Saturday, December 13, 2008

GumboWriters Interview with Publishing Attorney Daniel Steven - Part 3

Jeff Rivera: And if I do I mean I was told that there is I a thing called like a local trademark or something that you can get at the local county clerks office with that…

Daniel Steven:No, well they are state trademarks but the same rule apply, you cannot trademark something unless you can prove that it has been used in commerce and it has enough currencies of the people identify the book just with that title. For instance, Star Wars. Star Wars is a trademark name. You cannot publish a book called Star Wars but look at it, that is because it became such a titanic hit, alright. You have to do that first and if you did have a state trademark, it will only be good for that state anyway.

Jeff Rivera: So, does this mean if I am a writer and I am paranoid, do I need to copyright every single draft of my book?

Daniel Steven:If you are paranoid, you mean register. It is to copyright but remember, automatically copyright it. It is just a matter of proof after that. If you feel like paying a lot of money for registration fees, by all means but otherwise, it is not necessary until the book is published. Your editor and agent are not going to steal your book. How long, if they copy it and reproduce it, how long will they be in business if they started stealing their clients' stuff and publishing it as their own. It does not happen and until the book is published, who will see your manuscript except your publishing house or your agent and they are not going to steal.

Jeff Rivera: Right. Well, a lot of people will sometimes and by the way, you know I am asking these ridiculous questions because these are things that I hear all the time.

Daniel Steven:I know and I have heard them many times and that is why I wish I am trying to be as vehement as I can because it is such an illusion.

Jeff Rivera: Right. I am so glad that we talked a little bit about the importance of copyright bill but with people putting a lot of stuff on my like[13:09 worries on my ebooks in order to build an audience and what not and they worry that someone is going to that their idea and then run with it. I mean that is why I asked.

Daniel Steven:Yes, you can. If you are going to put something online then you are publishing it are you not. So it might be worthwhile to register. Remember I said you do not have to register until you publish but that is publication. So, yes you certainly might want to register it at the time you post it online. Now, you do not have to, if you are publishing, there is another website material, it is a whole lot of different issue. Basically, we advice clients with websites to file copyright registrations four times a year, every quarter because basically you can file, remember what I said before about three months of publication, within three months?

You do not want to have, because website changes everyday. You do not want to be registering everyday for every change. So what you do is you take a snapshot of the website as it exists four times a year and that, as long as you, the infringement was within three months of that last snapshot, you are going to be entitled to attorney's fees and statutory damages, alright. That is only for the paranoid. Typically what happens if someone rips of your website is it is not a publisher, a legitimate publisher or someone of that sort. They do not do that. They do not want to get sued. They are not in that business. It is going to be some schmuck who is just stealing your work and you send them a Cease and Desist, you are not going to file a suit against them because there is no money to be gotten. Okay, let us be realistic. You send them Cease and Desist and if that does not work, well at the same time if they post their stuff online then you use the DMCA, the takedown notice. You go to their ISP and they will take them down.

Jeff Rivera: What is it called?

Daniel Steven:It is called the DMCA, Digital Millennium Copyright Act. DMCA has a procedure called the takedown procedure. Every website is required to post the name of what is called the designated agent on the website and if you feel that website has or is infringing on your material, you send a notice to the designated agent and there is a procedure that the website then has to follow or you can get them the ISP to take them down. This is a whole another discussion but the point is, and you can look at, go to the or just Google DMCA and copyright infringement and you will get it all.

Jeff Rivera: And that is D as in dog, M as in Mary, C as in cat, A as in apple.

Daniel Steven:It is also in the book Street Smart Writer that I coauthored with Jenna Glatzer with all the information about how you do that.

Jeff Rivera: Street Smart Writer, okay and you can get that…

Daniel Steven:Street Smart Writer and you can get it on Amazon, anywhere. It is a book about publishing scams and includes information about copyright infringement and so forth.

Jeff Rivera: Well let me ask you one more question about protecting your work. What if I am an independent publisher and I am also an artist and I have created great cover book design. Can I copyright that at the same process?

Daniel Steven:Absolutely. Copyright applies to not only writing but to music of course and to art and even to architecture. So, same thing but there is just a different form you have to use; for text your work you used it was called a Form TX. For music you use Form PA, for performing arts and so on. It is all on the website and it is all meant to be self service. You can do it all yourself. You can hire a lawyer to do it for you but it is silly.

Jeff Rivera: Right.

Daniel Steven:Just go to the website and you do it; but absolutely what you will want to do if you are a self publisher, what you would want to do is file two forms or maybe more, one would be the TX forms the text of your book and one would be a PA for the graphic artist. And if someone stole your work, you would have the right to sue them and get an attorney's fee and so forth but again, it is very rarely is worth doing against anyone other than a depocket[17:53].

Jeff Rivera: Right.

Daniel Steven:Because what are they going to do.

Jeff Rivera: Right. I think you bring up a very valid point because I think that a lot of writers are spending so much of their energy worrying about these people stealing their work. They are not writing and they are not doing the other things [18:10] unless if they are in order to get.

Daniel Steven:People have such a high value of themselves. What makes them think their work is going to be stolen in the first place? I mean it is absurd. If your work is that great, it will sell and if someone steals it, you will sue them but to worry about it before it is even publish before you even sold it, again it is just people in the publishing industry like any other industry they are professionals. They do not go around and ripping you off. Now there is a slightly different aspect of this for screenwriters as you have mentioned, because ideas cannot be copyrightedeither. You could go in and pitch a great idea for a screenplay, and because it is not copyrighted, there is nothing that really would prevent that producer or whoever it is saying, "Hey, what a great idea for a film. Let's just do it," and cut you out. They would hire someone else to do a script on that idea. You cannot prevent that and because you cannot prevent that and because it is so easy to sue someone for saying, "Hey, you stole my idea," as you know, unless you have an agent, no Hollywood production house or studio will listen to any idea from you unless you first sign a waiver.

So, it becomes a nonissue. In order to get your idea looked at without an agent, you are going to have to sign a waiver saying you will not sue them. So, how do you protect yourself? Well, if you have a really good idea, you do not have an agent then what you can do is you want to go and pitch something to a story editor saying, "Will you sign an NDA?" a Non Disclosure Agreement simply saying. They are not saying they will not use your idea. They are saying they will not disclose your idea because remember you cannot steal an idea. Ideas cannot be copyrighted but you can sue them for violating a confidentiality agreement. So, that is the other side but again as you know it is very tough to get a teleplay or screenplay looked at by anyone who could produce it unless you have an agent.

Jeff Rivera: Right. Well speaking of agent, let me ask you this. What if someone is in a contract with an agent and it is just a total nightmare, how in the hell do they get out of this contract?

Daniel Steven:Well first you have to look at the contract, the literary agency agreement. What does that say? There should be literary agency agreement. Any reputable agent should do that. If they are a member of AAR they have to do it. AAR is Association of Author Representatives. They are trade association for agents. You have to have sold I think 7 books in order to become a member. The great majority of reputable agents are members of AAR . However, there are some very good agents who are not, simply because they do not need to be and they will say, "Screw that I do not pay any dues. I am a very successful guy. " But generally those people also have literary agency agreements and the agreement would say what are the terms under which you can end the contract. It will either be a term of years, then after certain of period of time there will be a 30 days notice or whatever. A lot of this stuff by the way is on my website, go to the article and you can see a lot the stuff that I am talking about. It is all there in little articles.

Jeff Rivera:


Jeff Rivera: Okay. So what if I have a writing partner, I mean do I need a contract..?

Daniel Steven:Yes.

Jeff Rivera: Even if it is like my sister or something?

Daniel Steven:Absolutely. I mean you should always have a collaboration agreement and you can get one from a foreign book, you can have a lawyer do it obviously I think it is better to have lawyer to do it but some people just do not want to spend their money; but the key thing on the collaboration agreement is it sets forth what ownership there is, typically joint ownership and the copyright or not and what percentage of royalties are going to go whom. In order words, let us say you are collaborating with a graphic artist who is also going to write some text. You might say you are going to get 35%; I will get 65% of the royalties. You put that in writing and that is how you will present it to the publisher and they will then split it up that way but even more importantly what happens if one of you later dies or becomes disabled? Will it go to your, do you want the other person to have full ownership or do you want the joint ownership or whatever percentage of joint ownership to go to your heirs? What happens if the publisher wants a revised edition in the future and what if he does not want to work on the revise edition? These are all things which should be covered in the collaboration agreement.

Jeff Rivera: And how to get out of it if it is a nightmare situation.

Daniel Steven:Right. Well, once you have written a book, there is no way about[23:29] it. I mean there is ownership and then you should typically is that one of you can buy out the other but those are, you can also have provisions if before the manuscript is completed if one party leaves, you can have provisions there and because typically you say, "Well, I still want something for my time up to that point."

Jeff Rivera: Well, let me ask you this because one writer asked me, they have signed a contract let us say it was a three-book contract and they fulfilled the third book and then they have the editors said, "We have made a verbal agreement to do a fourth book," but there is nothing in writing and the situation turned out to be totally a nightmare. They want to get the hell out of a situation like, does the verbal contract still stand and can they get out of it and how does it work?

Daniel Steven:The verbal contract is worth the paper it is written on.

Jeff Rivera: Okay.

Daniel Steven:It is ridiculous. I cannot, no, any publisher who tries to enforce that is out of luck. Yes, you could, it is not going to happen. First of all, you cannot force someone to write a book for you and secondly, if you do write a book and you cannot have an assignment of copyright, an exclusive assignment unless it is in writing that is in copyright act. So, that is ridiculous I mean I would tell the publisher to take a hike.

Jeff Rivera: Right. So if that email is back and forth indicating, but there is no written contract…

Daniel Steven:Well, you did not say email. That is different.

Jeff Rivera: Well, okay.

Daniel Steven:That is not verbal. You can have a contract; it is greatly dependent upon state law. Most states however will allow you to prove a contract by showing offer in acceptance in writing and emails are now accepted in that way. So if I send an email to you, I will buy your car for $1000, okay and you send me email back, sold. That is a contract.

Jeff Rivera: Yes.

Daniel Steven:I mean I can prove it. I got emails.

Jeff Rivera: Right.

Daniel Steven:If it was verbal, I would say, "Hey, he never said that," and there is no way, it is one word against the other.

Jeff Rivera: So can somebody record somebody legally in standing court or like if someone, if I was recording a conversation and I did not tell you and you said something naughty and I wanted to sue you, could I bring that?

Daniel Steven:No, well in Maryland you could not do that because it is against the law to record someone without their permission. So you would be in violation of the criminal law and so you probably you would not want to put that out.

Jeff Rivera: Because then you could get prosecuted.

Daniel Steven:Yes.

Jeff Rivera: Right, I just have two more questions for you because I know your time is valuable. I wanted to ask you about celebrities. Suppose I wanted to get celebrity testimonials or I want a celebrity to write a passage in my book or something like that, do I need a release form..?

Daniel Steven:Need what, I am sorry?

Jeff Rivera: Some type of a release form from them to say, "Yes, you can definitely go ahead and run my testimonial or you can go ahead and run my.."?

Daniel Steven:Well, you are going to have something in writing from them anyway and as part of that, you do not have to perform a release. Typically, you are simply to say, "Will you blurb me?" and they will give you something in writing and the mere fact that they give you something in writing addressed to you is obvious I mean you might want some celebrities, most of them, if they are real celebrities you are not going to be dealing with them anyway. You are going to be dealing with their manager or agent and they will parse it out very carefully. They will say, "Yes, we will give, we will allow you to put this on your book but in no other place," and they will all that for you, they will make it quite clear. And if they are not a celebrity, I mean but just someone that you want to blurb you, you just be very careful when you confirm in writing, "Thank you for agreeing to say xyz about my book which will be used only in this following way."

Jeff Rivera: Right.

Daniel Steven:And if you say, I want to use, if you want to use in on your website as well as on the book then you say that.

Jeff Rivera: Okay. The last question I have is what if I am worried, I have gotten a book deal or what not and I am worried that something is going to happen to me like how do I make sure that the royalties or whatever go to my family?

Daniel Steven:Well if you signed the deal already then automatically it will go to your estate; and if you have a will that will determine it, but if you do not a will, it will go by the laws of intestacy of your estate which means it will go to your nearest relatives. If you have not yet signed a contract then puff, it is gone.

Jeff Rivera: Right.

Daniel Steven:So but if you take a look at your contract, any typical publishing agreement like you have had, you will see language in there usually it is at the end that this agreement show also go to the survivors and assigns of the parties and that is you. So if something happens to you, the contracts it says right in there that it goes to your heirs or your survivors.

Jeff Rivera: Okay so if someone wants to…sorry, go ahead.

Daniel Steven:Plus your copyright. Copyright also if something that goes to your estate for the period of time that it exists. Copyright right now for not a work for hire exists for your life plus 70 years. What happens after your life? You die and there is still another 70 years of copyright, correct?

Jeff Rivera: Right.

Daniel Steven:Who owns that copyright? Well, if you have not said in your will, then it would go to your spouse, if you do not have a spouse, it would go to your children and then if you do not have children, it would go to your next of kin and they would own that copyright until the 70 years are up.

Jeff Rivera: Okay.

Daniel Steven:Obviously there are not many books that get valuable for 70 years.

Jeff Rivera: Right. Well, great. Then how do people get a hold of you if they want to ask you questions, get your services, that sort of thing, what is the best way..?

Daniel Steven:Well go to my website,

Jeff Rivera: Okay.

Daniel Steven:Yes. That has a mechanism. Look under the contact information.

Jeff Rivera: Great. Well, Daniel thank you so much for this and what I was going to do actually, I think it will be kind of cool; I will put this on my blog and I might even include like a question or two, and if there are few kind of writers and newsletters and stuff like that and I can put down like, can I ask Daniel, ask Attorney Daniel kind of column type of thing or something and then with all your contact information, that would be a great way to kind of bring them over to your site to and what not.

Daniel Steven:Well, yes except I do not really want to answer questions.

Jeff Rivera: Okay.

Daniel Steven:I do not have time for that.

Jeff Rivera: Well not questions but on the terms of your services.

Daniel Steven:Yes, that is fine. Right and I already write a monthly column for the Mystery Writers of America which is a Q&A and so that already takes a lot of my time. One of the other things that you can put in my credential is I am Chairman of the Contracts and Grievances Committee of the Mystery Writers of America, Inc.

Jeff Rivera: Okay.

Daniel Steven:So I see a lot obviously of what is going on in the contract world with problems with authors because Mystery Writers is a very large group of the active members are all or some of the most prominent thriller mystery writers in the country.

Jeff Rivera: Thanks for the interview, Daniel!