to self-publish, you can settle your mind (and CYOB) by verifying your use of the titles with an intellectual property law attorney. I’m just an editor; they’re the ones who can give you the official legal thumbs-up.

Oh, by the way, the publisher won’t think “it’s too much work” at all . . . because most publishing contracts require the author to secure the permissions.

Happy writing!

The Editor

re: Is My Independent Publisher’s Contract Normal?

in Contracts/Publishing Biz by

Dear Editor…

I submitted my query to a number of agents and an independent publisher and the publisher is interested in my work. I’ve received a contract and there isn’t any mention of an advance, and they’ve asked me how many books I would like to purchase to help with self-promotion. Is this normal?

Sincerely,

Cindy

Dear Cindy…

Signing with an independent publisher means venturing outside the traditional models of publishing. Depending on your personality and goals, that can be scary or exciting. Your potential publisher seems to be offering an alternative based on the concept of partnership publishing. That is, instead of offering an advance, they offer higher royalties than traditional publishers with the belief that you’ll be more inclined to participate in the bookselling process—especially the marketing part—in exchange for that larger royalty. Hence their inquiry about the number of promo copies you’d like to buy. The unusual part of that is that they’re asking; usually publishers specify the number. That’s certainly the case with traditional publishers, who’ll only give you a few free copies unless you negotiate otherwise. After that, you have to buy more promo copies, usually at a deep author discount.

The key word here is ‘negotiate.’ Some terms should be negotiable, such as the royalty rate, the number of free copies, and your author discount. Don’t be afraid to negotiate. ‘Partnership’ works both ways.

Happy writing!

The Editor

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