Denise Gibbon, Author at Above the Dotted Line

When It Comes to Permissions, Don’t Forget to Say “Please”

January 31, 2022 by Denise Gibbon

Sqy Please — By George Cruikshank (1792-1878), public domain illustration from *Oliver Twist*, Wikimedia Commons.

As a child, one of the first rules I learned was to precede a request with “please.” To my young mind, “please” had magical powers. Even if I didn’t get what I wanted, “please” usually elicited a polite albeit firm form of “no.” I still recall my shock when I first read Oliver Twist and young Oliver, “desperate with hunger, and reckless with misery” pled for a second serving of gruel. “Please, sir,” he said, “I want some more.” His reward was a blow on the head with a very large ladle. My adolescent mind raged at the injustice of such a response to the word “please.”

Decades later, as a literary attorney, I think of the word “please” as an important word when it comes to requesting what the literary world calls “permissions.” Authors of all kinds often want to enrich their writings with segments of copyrighted materials by others—e.g., with phrases, poems, lyrics, photos, or illustrations. Be aware that if you do decide to use a third-party’s materials, you must request permission or have a good reason why you were unable to make that request.

The most legitimate excuse is that you were unable to locate the publisher (who may now be out-of-business), author (who may be deceased), or author’s estate and could find no surviving copyright claimant. You should make what the law calls a “good faith effort,” i.e., you exhausted all reasonable means to locate the copyright owner. To prove you have done so, maintain a written record of your research and any use of attorneys or agencies to trace the publisher or copyright owner.

A limited budget, lack of time, and ignorance of research tools or the licensing process do not amount to valid excuses for exploiting third-party materials without permission. Although self-publishers, in particular, claim to have adopted the role of a publisher, most have no idea that what a traditional publisher would demand of an author is what every self-publisher should demand of themselves–that they obtain written permission before using any other author’s copyrighted materials. Why? Because no legitimate publisher wants to risk an infringement suit, and use of a copyrighted work without permission amounts to infringement.

Copyright is a two-sided coin. Do unto other copyright owners as you would want them to do unto you—ask them to grant permission with the same respect you would enjoy from someone who seeks your permission to use your work. If there is a licensing fee and you can’t afford it, try to negotiate. And if that fails, then find another quote or lyric in the public domain or—disappointing as it may be–do without and substitute your own creativity.

Below, I’ve pointed out a few well-recognized paths to follow when it comes to research as well as some basic rules. Keep in mind, though, that every rule has exceptions.

First, learn basic terminology. When you request permission to use a third-party’s copyrighted materials, you are asking for “permission” or a “license” to use those materials. The permission form or license will detail the terms you and the third party agree to. The third-party who owns the copyrighted materials you would like to license is the “licensor.” You are the “licensee.” Similarly, if I request a license to use your materials, you then become a licensor and I am a licensee. There are many examples of licensing forms on legal websites and writers’ magazines and books. Read a few to get the gist of how simple or complicated a license can be.

Second, if you find materials you would like to license, the basic information you want is, of course, the author’s and publisher’s names but also the contents of a copyright notice if there is one. If the publisher has not stated when the materials were first published, the notice will provide a copyright date and the name of the copyright owner at that point in time. In books, the copyright page is usually found on the back side of the title page. If the materials are part of a film or television show, the copyright notice is often at the end of the credits. If you want to license content in a magazine article, the copyright notice for the issue may appear in the first few pages along with the name of the publisher. Typically, the issue’s date is on the cover, sometimes with an identifying number. With magazines, the publisher’s name is usually most important because they may have commissioned the work in which you’re interested and own the copyright. If they do not control the copyright, they should put you in touch with the author.

Third, two factors are particularly important when it comes to copyright notices for work published in the US.

If you read this article during 2022, and you find a copyright date to indicate the work you want to use was published in the US before January 1, 1927, the work is in the public domain and available to you without permission.
Note that every year on January 1, the public domain boundary line will advance one year. Thus, if you read this in 2023, anything published prior to January 1, 1928, will be in the public domain.
As of March 1, 1989, US copyright law no longer required authors to add copyright notices to their work. However, copyright notice was mandatory prior to that date. If you find a work that was published on or after January 1, 1927, and before March 1, 1989, and it lacks a copyright notice, it is probably in the public domain. However, because there were some exceptions to the notice requirement and important changes to copyright law during this period, do your research to be sure.
Finally, if you find work that appears to have been published after March 1, 1989, and it has no copyright notice, it is probably protected because, as mentioned above, copyright notice was no longer required as of that date. Many magazine publishers no longer include copyright notices. Most book authors, website owners, bloggers and traditional publishers do continue to use copyright notices. I encourage you to follow their lead.

Fourth, when trying to determine the current owner of a copyright, you should research the US Copyright Office files. There is a wealth of information filed or recorded by authors, estates, claimants, and publishers for many decades. You can find registration certificates identifying a work’s original copyright owner (which may be a business), the author, date of publication, sources of underlying materials, contact persons, and pertinent addresses. Additionally, the office houses recorded assignments or other documents memorializing the transfer of copyright ownership to third- parties or publishers. If you find it too challenging to perform this type of research, the Copyright Office offers research services for a fee. Here, too, there is a wrinkle. While I may have written and self-published my book and, thus, hold the copyright, I may not have registered the copyright. If so, you will not find me in the Copyright Office database or in the Library of Congress. The Library of Congress collects, among other things, published works sought by the nation’s libraries. For more information about the Library of Congress, see https://www.loc.gov/publish/cip/faqs/#eligible.

Fifth, for the most accurate and well-presented information about copyright research and copyright law, use university websites and the Copyright Office at Copyright.gov. There are several excellent university sites but two of my favorite resources are at Stanford University and Cornell University. Stanford University provides two excellent pages addressing copyright research at https://fairuse.stanford.edu/overview/copyright-research/getting-started/ and https://fairuse.stanford.edu/overview/copyright-research/searching-records/. Cornell University has a chart delineating copyright protection for unpublished and published works in the US for almost one hundred years at https://guides.library.cornell.edu/copyright/. The chart also includes works published abroad as well as sound recordings.

If your research looks as if it may lead you to feeling like Oliver Twist, i.e., “reckless with misery,” contact a writer’s organization or a publishing, intellectual property, or literary attorney. Most attorneys will not charge you for the fifteen to twenty minutes we may need to determine whether we can help and to advise what we charge. And I promise, whether or not you say “please,” none of us will hit you with a ladle.

Denise Gibbon, Esq. is a Publishing Contract Consultant and Literary Attorney at Above the Dotted Line (see www.abovethedottedline.com) and the creator of an audio-visual series for authors titled Copyright to Contract to be published in March 2022. You can contact Denise at dhgibbon@abovethedottedline.com.

Writers for Hire: How to Limit Liability When Your Author Self-Publishes

January 30, 2022 by Denise Gibbon

No writer wants to be sued. But since self-publishing has become so common, writers for hire are particularly vulnerable.

And they know it.

When Marcia Layton Turner, the executive director of the Association of Ghostwriters, interviewed me during an Association teleseminar, the most common question members posed was “how do I avoid getting dragged into a lawsuit brought against someone who has hired me to write for them?”

If you write for hire, you may call yourself a ghostwriter, collaborator, independent contractor, or garden-variety freelancer. Typically, you are paid to prepare a written work of some kind and to assign your copyright and other intellectual property interests in the content to the hiring party. The hiring party then takes your place as the legal “author” of the work you prepare. Under copyright law, the assignment must be in writing and signed by both the writer and the prospective author.

Many authors engage writers for hire, but it is the authors who intend to self-publish who should concern writers most. Though the term “self-publisher” presumes one possesses and exercises publishing skills, the reality is otherwise. Self-published authors are not likely to consult with an agent, publisher or attorney who can ring the alarm about libelous descriptions, failure to obtain permissions, obscenity, or potential intrusions on rights to privacy or publicity. Some self-published authors have unknowingly evaded a claim or lawsuit only because they never sold or distributed enough copies to bring any attention to the legal potholes in their material.

Although the writer for hire assigns their intellectual property interests to the author, the writer continues to bear risks associated with their original ownership rights. The typical write for hire contract requires you to promise, i.e., “to represent and warrant,” that what you write is truthful and accurate and that your content will not cause anyone in the world to sue the author for libel, failure to obtain permissions, obscenity, or creating content that could potentially intrude on anyone’s right to privacy or publicity. And if the author is sued because a third-party claims your promises are untrue, you also agree to compensate or “indemnify” the author for the author’s legal expenses.

Like a flight captain, the author is entitled to make all the final decisions about the content of the work—decisions that could lead to a lawsuit. No matter how influential you believe you are over the author, you are contractually merely a co-pilot. If you are a professional writer and more aware of potential legal issues associated with publishing than the author is, this lopsided relationship is as ironic as it is traditional.

So, how do you avoid or lessen your liability if the author who paid you to write is sued?

By negotiating a more equitable agreement before you sign it. This is not the answer you will want if you have been served with a complaint. In that case, there is little to do except engage a good attorney. But the future matters. As of today, consider adding the following to your own contracts or those you are offered.

Pre-publication Review. Include a provision that requires the author to pay for a pre-publication review of the work once it is substantially completed. The review can be performed by a literary or entertainment attorney or a publishing professional who is familiar with the laws that address libel, permissions, publicity, privacy and obscenity. After interviewing the author and reading the work, the reviewer determines whether there is any content that would give a third-party reason to sue the author and/or any writer who performed research and writing services for the author. The contract should entitle you to receive a copy of the reviewer’s conclusions and to be present during any consultation. You need to be as knowledgeable as the author about what parts of the work are vulnerable to a lawsuit since you may have to persuade the author to agree to the recommended revisions as well as make them.

Limits on Indemnification. If possible, limit your indemnification of the author to (a) the total sum you were paid under the contract and/or (b) a final judgment for damages based on your actual breach of your warranties instead of indemnification based on an unproven allegation.

Do Not Take Responsibility for the Author’s Mistakes. You should not be liable if the author makes a mistake that leads to a claim or lawsuit. Be sure that your warranty and indemnity provisions exclude you from responsibility for editorial revisions or additions to the work made by the author or any other entity or individual. Keep accurate records of any additions or changes the author makes to your content.

Does adding these provisions guarantee protection from a lawsuit?

No. But the inclusion of even one provision may make the difference between continuing to earn your living as a professional writer or being forced into bankruptcy—liability is that unpredictable. Obviously, writing a children’s story or how-to series of posts about knitting is less likely to keep you awake at night than describing the true-crime adventures of a controversial detective or the sexual peccadilloes of the author’s rich and famous neighbors. Still, untested family remedies may sicken some readers and outdated instructions about training wild animals may injure others.

The point is to make the author aware that if certain passages in the work create a legal minefield, the author should take responsibility for disarming the risks that are most likely to explode.

And if the author is unwilling to assume that burden? You may have two options.

First, consider purchasing professional liability insurance. If that proves unfeasible, the second option is unavoidable–politely terminate the negotiations with the author and look for a hiring party who is more amenable to sharing risk.

Your peace of mind and financial future are worth it.

For more information about the Association of Ghostwriters, see www.associationofghostwriters.com. To contact Denise Gibbon, email dhgibbon@abovethedottedline.com.

Best Selling Authors Contract with Writers for Hire – So Can You!

January 30, 2022 by Denise Gibbon

If you regularly look at the Sunday New York Times Book Review Section and the column “Combined Print and E-Book Best Sellers,” you’ll notice something that should interest you if you’re an aspiring author or writer-for-hire.

Often, up to a whopping twenty-five percent of the top twenty nonfiction books listed are written with the help of a professional writer, e.g., by John Smith with Susan Jones. The credited authors and copyright owners–those whose names immediately follow “by” on the book cover and title page–may be celebrities, famous professionals, or unknowns who have accomplished remarkable feats or have unusual stories.

Before they begin the publishing process, most of these authors may lack time, publishing industry know-how, or the writing skills that are required for publication.

Perhaps you are more like them than you realize. You, too, may have at least one good non-fiction book hovering in your imagination—maybe even a prize-winning idea–but you are either too busy to write or simply don’t consider your writing skills equal to the task of pursuing publication. And you may be right to be skeptical!

In today’s highly competitive publishing world (traditional or digital), the author must win the reader over within the first few paragraphs and show that both his content and writing style are worthy of the reader’s long-term attention.

But here’s the kicker! As an aspiring author, you don’t have to quit your day-job to write the book yourself or jump-start a writing career in order to publish. Take the hint from the New York Times best seller list–assuming you have a story worth telling, you need only be savvy enough to team up with a professional writer to produce either a fascinating proposal for an agent’s consideration or a compelling manuscript for self-publication. A team approach allows both “creators”—author and writer–to display their complementary strengths.

And that’s where a publishing consultant or literary attorney comes into play. A detailed agreement does more than just recite a price and schedule for completion. Like a good business plan, an agreement should give both author and writer-for-hire the map they need to reach their shared destination.

Do you have a production schedule for various phases of the writing process—e.g., a proposal, an outline, chapter segments and drafts?
If the two of you disagree about content or other publishing issues, how will the two of you resolve the conflict?
Will one of you need to travel in order to meet with the other or can you communicate by phone, email, and Zoom?
What costs are associated with the project and who will pay them?
Will the writer for hire accept a deposit, charge a flat fee, or share in any advance and royalties?
There is particular language that the write-for-hire contract must include to make it clear that the author will be the copyright owner—has it been included?
Will the writer share credit for the work, be a “ghost,” or only mentioned in the acknowledgements?
Most important, what happens if either party dies or is disabled?
Is there an escape clause for the writer as well as the author?

Writing “with” is a business, but there are personal considerations to keep in mind. If you’re the author, does the subject matter require that you give the writer access to private diaries, letters or emails? If so, include a provision requiring the writer to maintain your confidentiality except with regard to the passages you agree to include in your work.

Don’t ignore an inspiring concept for a book, blog or magazine article because you fear that you lack sufficient talent, skills or know-how. Stick with what you do best—telling your own or another’s personal story, describing unique views about a hobby or profession, or sharing a transformational experience–and let a professional write it down.

Test-Driving Your Final Draft – How to Make Your Work Reader Ready

April 17, 2017 by Denise Gibbon

Once I’ve tucked myself into bed for the night, I often pick up a book. Recently, the one I reached for was by a friend in New York—let’s call her Lucy. Like a horse whisperer, Lucy is a book whisperer, coaching would-be authors through the process of transforming their idea for a book into a copyrighted, edited, and attractively bound self-published work. I have met several of her author-clients in the past and they were all proud of, and pleased with, the books they had produced under Lucy’s guidance. So, it was with pleasure that I opened Lucy’s latest how-to volume about writing, curious to know what new nuggets of wisdom she might share with her readers.

I had read several pages when the text instructed me to go from Chapter Two to a sub-titled section in Chapter Six for more information about a particular topic. Because I was interested in that topic, I flipped through the first three-quarters of the book, located Chapter Six, and searched for the subtitled section. I couldn’t find it.

Hmmm? My Nancy Drew instincts were on high alert. I backtracked and looked for a table of contents, hoping it would direct me to the appropriate page. It was easy enough to find but there, too, was another surprise. Though a title for each of the eight chapters was listed, none of the titles had a corresponding chapter number—the table of contents amounted to simply a list of titles. As a result, I had to count my way down the list until I recognized the title that had been assigned to Chapter Six.

I made Lucy aware of these oversights and because she had only released a few POD copies, she was able to correct the subtitle reference–the section did exist but it had been moved to another chapter–and added chapter numbers to the table of contents.

This was an experience Lucy and I both felt should be relayed to other self-publishers, but with what advice? After all, Lucy had used an experienced editor, advice she hammers home with every client. But what we soon realized was that the editor had concentrated on grammar, spelling, paragraph structure and typos. What the editor and Lucy had both failed to do was to take the manuscript out for a test drive.

Let’s suppose you’re buying a used car. You might find the model and color of the convertible you’ve always wanted, but do the brakes work? Does the automatic transmission move smoothly through the gears? Does the odometer continue to accumulate miles? There’s only one way to find out—you’ve got to test-drive the car.

The final draft of any manuscript also benefits from a test-drive. Relevant bits of data placed throughout your book should match the map provided in your table of contents. If the table of contents says that the title of chapter three is “ABC,” go to chapter three and make sure that chapter title is “ABC.” If chapter five instructs the reader to go to chapter ten or page 125 for additional information, go to chapter ten or page 125 and verify the information is where it should be. If you are using both numbered chapters and chapter titles, do your reader a favor and include these together in the table of contents.

Just as you want your car to respond easily to every turn of the wheel, you want your reader to easily navigate your manuscript. The reader’s use of your book should not amount to a test of their patience, especially when being patient is not the subject of the book.

Even when you’re confident that anyone could successfully take your book for a spin, don’t think you’re done. Shift your manuscript into neutral and ask a second editor, your spouse or a trusted writing group who hasn’t yet read the book to take one more test-drive. Only then do you publish and let the reader take the driver’s seat.

Seven Ways to Find a Literary Attorney

August 25, 2015 by Denise Gibbon

Finding an attorney when you need to prepare or review a writing or publishing contract is not always easy, especially if you live and work outside most major cities. Often, it isn’t that there are no literary attorneys in a particular state, but that they practice publishing or literary law under other names.

Keep in mind that an attorney who reviews or prepares writing and publishing related contracts might not include the word “literary” in the description of their law practice. Attorneys who handle literary matters include those whose advertised expertise might be described as business law, contracts, trademark and copyright as well as entertainment, publishing or intellectual property.

So how do you find them?

First, decide what state to search in. If your agent or publisher is located in Missouri and you live in Oklahoma, you might want to consider retaining a Missouri attorney.

Second, if you know other writers who live or work in that state, ask them for a referral.

Third, do some online research under the practice categories I mentioned above—most attorneys have an online presence.

Fourth, contact the state bar association in the relevant state. Most bar associations maintain lists of attorneys under their respective practice areas. Many also have panels of attorneys in particular practice areas who will review the contract either free of charge, i.e., pro bono, or for a reduced fee.

Be aware, though, that attorneys who offer to work for nothing sometimes do so because they are looking for more experience in that subject area. Thus, be cautious but also appreciative. Even an attorney who has little contract experience is going to know more about contracts than the average author and should still be of value to you.

Fifth, contact a law school in the state and ask an intellectual property or contracts professor on the faculty to identify local attorneys who handle literary matters.

Sixth, if you’re not ready to retain an attorney yet, pay attention to those who are quoted about copyright and publishing issues on TV, the radio, in print and online news articles. Jot down their names. They might not be located in the preferred state but they might know others who are.

Seventh, contact both local, state and national writers’ organizations.

The Authors Guild is one such national organization. They maintain a referral list of attorneys (including me!) from various states. Located in New York City, you can review their website at https://www.authorsguild.net or phone (212)563-5904.