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Sample chapter from Literary Law Guide for Authors: Copyright, Trademark, and Contracts Plain Language (March 2003) by Tonya Marie Evans and Susan Borden Evans (with foreword by Dan Poynter).

Chapter 1

From Writer to Literary Entrepreneur

We writers, like other artists and creative people, are notorious for getting caught up in the process of creating, often at the expense of fully comprehending and appreciating the business side of writing. We want to create the next great work of fiction, the most referred to reference guide, the most profound poem, the most telling memoir, the wittiest article or short story or essay. To the writer, mastering the craft of writing in order to complete the manuscript and publish the work is often the sole objective.

These goals, quite obviously, are critical because if we do not nurture and attend to the work during its creation, there is little reason to engage in the process at all. Because of our absorption in the writing, however, little attention is given to the potential legalities we authors face before, during, and after the creative process.

Think for a moment about the countless hours you have already spent (and continue to spend) writing, typing, editing, reading, and critiquing - and writing, typing, editing, reading, and critiquing again. You have undoubtedly attended dozens of writers' conferences; perhaps you've taken writing courses and perused innumerable how-to books on writing, editing, style, and publishing. You have poured over the comments written by family and friends after you've circulated your manuscript for the umpteenth time. And there is no doubt that you have done all of these things with the hope of creating the perfect manuscript, of completing your life-long dream to publish your work.

While you were hunched over your computer or desk writing the next great literary work, did you ever stop to consider the legal implications, rights, and obligations that may exist because of the words you wrote?

When you completed your first novel, poem, or essay, did you stand guard over the stack of pages or the diskette that held your life's passion, forbidding anyone to see your manuscript for fear that they might steal your brilliant ideas? Or worse, did you fall victim to the myth that if you mailed your manuscript to yourself, your copyright interests were somehow protected?

Have you ever mentioned the name of a famous (or not-so-famous but just as real) person in your writing and wondered, if only for a moment, whether it was illegal to do so?

Do you think you should patent the name of your company, trademark your book, and copyright your invention? In other words, are you confused about which term correctly applies to which type of intellectual property and how the three types can, in fact, interrelate under certain circumstances?

Do you hope to sign a publishing contract but lack the knowledge to discuss the basic terms, rights, and obligations with your legal representative, publisher, or agent?

If the answer to any of these questions is yes, then you are reading the right book. This guide gives you the facts about the nature of copyright and trademark, how to protect your intellectual property and other rights, and how to avoid the illegal use of intellectual property belonging to others.

In short, the Literary Law Guide for Authors gives you the information about your legal rights and potential pitfalls in plain language, and provides a comprehensive reference list of other resources. Within these pages you will find real-life examples and illustrations for easy application. In plain language, we present the basic copyright and trademark laws as of the date of publication, basic contract terms, and things to consider before signing on the dotted line. Also, we provide important and necessary forms in this book and on the companion CD. Once you have digested the information here, contact an attorney who specializes in publishing law or intellectual property to see how the general principles we explain may apply to your particular situation. This last bit of advice is most important. Do not use this guide in place of legal counsel by a lawyer knowledgeable in publishing law and intellectual property.

The Name Game: Copyright, Trademark, or Patent?

No one word is more misused or more misunderstood by writers than the word "copyright." This single word creates such confusion and lends itself to so much misinformation because rumors, assumptions, and complicated changes in the law make it difficult for writers to separate fact from fiction. But because copyright consists of such a valuable bundle of rights, it is imperative that writers fully comprehend the nature of copyright and the process by which it is protected.

Writers are not the only ones confused by the word "copyright." More than a few business-savvy agents, publishers, and even attorneys, who are in the business of negotiating rights, have a woefully inadequate understanding of the nature of copyright. This is particularly troublesome because writers trust these industry professionals to protect their interests; the explanation that "it's always done this way" is simply not good enough when valuable rights are at stake. So, for you to successfully protect your copyrights and enjoy lucrative financial benefits from successful negotiations to license and sell your rights, you must first understand for yourself how copyright is created and protected.

What you don't know about intellectual property ownership can jeopardize your rights and potentially expose you to legal liability. So let's take a closer look at the differences among the various types of intellectual property.

Copyright: A copyright protects an author's original artistic or literary work, whether published or unpublished. Under copyright law, the term "author" has a special meaning: the creator of an original literary or artistic work. Thus, the word "author" includes not only writers but photographers, singers, painters, sculptors - anyone who creates a literary or artistic work. Examples of literary and artistic works include manuscripts, book covers, song lyrics, sheet music, musical scores, paintings, sketches, sound recordings (music), films, and photographs. And those lists are not all-inclusive.

Trademark: A trademark protects a word, phrase, symbol, or device - the mark - used in business (referred to in the law as commerce) to identify and distinguish one product from another. For example, Striver's Row® is a registered trademark for a series of fiction and nonfiction books on a variety of topics.

Service Mark: A service mark protects a word, phrase, symbol, or device - again, the mark - used in business to identify and distinguish one service from another. For example, e-News Me!SM is a hypothetical mark referring to the service of providing newsletters, literary services, and seminars.

Patent: The patent is probably the least used intellectual property in the publishing industry. A patent protects an invention by granting the inventor the right to exclude others from producing or using the inventor's discovery or invention for a specific period of time. Some examples of patentable inventions include the talking book, an e-book reader, a typewriter, and an Internet-based customer referral system, such as that used by Amazon.com.

In some instances, patent, copyright, and trademark protection are all available for a single product. For example:

ABC Company has developed a unique method for attaching CDs to the inside back cover of its books; the technique is an advance in the industry. ABC can seek a patent for this novel invention. A copyright exists in the songs on the CD and in the book itself, and those copyrights can be registered. ABC can also seek to register a trademark for this unique book-CD combination, which the company will market as MUSIQUEBOOK™.

An Overview of Literary Law Questions

Authors are, by nature, an inquisitive bunch. Over the years they have asked us many questions about writing and the law. We answer the most important ones in depth in this book. Here's a brief rundown of what you will learn.

What can and cannot be copyrighted? Generally, copyright protects all original writing: letters, e-mail, poetry, fiction, nonfiction, and songs. Book titles cannot be copyrighted. Ideas cannot be copyrighted. As noted earlier, copyright also protects other kinds of creative work, such as photographs, CDs, recordings of written works, musical scores, movies, sculptures, artwork, and even architecture. For more information, see Chapters 2 and 3.

What do you have to do to copyright your work? If you have created an original work in some tangible form - in writing or on film or tape or canvas, for example - then you don't have to do anything. You automatically own your copyright. But you should register it for further protection. For more information, see Chapter 2.

How much can you quote without permission? Contrary to popular belief, there is no set number of words you can use under the fair use doctrine. A related question is whether an author needs permission to quote from phone calls, in-person interviews, e-mail, letters, the newspaper, a TV commercial, or a company slogan. The answer will not be satisfying because it is a lawyerly one: it depends. These ever popular questions are dealt with in Chapter 4.

Another often asked question is whether you can use a picture you took of someone else in any way you choose. This question involves balancing the copyright interest in the photograph with the legal concept known as right of publicity. Although the photographer usually owns the copyright in the picture, the person captured in the picture holds a competing interest: the right of publicity. This gives a person the exclusive right to use his or her name, likeness, or other aspect of his or her persona, and the right to prevent others from using those aspects without authorization. For more details, see Chapter 6. Similarly, the photographer may even be prohibited from making and distributing copies of a picture that captures a painting, sculpture, or other work of art if that work is otherwise protected by copyright (see Chapter 4).

Another topic of great concern to writers is writing about real people and real businesses or organizations. Do the same rules apply when you mention your Aunt Tilly as when you mention Oprah? Is the rule the same for writing about the mom-and-pop store on the corner as for McDonald's®? Do the rules change if you say positive things as opposed to negative (but true) things? These questions involve the rights of publicity and privacy and are explored in Chapter 6.

Writers also ask about trademarks and service marks. A common question is: When should the ™ symbol be used, and when is it proper to use the ® symbol? As soon as you have a mark you want to claim trademark rights in, you can use the ™ symbol; you don't need permission to do that. But the ® symbol can be used only after a mark is registered. Authors also want to know about the benefits of trademark registration and whether they can trademark a pen name, character, domain name, or book title. Generally speaking, you cannot trademark a pen name or the title of a single book. But you may be able to register the title of a series of books (e.g., Chicken Soup for the Soul®). For characters, trademark protection depends on whether they are associated with the sale of goods (e.g., Mickey Mouse®). You can also register a domain name if it identifies goods or a service (e.g., Amazon.com®). For more information about these questions and to learn about the difference between common law trademarks, state registered trademarks, and federally registered trademarks, see Chapter 7.

Another topic frequently discussed by authors is that of contract negotiations. Specifically, authors ask whether the terms are negotiable. The answer is that despite the commonly held belief perpetuated in the industry, everything is negotiable and should be discussed before you sign on the dotted line. For more information about contracts as well as a discussion of the most important terms and items to consider, see Chapters 12 through 14.

With all of that said, welcome to the complex and often confusing world of literary law. Our goal is to simplify it for you and to help you have a better understanding of your legal rights and responsibilities as a Literary Entrepreneur.

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