Hatrack River Writers Workshop Post New Topic  Post A Reply
my profile login | register | search | faq | forum home

  next oldest topic   next newest topic
» Hatrack River Writers Workshop » Forums » Open Discussions About Writing » Writerly Rights

   
Author Topic: Writerly Rights
aspirit
Member
Member # 7974

 - posted      Profile for aspirit   Email aspirit         Edit/Delete Post   Reply With Quote 
The recent change to Facebook's Terms (see below) got me thinking about distribution rights. How do distribution rights compare to copyright or any of the others? Do any websites or books address what writers should know about material rights? (I'm even unsure of the terminology.)

http://www.foxnews.com/story/0,2933,494064,00.html


Posts: 1139 | Registered: May 2008  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
The broad term is "intellectual property." In the context of writing, it's called copyright. The "distribution" you refer to is simply licensing of the copyright, not a new set of rights.

People may give you links to websites, or their own opinion, or whatever, but the only information that's worth anything in this involved and technical area of law is the advice of an attorney who practices regularly in the field.

If you think you have something of commercial value, you have two simple options: (1) don't share it publicly (all social networking sites count as "public"); or (2) hire a copyright attorney to advise you.

Option 3 is to rely on internet articles and lay opinions, which are worth the nothing you pay for them.

[This message has been edited by J (edited February 17, 2009).]


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
Zero
Member
Member # 3619

 - posted      Profile for Zero           Edit/Delete Post   Reply With Quote 
If you signed your ToS agreement before the change how can they have it retroactively apply to you? Isn't that like ex-post facto or something?
Posts: 2195 | Registered: Aug 2006  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
I'm not a lawyer but I do deal with it in an information security management context. FWIW ...

Terms and conditions such as these are dealt with under contract law. Things like "distribution rights" should be defined in the contract. There's no law I'm aware of that covers "distribution rights" or "material rights".

Copyright is dealt with under copyright law, which says, essentially, that if you orignate a work, you own it until and unless you sell the copyright.

So, for example, the copyright to much of the Beatles music was sold, and I believe Michael Jackson currently owns it (or recently sold it to pay his debts). Ownership of the copyright will be transferred and defined as such in the contract of sale, and ownership will be governed by contract law. The (new) owner of the copyright work can protect it from unauthorized use with copyright law.

If you sell a story to a publisher, unless you sell the copyright (most of us don't) you'll retain the copyright. What the publisher can do with the story (including distribution rights) will be defined in the contract of sale, and enforced with contract law. So, for example, if they buy first publication rights and nothing else, they can't distribute it further because that would violate your rights under copyright law.

If you sign a contract that says they can distribute your material how and when and where they like, I imagine this contract takes precedent over your rights under copyright law; if that does not automatically happen (and I'm not a lawyer and don't know) I imagine that in the contract they'll also make you sign away your rights under copyright law.

Bottom line: two laws to understand, copyright and contract. Don't sign away rights you want to retain under copyright law when you sign contracts.

The thing with Facebook is, I suspect, unique to online services where users generate and share content. I suspect what they're trying to avoid is the work of removing your content when you leave the service, and it's been used on other people's pages or in their advertizing (problem for them: how to find and identify your stuff when it's been copied who knows where). Also, copies are cached in search engines and while it's impossible to erase them; the original website (Facebook)can be held responsible for their continued availability (e.g. in unintended defiance of a court order issued as a result of a libel action). For stories published in regular print and on-line markets I don't see that it raises issues.


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
"If you signed your ToS agreement before the change how can they have it retroactively apply to you?"

Easy:

quote:

By using or accessing the Facebook Service, you agree that you have read, understand and are bound by these Terms of Use ("Terms"). We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice. Your continued use of the Facebook Service after any such changes constitutes your acceptance of the new Terms.

http://www.facebook.com/terms.php


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
Zero
Member
Member # 3619

 - posted      Profile for Zero           Edit/Delete Post   Reply With Quote 
I see. That's rather lame.
Posts: 2195 | Registered: Aug 2006  |  IP: Logged | Report this post to a Moderator
Zero
Member
Member # 3619

 - posted      Profile for Zero           Edit/Delete Post   Reply With Quote 
Not even a requirement for them to notify you of the changes? What if they had a particularly malicious change they made while you were asleep, the fact that you didn't delete your account within hours (or did not notice the change right away) therefore holds you legally in agreement with it, and forced to submit to it?
Posts: 2195 | Registered: Aug 2006  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
Yup.

There isn't a law that mandates being nice to your customers either. As Doctor Deming once said of companies that are customer-unfriendly, "Survival is optional."


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
Zero
Member
Member # 3619

 - posted      Profile for Zero           Edit/Delete Post   Reply With Quote 
What about content I had uploaded but later removed (before the magical transition)?
Posts: 2195 | Registered: Aug 2006  |  IP: Logged | Report this post to a Moderator
Zero
Member
Member # 3619

 - posted      Profile for Zero           Edit/Delete Post   Reply With Quote 
It seems they have reversed that decision.

http://edition.cnn.com/2009/TECH/02/18/facebook.reversal/index.html


Posts: 2195 | Registered: Aug 2006  |  IP: Logged | Report this post to a Moderator
Greenscreen
Member
Member # 6896

 - posted      Profile for Greenscreen   Email Greenscreen         Edit/Delete Post   Reply With Quote 
I figure it's just best to be extra cuatious for now. Least that's what people keep going on about.
Posts: 61 | Registered: Nov 2007  |  IP: Logged | Report this post to a Moderator
Greenscreen
Member
Member # 6896

 - posted      Profile for Greenscreen   Email Greenscreen         Edit/Delete Post   Reply With Quote 
So, does anyone know where i might find out about how tio best protect my rights????
Posts: 61 | Registered: Nov 2007  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
Borders, because books on law are cheaper than lawyers. (And make sure it was published in 2008 because law changes quickly.)

I imagine you mean your rights as a writer, or as a contributor to an on-line community, and if that's the case, you want a book on copyright, contract and libel law, as well as the broader issues of protecting freedom of speech, personal privacy and freedom of information. It's a complex nightmare, made worse by the fact that laws are written vaguely, and their interpretation is fine-tuned through precedents--cases that have been previously settled by courts and so provide a model of interpretation for use in resolving later disputes.

It's worse again online, because the internet evolves faster than the law can keep up with, because the internet can support anonymity, and because laws are different in different countries.

Hope this helps, but I doubt it.


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
aspirit
Member
Member # 7974

 - posted      Profile for aspirit   Email aspirit         Edit/Delete Post   Reply With Quote 
What I see here is that electronic rights, first distribution rights, copyright rights, etc. are defined in each contract, so there are no established definitions. Is that right?

I have trouble believing most authors hire an attorney for their first sale. Am I ignorant to think that doesn't happen?

I like to read through books for answers, but I don't think any of us want to waste money on misleading material.


Posts: 1139 | Registered: May 2008  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
Intellectual property rights are a peculiar legal beast. Up until the dawn of the 18th Century, there was no protection anywhere. An author could publish their work at one print shop, and see it published by another print shop next door in a matter of days, with no royalites, no editorial control, and no say whatsoever in the matter. Up until the latter 19th Century, popular novels saw legitimate and protected publication in one country and as fast as the fastest ships could carry it across the ditch, it was published in another country, again, at no profit or under any control by the author.

The United States Constitution authorized copyright legislation in 1787, first enacted in 1790. The Statute of Anne, in Great Britain, was the first ever copyright act, 1710. The Berne Convention, 1886, extended copyright protection across international borders, but nonsignatory nations ignored copyrights. Some still do, and ignore or merely pay lip service to more recent global copyright agreements, like the World Trade Organization's TRIPS, The Agreement on Trade Related Aspects of Intellectual Property Rights.

Up until the US Copyright Act of 1976, rights infringements could be adjudicated in state or federal courts. However, the 1976 act abolished all state copyright laws. Copyright lawyers are, anymore, federal courts lawyers. On the other hand, the 1976 act extended the caliber of protections for authors as well as extended term limits. In a rare and sweeping example of unanimously praised legislation, the 1976 act effectively established a balance of law for the various legitimate concerns involved in publishing.

At it's simplest, copyright protection is automatic for any creative intellectual property in a fixed, tanglible form. Some exceptions apply, like a spontaneous or extemporaneous oral or live presentation not recorded is not protected because it's not fixed in a tangible form. Short works, of one or a few words can't be copyrighted. (One of the commercial issues for pinhead fiction is it's length. Ernest Hemingway's "For sale; baby shoes, never worn." incorporated as part of a larger work is protected.)

Digital publishing rights are still in their infancy legal-wise. There are a few challenges to digital rights in the courts, but the courts have typically held that the language of a rights contract addressing digital rights provides adequate notice of rights. One of the more common challenges has been whether a digital publication is, in fact, in a fixed and tangible form. The courts have not specifically addressed the issue in a universal fashion, but precedents are inclining toward recoginizing that digital formats are fixed and tangible media.

In fee simple, terms of use notices on Web sites typically incorporate what usages a user may enjoy. Effectively giving away first digital publication rights is common on social networking sites, but does not result in loss of rights possession. A key word is "nonexclusive." Stated intent is also critical to what a Web site host may do with contributor content.

Anything published on the Internet is expressly, automatically afforded copyright protection, a feature of the Berne Convention Implementation Act of 1988 and later copyright legislation. Fair use and outright open-ended permission to use digitally published intellectual property notwithstanding, it's still protected. Rights infringement might not apply, but moral codes still do. Plaigarism is still plaigarism. Attribution is required by convention in the US regardless of granted permissions. In some countries, plaigarism is a criminal act. In the US, rights infringement is a criminal act; plaigarism, not necessarily. However, plaigarism is one of the most vile acts of intellectual piracy imaginable: lying, cheating, and stealing.

First-time authors don't always sign publishing contracts under the advice and consent of a lawyer. But like with anything legal, when one puts their signature on a contract it's a good idea to have a full understanding of all the terms. Any contract should, at least, be reviewed by a lawyer.

Caveat emptor, let the buyer (user) beware.


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
To add to what extrinsic eloquently said ...

I would not hire an attorney for short story or book sale. But, I've been a consultant for many years and read contracts between myself and clients, between clients and their customers, and have learned that while contract language can appear obfuscatory, it can be penetrated. And I trust my judgment on these things. Others might not, in which case an attorney is required, I guess.

I would imagine that reputable publishers and agents have standard contracts which are fair to both parties, for things such as sale of first USA print rights, sale of first global print rights, anthology rights and movie rights. For a reputable company it's not worth risking one's reputation on dodgy contracts, nor on writing one-off contracts that are non-standard in some way and therefore demand the expense of an attorney.

Disreputable print companies are different, and they're discussed on various writer's websites. Their contracts are bad for authors.

On misleading material, well, I chose a book on computer security law because it was published in 2008 by Oxford University Press --so, up to date and from a reputable publisher that uses authoritative reviewers.

A few years ago I wasted a very large amount of money on a misleading lawyer, whose bad advice I mistakenly and disastrously followed. We're responsible for our own decisions, whether the book to trust, the lawyer to hire, or the publisher to do business with.

I believe things are more civilized in the print world than on-line. When a work is published on-line, not only is the law less mature and thus not easy to interpret, the internet is an untamed world because copying is easy and enforcement is not.

As the music industry found, even if copying is illegal, people will do it if it's easy; some will even make the case that, since they want to, they should be allowed to.

Enforcement is made difficult in the cvirtual world by the way the law changes from one country to another, by the need to determine where the offence was committed (if I copy material from a US server to a Russian one using my UK internet account, where was the offence committed and which country's law applies?), and by the fact that millions of people copying one work are expensive to chase down.

In terms of blogs and so on, it seems to me that copying of material is rife. The more honest websites and blogs quote or include a pointer to source, but many don't bother and the worst claim the copied material as their own. That's why a Google search for an explanation for some obscure puzzle will turn up ten websites all saying exactly the same thing, word for word, and offering no clue as to who wrote it first.

I'm not sure it happens with on-line F&SF e-zines though, because they're generally run by editors with respect for the rights of writers.

Bottom line: I'd not bother with an attorney in a standard print contract with a reputable publisher, or a standard contract with a reputable e-zine ... but either way, I'd check it myself and trust my ability to do so, referring to my reputable book if necessary.


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
I can't emphasize this enough--an intelligent person with an updated (dubious, since, in a common law system, the law is modified by judicial opinions daily) and correct law book is absolutely, positively no substitute for a lawyer (or, at least, an experience agent with access to in-house counsel).

There's certainly an economic component--it's probably not worth hiring a lawyer at $350/hour for a work that you'll be lucky to make $1000 on. It's worth the risk to try it yourself, in other words, because even if you make a mistake, the mistake will cost you less than your legal fees.

But please, please, please don't make the mistake of thinking that a book can give you competence in this highly technical area of law.

You've been warned--let the lay opinions resume.

[This message has been edited by J (edited February 22, 2009).]


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
There's certainly no substitute for a lawyer. The question is, what's the value? Are there specific examples of writers being taken to the cleaners by reputable publishers using deliberately
dodgy contracts?

Let's not forget, reputable publishers want to make long-term relationships with their writers, relationships based upon mutual trust and respect. They won't build that with a first contract that is too heavily in the publisher's favour, or grants rights that would not normally be sold (like the copyright on characters etc that sometimes goes with comics and movies.)

Further, writing a contract takes time and lawyer's fees. Surely publishers are going to do the bulk of their business with one standard contract (or a few standard contracts that cover standard story formants and collections of rights) rather than hire a lawyer each time to screw the maximum out of the newbie writer?

SFWA has several model contracts here (scroll down), so if the contract I'm offered matches one of these, and I'm happy with it, what specific risks do I run that I need a lawyer for?

http://www.sfwa.org/contracts/

All that is about reputable publishers. There are disreputable ones too, and IIRC SFWA identifies them when possible. Seller beware.

Hiring an agent is a different issue. Agents are primarily about using their contacts and their knowledge of the markets to place the work in front of editors likely to like it, and negotiating a decent price for whatever rights are sold. Contract-wise, they or the in-house lawyer make sure the contract matches the agreement that has been negotiated.

In the internet, on-line and "stories for download" world it's somewhat different and it would be true to say I'm comfortable learning about it from books because I've dealt for several years with software distribution rights.

I believe that most if not all of what has been said so far is better than opinion ("opinion: view or judgment not necessarily based on fact" -- OED). It's fact based on informed reading and experience. If any of it is, in fact, wrong, correction would be much valued.

If reading in order to learn about complex topics doesn't work, well, I agree to differ.

[This message has been edited by TaleSpinner (edited February 23, 2009).]


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
In the law there is a creature known as a lay expert. Of course, it's not legal for a lay expert to practice law, except in pro se situations or where the represented person and court are aware of the counsel's lack of bar certification. Most reasonably intelligent writers who've done their homework, due diligence, might be regarded as lay experts on their own behalf.

I've taken courses in contract and copyright law as it pertains to me as a writer, and an editor and a researcher. I've not been called to court as a lay expert in any field, but I know where the lines of demarcation are, and when it behooves me to seek legal counsel. The fact of the matter is that now lately that rights law is in the federal jurisdiction, there's not a lot of accessible lawyers in the field ready to hand here in the hinterlands.

There are crooked lawyers, too, in the rights racket.

One important standard of law, and of special significance in contract law, is what a "reasonable" person can reasonably expect something to mean. If a contract contains language that's indecipherable legalese, it might not be valid due to the unreasonable language. Fine print legislation, in part, addresses one of the issues of unreasonable legal language. If it's unreadable, it doesn't necessarily apply and calls into question whether it's enforceable.


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
Robert Nowall
Member
Member # 2764

 - posted      Profile for Robert Nowall   Email Robert Nowall         Edit/Delete Post   Reply With Quote 
(1) If the contract is longer than the short story, don't sign it.

(2) Always have a lawyer look over a book contract.

(3) Never trust your agent's lawyer---he's working for the agent, not you.


Posts: 8728 | Registered: Aug 2005  |  IP: Logged | Report this post to a Moderator
Kathleen Dalton Woodbury
Administrator
Member # 59

 - posted      Profile for Kathleen Dalton Woodbury   Email Kathleen Dalton Woodbury         Edit/Delete Post   Reply With Quote 
The agent is supposed to be working for you, too.

But lawyers who work for publishers (and who create the publishing contracts) ARE doing everything they can to slant things in the favor of the publisher.

Something to consider with regard to lawyers is that many so-called "contracts" for short stories are actually considered "agreements," partly because they don't involve enough money to require a contract.

You still sign agreements, but I've heard that they can really drive a regular contract lawyer crazy.

If you are going to consult a lawyer about a publishing contract, try to find a lawyer who specializes in intellectual property contracts. If you can't, at least a regular lawyer can translate the legalese for you.

One last thing: sunset clauses are your friend. If, possible, get a sunset clause (which basically provides a deadline or expiration date for the publisher) added whenever there is something about the contract that you don't like, but can't get the publisher to change.

And be sure you know what your deal-breakers are.


Posts: 8541 | Registered: A Long Time Ago!  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
Extrinsic, no offense, but your last post demonstrates my point very well.

There is such a thing as a "lay expert" in the law. A lay witness becomes an "expert" when they are asked to give opinion rather than relate personal experience from their memory. Of course, since they are a layperson, they aren't permitted to give expert opinion on technical matters, but only on topics on which a reasonable layperson would be qualified to give an opinion--such as estimating how fast a car appeared to be going.

And you would never be called as an expert witness to testify on copyright or contract (or any other law), because interpreting law is the province of the court, and offering interpretations is the job of the lawyers. The only time "expert" testimony on the law is concievable is when you're dealing with the law of a foreign non-English speaking country under choice-of-law rules.

And the "reasonable person" standard applies to torts of negligence, not contract interpretation. The closest thing in contract law is the "plain meaning" standard--which may or may not apply. Contracts are read under a number of canons of interpretation, the priority and application of which depend on the contract itself and the facts surrounding the contract's formation.

And this is my point. There are a lot of concepts in the law that appear simple, or at least understandable, on their face. But in practice, even these facially understandable concepts are applied in ways that are totally counter-intuitive to the untrained, and are laden with enough exceptions and loopholes to make your head spin.

I'm not discouraging anyone from educating themselves--I'm just saying, for the reasons demonstrated so poignantly above, that you should not rely on your own understanding when there's a lot of money on the line.

And Talespinner makes a valid point--there's definitely a balance of costs and risks involved. But when things get serious, serious people hire help.


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
Narrow definitions do not serve all purposes. A lay expert witness, "meaning a person whose expertise or special competence derives from experience in a field of endeavor rather than from studies or diplomas" is another part of what a lay expert is in the law. An expert car mechanic who's called to testify on a questionable repair might be a called as a lay expert, related to a contract dispute, for example.

The "reasonable person" standard applies in criminal negligence and torts as well as in a different manner to contract law and a host of other areas. Again, it's not a narrow definition in one exclusive area of law practice.


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
Extrinsic, this is what I do for a living. I don't want to hijack the thread, so email me privately and I'll happily discuss where you're going astray.
Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
No thank you. You've chosen to parse method and denigrate rather than appreciate the message. No good can come from further discussion.

[This message has been edited by extrinsic (edited February 23, 2009).]


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
Extrinsic, I'm sorry you feel that way, and I hope there's no hard feelings. But that's another illustration of my point. What you refer to, offendedly, as "parsing method" and "denigrating" of your legal knowledge is a kind and gentle version of what would happen to assertions of knowledge in court. That's one good reason why it's important to retain trained help in the form of a lawyer (or agent with access thereto) if the economics justify it. You can know everything there is to learn from books about the law, but if you aren't trained in what lawyers can and will do with and to that knowledge, you'll end up on the short side of a long stick.

I'm not trying to demean you; you clearly know a lot about a lot. I'm just trying to warn you and others here, some of whom will almost certainly have to consider, negotiate, and execute a publishing agreement at some point, that knowledge alone isn't enough for safety in this area.


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
Kathleen Dalton Woodbury
Administrator
Member # 59

 - posted      Profile for Kathleen Dalton Woodbury   Email Kathleen Dalton Woodbury         Edit/Delete Post   Reply With Quote 
J is trying to help, not denigrate.
Posts: 8541 | Registered: A Long Time Ago!  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
My points are twofold; one that it behooves a writer to be a lay expert in as many matters as relate to the needs of the craft. What a writer needs to know about the law only extends to what is needed by any reasonably intelligent person, except in stories involving the intricate arcana of jurisprudence. Two, that a person who needs a lawyer is already in jeopardy, if not for the reason they seek counsel, then because they must consult with a lawyer in the first place.

I refuse to live as though I need an entourage of experts just to exist. Yet that's exactly how modern society has become for anyone who would raise their condition above the background of mediocrity. Just show the tippy-top of one's head and predators and opportunists start circling.


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
Robert Nowall
Member
Member # 2764

 - posted      Profile for Robert Nowall   Email Robert Nowall         Edit/Delete Post   Reply With Quote 
I'll add a sidebar off-topic thought on the matter of agents---your agent is working for himself, not you, and you must look at any deals or agreements in that light.
Posts: 8728 | Registered: Aug 2005  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
Hmm … I think of Hatrack as a place that empowers writers towards publication. I think advising us to use lawyers without clear criteria for when, and specific examples of what has happened to writers when they do not, is discouraging, for it makes the unknown appear intimidating.

I’m pleased to see that extrinsic’s and my statements on our understanding of the law as it applies to writers and publishing contracts have not, so far, been found materially inaccurate.

The question was, do writers always use a lawyer prior to signing a contract with a publisher? Let me reflect back what I've learned so far to see if I have the decision about when to hire a lawyer right (almost never, in terms of reduction of real, likely risks):

There are books on law, and on the business of writing, that explain contracts, copyright, publishing and media rights, libel and so forth. There are also models of contracts between writers and publishers, for example on the SFWA website and in some of the books on the business aspects of writing. If they come from a reputable source (recognized technical publisher, SFWA, etc), they are correct, at least on the day of publication. The rate at which they become incorrect depends on the (variable) degree of precision with which law is written, and the precedents that accumulate through judgments on disputes which clarify imprecise or contestable parts of the law.

In the print world, publishing contracts and copyright are well-defined because as concepts they’ve been around for a long time. The books and model contracts aren’t likely to go out of date any time soon. Nor will they change interpretation dramatically because of the volume of business that relies on current interpretations. Mileage varies according to national law and the degree of active enforcement. (Some governments are messing with copyright law in some countries, but it’s about how many years your work is protected—an issue if your copyright is about to expire, but for most of us this is a problem that would be nice to have.)

In the on-line world it’s more complicated because the technology supports mass violation of copyright, and because the internet is international in a way that the law is not. For the internet, new laws are being written, existing laws being modified, and case law is developing, so the books and model contracts will go out of date quickly. International co-operation varies and people often operate web-servers offshore to avoid strict national laws. That said, if you’re going to publish your story with an on-line magazine, there’s not likely to be enough money in it to pay a lawyer. Which is unfortunate because some online publications are not professional: some semi-pro or amateur agreements aren’t unambiguous, and thus may not be enforceable in law.

(Libel laws have been effective at stopping defamatory comments on websites and one will certainly need a lawyer if one is contemplating publishing potentially libellous material on the internet – not least because, as J hints, “publishing” has a very wide interpretation in law as regards the internet, more than a reasonable person might suppose.)

Here’s my proposal for way of deciding whether to hire a lawyer:

In print:

If you have sound reasons to believe you can build a relationship of mutual respect with the publisher, and if you understand the contract, no lawyer.

If you do not trust the publisher, or if the publisher is on one of those lists of predatory publishers, find another publisher.

If you do not understand the contract, compare it with a model contract from SFWA, or read a book, and insist on revision if necessary, until you understand and accept it.

If none of the above work, or if the contract is worth more than $100,000, or if you believe all publishers have a tendency to take more than their just dues from new writers, or if you don't understand the above, find a lawyer.

On-line:

There’s no money in on-line publishing, so do the same as for print aside from hiring a lawyer. Hope that everyone behaves with honour because even if the contract is a good one, enforcement may be impractical in law (expensive) and in reality (people copy online stuff illegally). Or be prepared to defend your copyright by exposing dishonourable copying in very public postings on your blog, predator website listings, etc.

On-line and in print

If you plan to write about other people in a manner that might cause them offence, or to use copyright material without the appropriate permissions, find the biggest, baddest lawyer you can afford. (Or read a very good, up-to-date book.)

Caveat emptor, etc, etc.


[This message has been edited by TaleSpinner (edited February 24, 2009).]

[This message has been edited by TaleSpinner (edited February 24, 2009).]


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
Terms of Use for Offshore Online Publishing

Whereas; the Party of the first part, hereinafter referenced as the Captain, being duly elected by the Compliment of Freebooters; being the Party of the second part, hereinafter referenced as the Crew; does accord and affirm, attesting to competence and capacity to do so, assumption of all Obligations, Requisites, Responsibilities, and Duties; notwithstanding Rights and Privileges thereof of common or extraordinary Practice and Custom and Habit.

Whereas; owing and due respect of the Station and Obligations of the Captain, the Crew is hereby ordered obedient to any and all posted, tacit, or implied Rules, Laws, and customs of general Knowledge, or at the express need of the instant or whim of the Captain; and whatsoever all that is not mandated, is, hereby, deemed prohibited. Respectively, to each Infraction, of Mandate infraction and/or of Prohibition infraction, for each and every all Infractions, the punishment shall and will be execution by hanging, keel-hauling, flogging unto death, or other such method of Discipline, or combined methods, as at the Captain's reasoned discretion will most elicit a best example of consequence for the Crew's discordance of Discipline and as worthy Performances for Onlookers.

Whereas; in the Crew persists a posture of low morale and bearing in regard to comportment of Duties assigned and otherwise necessitating Attention and Diligence, it is hereby decreed that, as was of the preceding Captain's Edict and Orders, routine floggings of the Crew are continued unabated until Morale shall and will improve.


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
May it please the Cap'n, Sir, as a crewmember of the lowest morals and an enthusiastic onlooker of Discipline whose morale is not inconsiderably enhanced by the aforementioned onlooking, may I respectfully request and beg for the addition of plank, for the walking of, to the listed list of punishments and other consequential forfeitures that shall and hereinafter will be dispensed.
Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
I haven't found an account of an actual real-life pirate who instituted walking the plank as a punishment. Stede Bonnet, aka the Gentleman Pirate, is reported to have inartfully attempted it once off Charleston before his capture and eventual execution by local authorities. Historians speculate that he did so from inspiration provided by newspaper articles sensationalizing the pirate way of life. But, yes, consider walking the plank incorporated by the wiggle clause: other method at the Captain's discretion. Stranding, as shown in movies, however, was a well-accepted and noble tradition of the pirate code, about as merciful a capital punishment as could be expected.
Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
steffenwolf
Member
Member # 8250

 - posted      Profile for steffenwolf           Edit/Delete Post   Reply With Quote 
Robert Nowall said:
"I'll add a sidebar off-topic thought on the matter of agents---your agent is working for himself, not you, and you must look at any deals or agreements in that light. "

But a typical agreement with an agent gives them a flat percentage of the money you make. With this kind of agreement, the only way for HIM to make more money is for YOU to make more money. So the more advantageous a deal is for you, the more it is to him.


Posts: 299 | Registered: Oct 2008  |  IP: Logged | Report this post to a Moderator
Robert Nowall
Member
Member # 2764

 - posted      Profile for Robert Nowall   Email Robert Nowall         Edit/Delete Post   Reply With Quote 
But an agent might go for the sure thing and a sure percentage rather than take the risk (and the time) of sending to different markets that are less sure (but pay more). Or an agent might be willing to part with rights to a work a writer might prefer to retain himself.
Posts: 8728 | Registered: Aug 2005  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
TaleSpinner,

There's much simpler way to decide:

1. If you have a reputable, experienced agent you trust (keeping Robert's warning in mind); you probably already have access to a lawyer when needed through your agent, coupled with the agent's experience in industry-standard agreements. No overwhelming need to hire your own counsel.

2. Otherwise, if the ip at issue is worth any decent dollar amount--$10,000 works as well as any other arbitrary amount, get help.

No matter what, don't dispose of, publish, post, or otherwise do anything with any sort of valuable property or right based on opinions you read in an internet forum. Get real help.

p.s. Inaccuracies in your and extrinsic's understanding of the law have not been mentioned in an effort not to hijack the thread. I'd be happy to discuss this in private email, if you like.

[This message has been edited by J (edited February 24, 2009).]

[This message has been edited by J (edited February 24, 2009).]


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
J, as a legal professional you'll understand that your advice seems self-serving. Worse, absent examples of specific risks that writers run, absent concrete examples of the benefits professional advice brings to the client (protection from vague unspecified threats doesn't count), this appears to be a business that trades on fear. The simplest way to avoid this impression, as you surely know, is to give specific examples and concrete information.

In my trade (engineering and management) consultants who trade on ignorance, who keep their clients uninformed and uneducated, are shunned. Those who share knowledge, who can make complex issues understandable, are regarded as valuable; by visibly not trading on fear, they earn respect--and fat, deserved fees. The really good consultants know that by sharing some knowledge for free, they can attract trust and sell a whole lot more.

In my experience of several industry sectors (telecom, IT, software, defence, consultancy, auditing, training) businesses understand the need for mutual trust and they do not set out to destroy it at the start of a business relationship with contracts that are cynically manipulative. Sure, one has to watch out for the odd dodgy supplier, and one must understand contract language and the products, services and rights that are traded, but it's not hard. I cannot believe that reputable publishers are any different. They aren't sharks and charlatans, nor do I see any specific examples of such reported in news, forums, anywhere--except the above mentioned predatory publishers that writers are constantly warned against.

If there are inaccuracies in the above posts, I'm sure all Hatrackers would welcome corrections. This thread meandered off topic long ago, so please don't feel guilty of hijacking it. But if it really bothers you, please start a fresh thread, so that anyone interested can follow it.

Let's not forget, also, nobody is going to use either agent or lawyer for short stories, novellas even, and we need to learn how to handle contracts for those too. (Another thread refers.)


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
TaleSpinner, I get what you're saying. My warnings aren't meant to imply that lay people can't interpret contracts--they can. But, time and time again in my practice, I see clients who enter into or even draft contracts without counsel, only to run years later smack dab into a wall of unforeseen difficulty. It's not that the client didn't understand what the contract said most of the time--it's that he didn't have the training and experience to appreciate fully the gamut of risks created by the language, or to know how to draft around those risks.

Your request for concrete advice makes sense, too. The problem with law is, the minute you start giving generic advice, the person who takes it and runs with it is the person who's situation is an exception to the rule. (Also, this thread started with a copyright question, which is a lot more complicated than contract law). In the law, a little knowledge is a very dangerous thing.

That being said, there are certainly some safe general guidelines, and some level of baseline knowledge every writer should have so as not to be taken advantage of too badly.

I don't mind putting something very basic together--something that, hopefully, no one can use to get themselves into trouble.
Give me a few days, and I'll start a new post.

[This message has been edited by J (edited February 24, 2009).]


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
dreadlord
Member
Member # 2913

 - posted      Profile for dreadlord   Email dreadlord         Edit/Delete Post   Reply With Quote 
is J going to charge us all a consultants fee?

just wondering. I havent reached the stage of publication where I should even consider a lawyer.

oh, and J, when you hear about a writer who is broke, thats me. so dont expect payment any time soon.


Posts: 240 | Registered: Oct 2005  |  IP: Logged | Report this post to a Moderator
philocinemas
Member
Member # 8108

 - posted      Profile for philocinemas   Email philocinemas         Edit/Delete Post   Reply With Quote 
I feel that J, extrinsic, and TaleSpinner all have valid points. Let me suggest that we compare this to a parallel area of contractual law: real estate

I would bet that very few of us have ever hired a third party lawyer to examine a home contract. Typically, you sit down and they show you where you should sign. Though this involves great dollar amounts and has great repercussions if dishonesty avails, most of us have not suffered any ill from lacking a third party lawyer. We have a realator, who acts as our agent and agrees to represent us for a standard fee (sometimes negotiable - depending on the talents of the agent). We also have a lawyer, who I believe is supposed to be impartial, tending the contract.

However, I say this in the midst of a collapse in the real estate market due greatly to sub-prime and adjustable rate mortgages. I'm sure those who have/had homes in default or foreclosure wished they had retained a third party lawyer for advice. Though I'm not sure if they could make suggestions regarding possible financial repercussions of stupid loans.

I believe TaleSpinner did suggest a lawyer for larger dollar amounts; I'm not sure of extrinsic's view on this. And I know I would definitely not bother for something like a short story. It seems that most publications are up front on whether they buy story rights. If I sold a novel, it seems it would be worth my while to let a lawyer examine the contract. Fortunately, I have a friend who is lawyer, so I would probably get a discount.

[This message has been edited by philocinemas (edited February 24, 2009).]


Posts: 2003 | Registered: Jul 2008  |  IP: Logged | Report this post to a Moderator
extrinsic
Member
Member # 8019

 - posted      Profile for extrinsic   Email extrinsic         Edit/Delete Post   Reply With Quote 
My position is; when legal advice is needed, I know. That knowledge comes from study and experience and the desire to husband my interests. I've had one marginally inappropriate professional experience as a result of trusting another's intentions. It resolved to my satisfaction through my efforts alone. Without mutual trust and respect, I refuse to be involved. It's just not worth the heartache and grief otherwise.

The majority of my professional dealings depend on mutual trust and professional courtesies. My income comes through nonverbal, tacit agreements to provide services in exchange for timely compensation, not even by way of a hand-shake agreement. One of my clients I've never met in person nor spoken with over the phone. Besides our very narrow professional relationship, we're complete strangers to one another. She sends me work. I do my job and send the product back. Periodically, I receive a timely payment. Nothing personal.

I expect, when, not if, I receive a publishing contract, the same level of professional conduct from the house. If the proposal doesn't appear trustworthy, then I'll veto it. Life is too short and the end too near to waste time on pointless shenanigans. I may be driven, but I'm not foolishly desperate.

Meanwhile, I've got one hundred pages remaining, out of six hundred from today's queue, to read before I sleep. Corruption is on the agenda tonight. In places high and low it never ceases.

[This message has been edited by extrinsic (edited February 25, 2009).]


Posts: 5159 | Registered: Jun 2008  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
Cool J, and your point on generic advice, when legal decisions can turn on individual circumstances and subtleties, is well taken.

The thread started off in copyright law, online, and that's a minefield, agreed (made worse if one gets into libel). Somewhere it moved into print and publishing contracts, and I believe that's an order of magnitude easier, and that the SFWA model contracts page is a good starting point.

There's another point I neglected to mention, which is that the lay expert should be aware of when they become out of their depth and should call in an expert.

I think a few examples of the kind of gross difficulties an intelligent person can get into would suffice to clarify things, perhaps, for example, selling more rights than intended due to misunderstanding the contract language relating to rights.


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
J
Member
Member # 2197

 - posted      Profile for J   Email J         Edit/Delete Post   Reply With Quote 
Can do. In addition to those examples, I hope to cover, on a broad level:

What is a contract (and associated general information)
Common boilerplate language and what it means
Clauses to watch out for
What is a copyright (and associated general information)
Licensing--what it means and what it does

Are there any areas not covered above that anyone would like to see?


Posts: 683 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
steffenwolf
Member
Member # 8250

 - posted      Profile for steffenwolf           Edit/Delete Post   Reply With Quote 
J,
That sounds like it will be a lot of useful information. I look forward to checking out that thread.

Posts: 299 | Registered: Oct 2008  |  IP: Logged | Report this post to a Moderator
TaleSpinner
Member
Member # 5638

 - posted      Profile for TaleSpinner   Email TaleSpinner         Edit/Delete Post   Reply With Quote 
J, that would be awesome, and an essential for Kathleen to add to the FAQ, methinks.

Thanks in anticipation,
Pat


Posts: 1796 | Registered: Jun 2007  |  IP: Logged | Report this post to a Moderator
aspirit
Member
Member # 7974

 - posted      Profile for aspirit   Email aspirit         Edit/Delete Post   Reply With Quote 
J, I expect your post will answer many questions.

Thank you all for your advice and comments so far.


Posts: 1139 | Registered: May 2008  |  IP: Logged | Report this post to a Moderator
   

Quick Reply
Message:

HTML is not enabled.
UBB Code™ is enabled.
UBB Code™ Images not permitted.
Instant Graemlins
   


Post New Topic  Post A Reply Close Topic   Feature Topic   Move Topic   Delete Topic next oldest topic   next newest topic
 - Printer-friendly view of this topic
Hop To:


Contact Us | Hatrack River Home Page

Copyright © 2008 Hatrack River Enterprises Inc. All rights reserved.
Reproduction in whole or in part without permission is prohibited.


Powered by Infopop Corporation
UBB.classic™ 6.7.2