Readers send me the most interesting questions, many of which I need to sit back and consider. I enjoy these questions and want to share them. I figure many writers have similar questions.
Here are some of my favorites:
Question: I’ve been enjoying your blog and I have a question. I have set my mystery novel in Ithaca, NY and used real businesses such as restaurants for the settings. Do I need the owners’ permission? I have a murder take place at one restaurant.
Answer: Whether you need permission is a question of degree. If a business is mentioned in passing, then permission isn’t required (but it never hurts). However, some attorneys recommend you refrain from using a trademark, such as a business name, in a disparaging way.
I would definitely get permission before you place a murder in a restaurant. It could be seen as a false statement of fact and potentially defamatory. The restaurant might be happy to give permission and enjoy the exposure. Then again, they may take offense.
If they won’t give permission, then I suggest you make up a name.
Question: At a recent conference I asked a workshop leader (also an attorney) this question and was shocked at the answer.
I am writing a memoir about a love affair I had when I was young, and it quotes liberally from letters written to me by my lover. The workshop leader said these letters absolutely don’t belong to me and that I must have permission to quote them. I thought that things given to me become my property.
Answer: Sadly, the attorney is correct. On an emotional level, I agree with you that letters are gifts, but the law takes a different view.
The physical letters belong to you, but your ownership of the letters does not give you the right to publish the words in the letter. The copyright to the words, and the exclusive right to publish those words, belong to the writer, your ex-lover.
This question has been the source of some legal battles, typically when the letter writer or letter user is famous and the publication of the letters generates some money.
Question: I’m going to be publishing my first novel this May and something occurred to me. In one scene, a character tells another character a joke. I wrote this joke specifically for the book. However, once I publish, I’m concerned someone might say that they’d written this joke, or one very similar, and claim some sort of infringement. Is there anything I can do to help prove that I wrote the joke on my own for the book? Kind of an odd question, hope you can help.
Answer: It’s not an odd question at all. It’s not uncommon for people to create similar writings, but independently. Same with photos. Here’s an interesting post about photos.
You do not have to prove that you wrote the joke independently. The other side has the burden of proving that you copied their work. And proving copyright infringement of something like a joke would be a tough case for them to win.
First, in order for someone to win an infringement action, they would have to demonstrate that the original materials were protected by copyright. Short jokes are not typically protected, particularly if they are obvious.
Next, they would have to show you had access to the material and copied it. Copying can be shown if there is so much similarity that independent creation seems unlikely (as decided by a jury). The classic example is when typos from the original work also show up in the allegedly copied work.
Proving infringement is complex and complicated, as this piece about a case involving Six Feet Under discusses.
Question: Hello Helen, I listened to your podcast at The Creative Penn and I just have one question that bugs me to no end. I’m a new author and was just wondering do I really have to wait until I get my certificate from the government of the copyright in order to start selling my book? The wait just kills me when I just want to get my book out for people to read! Please help me!
Answer: First, I am assuming you are in the U.S. If you’re not, let me know, but I suspect the answer will be the same.
You do not have to wait at all. You can publish and release your book BEFORE you register your copyright. But it’s best to register your copyright within three months following the release of your book; you’ll have more remedies in the event someone infringes on your work.
Question: I just finished reading a memoir and was surprised to find so many names mentioned under least than desirable circumstances. In one description of a boyfriend, giving specifics that if not made up would identify him, she calls him stupid and tells how he rifled his friends wallets for cash. I find that hard to understand that if this is true, how can she get away with publishing it without getting sued? Or do the big publishers have lawyers who can vet the specifics?
Answer: Keep in mind that nothing is completely safe until a judge decides it is. But generally, you may name names in your memoir or other book. Defamation is an UNTRUE statement of FACTS which tends to harm an identifiable and living person’s REPUTATION, not ego or feelings. When it comes to factual information, stick to the truth. The more proof you have, the better.
If you will be disclosing private information, then research whether that information has been made public in court documents, news reports, even family gossip. If the information has been made public, then there is less risk someone could claim (successfully, at least) that you disclosed private facts.
The false statement or disclosed private information needs to be more than embarrassing. Generally, it needs to imply criminal, deviant, or professionally incompetent conduct. Portraying someone as a jerk of a boyfriend, or an insulting mother-in-law, or an obnoxious boss is not likely to be considered defamation or an invasion of privacy.
The issues get complicated, and there is no clear line between safe and defamatory. Publishers do put their manuscripts through legal review, particularly if there is anything in the work that makes them nervous. They also carry media risk insurance.
If your manuscript has some risky material, it’s worth the investment to have those portions reviewed by an experienced publishing attorney.
Their works have spawned countless remakes and retellings. Stately manor houses have been transformed into zombies hideouts. Characters have been transported to New York tenements. Star Trek’s Klingons recite Hamlet’s soliloquies.
And since Shakespeare and Austen’s works are in the public domain, all of these remakes are legal.
Books, settings, characters, and stories in the public domain are a rich source of material for writers, as they should be. When a classic tale is retold, writers explore timeless yearnings and connect us to our past. West Side Story remains as tragic as Romeo and Juliet, and A Thousand Acres by Jane Smiley adds modern tensions to King Lear.
On the legal side, however, many writers are tentative about basing their stories on public domain works. Will they own any copyright in the work or will it remain in the public domain? The answer is a little of both.
What is in the Public Domain?
There are four major categories of public domain works.
- Works that are not copyrightable. Ideas and concepts alone are not protected by copyright and are in the public domain. This includes stock characters, such as the handsome but dull hero and the tough-talking villain, and generic settings, such as gritty streets or deep space expanses.
- Works created by U.S. government employees, for example, the famous Depression era photos taken by Dorothea Lang when she was employed by the WPA.
- Works donated to the public domain through a Creative Commons license.
- Works where the copyright has expired.
As of today:
- The copyright on works first published in the United States before January 1, 1923 has expired, and writers may use these works without permission.
- Thanks to Congress passing laws to favor Disney and other corporate copyright owners, the copyright on works published on and after January 1, 1923 won’t start expiring until 2019.
- For works published after 1977, the copyright won’t expire until 70 years after the author’s death.
- For works published between 1923 and 1977, the expiration depends on whether a copyright notice was properly placed, whether the copyright was registered, and whether the registration was renewed. You may need a lawyer or professional copyright researcher to sort it out. The duration of copyrights for works created in different countries may be different.
For this article, I am focusing on works with expired copyrights, such as Jane Austen’s Pride and Prejudice, published in 1813.
How Many Times Can Pride and Prejudice be Retold?
Every year, publishers release dozens of books based on the story of Elizabeth Bennett, Mr. Darcy, Lady Jane and Charles Bingley. At least three films are based on the novel, not to mention a several television series. How does this work? Don’t the copyright claims conflict?
They don’t because each creator has a copyright interest only in the new material created by that creator, the rest remains in the public domain. When Helen Fielding transformed Austen’s work into Bridget Jones Diary, her new material was protected by copyright, not the underlying story lifted from Austen’s novel. When filmmakers release yet another Midsummer Night’s Dream, they own the copyright to the dialogue, costumes, sets, and all other new creations, not Shakespeare’s words.
Whether the new work lifts entire sections without change, or alters every word of the original, no one may claim an exclusive right to use Shakespeare’s or Austin’s words, characters, names, settings, or the storyline. No one can revive the copyright on Mr. Darcy or Lady Jane by casting them in a new light. The same with Dracula, King Arthur, Huckleberry Finn, and the Cheshire Cat.
A perfect example is Seth Grahame-Smith’s mash-up novel, Pride and Prejudice and Zombies. The author transported the characters, setting and storyline to an alternate world where zombies routinely devour proper ladies and gentlemen out for afternoon strolls. The book hit the New York Times Bestseller’s List and has spun off video games. A film version is in the works.
But no matter how money is invested in and made from Pride and Prejudice and Zombies, Grahame-Smith has no copyright interest in any of Austen’s original work. Writers are free to take her characters to another time or universe. And they do.
Writers should not discount the potential of using public domain works for inspiration, characters, story lines and structure. The market for remakes seems insatiable.
How to Use Public Domain Work
Go back to the source. If you are going to base a story on a public domain work, go back to original work if possible. Don’t base your story on another writer’s retelling or the movie version, since those are likely to mix copyrighted and public domain material. If you are using a translation, do not use the specific language of the translation (which may be covered by copyright) and stick to the larger components such as the story line and characters. Similarly, don’t use any illustrations, commentary and annotations added since 1922, since those may also be protected by copyright.
Don’t be fooled by bogus copyright notices. If you pick up a print copy of Pride and Prejudice, you are likely to see a copyright notice in the name of the publisher together with the usual statement “No part of this publication may be reproduced…” Many of these notices are bogus; the publisher cannot claim any copyright on the public domain work. It’s illegal, although no one is enforcing those laws.
A publisher has a copyright claim only in new material, such as an introduction, illustration, or commentary. To be protected by copyright, the added material must have some level of originality. Merely changing English spelling to American spelling does not create a new copyright claim. Digitizing a printed book is not a new copyrightable work.
The proper copyright notice limits the claim to the new material. For example:
- Translation © year and name of translator;
- Illustrations © year and name of illustrator;
- Introduction © year and name of writer of introduction.
Use the proper copyright notice on your own work. Your copyright notice should claim rights only in your new work. There is no required form, but consider something along these lines.
© year and your name. This novel is based on The Iliad, and no copyright is claimed on any material in the public domain.
How to Register the Copyright to the Work
If you create a new work based upon public domain material, you have created what the Copyright Office calls a “Derivative Work.” You may register the copyright to a Derivative Work, similar to any other original work. Your registration is still under your name as the Author and Claimant (not Jane Austen) and the date of first publication is the date you first publish your derivative work. The Copyright Office, Circular 14, provides instructions.
Here are some of unusual remakes:
Feel free to add to this list.
(This post originally appears on Joel Friedlander’s TheBookDesigner.com as How Romeo and Juliet Can Help You Write Your Next Book.)
I see this all too often.
A writer wants to self-publish without being a publisher.
She hands off her manuscript to a company like AuthorHouse, IUniverse or WestBow Press without doing any homework. She doesn’t even research the company’s reputation until she realizes she’s made a mistake.
He buys a template cover, then discovers five other books that look just like his.
She doesn’t understand a contract, but signs it anyway, assuming it can’t be changed.
He is talked into buying videos, blog tours, and banner ads without considering whether they will increase sales enough to justify the cost.
And then, disappointed and poorer, these writers give up the dream of getting their books into readers’ hands.
I want to say to these writers, com’on!
If Bill Gates or Steve Jobs or Oprah Winfrey were self-publishing, what would they do (riches aside)? They would push, demand, question, negotiate, and micro-manage until they produced the best books possible. They know the road to success requires taking ownership of the process and maintaining control.
In other words, writers, release your inner badass.
Take charge. Think and act like a business investor, an entrepreneur, the publisher, the boss.
Why is this so hard for writers? Otherwise capable, successful, competent people turn into self-doubting wimps when it comes to pursuing their writing careers. They become embarrassed, even sheepish. Why?
Do we feel guilty? Are we being self-indulgent by taking time away from our jobs and family to write, self-publish and promote?
Do we feel silly? Are friends calling us “writers” while making air quotes with their fingertips?
Are we fatalistic? While our culture admires dreamers who pursue Don Quixote quests, it also considers them tragic, predictably so. How many well-meaning heroes die before the end of a movie or novel? Eighty percent? Ninety percent? Does cynicism justify giving up on dreams? Is there a hidden message here?
Do we feel out of step? Our culture measures a person by what he can buy, not by what he can produce. We glorify those who make their millions fast and easy. No matter how much you reject materialism, does part of you wonder if you are wasting resources that would be better applied to a “real” job? After all, there are faster, easier ways to make money than crafting a novel word by word by word.
Are we intimidated? Does the self-publishing process seem too complicated, too risky? Are there too many decisions, too many negotiations, too many contracts?
In 30 years of practicing business law, I’ve seen a lot of people succeed and fail. No matter what the business, the number one indicator of success is not intelligence, talent, luck, money, education, connections, ethics, or even lack of ethics, although all of those help.
It’s Tenacity — on Steroids.
Successful entrepreneurs have a drive that pushes them on despite obstacles, detours, doubts, debt, and mistakes. (Believe me, they make plenty of mistakes.) They believe that achieving a goal is worth pushing people to do beyond their best and breaking some of the “rules” that hold others back.
Sheepishness never got anyone anywhere.
You don’t need to be a Larry Ellison to self-publish successfully. Any writer who can write a book, mastering character, plot, and structure in the process, can handle the process of self-publishing. You’ve done harder things in your life.
Like driving a car, or marriage, or raising children.
Oprah is awarded a Presidential Medal of Freedom, Nov. 20, 2013
Think of it this way. If you want to self-publish successfully, you must
Release your inner Oprah.
Do your homework?
I know people who will spend an hour on TripAdvisor before choosing a restaurant. A car purchase takes them months! Choosing your publishing path requires a bit of research .
Once you’ve decided to self-publish your book, take the time to learn the process. I recommend you buy just two or three books. If you buy more or research on the internet, you’ll be bombarded with too much information. It will be paralyzing. Joanna Penn has compiled a list of books organized by different points in the process. Check it out. Recommended Books for Authors.
Don’t be afraid of hiring freelancers.
You are better off hiring freelancers than going with a so-called self-publishing service company. Those companies are into making profits. They don’t care about your book, and their reputations will not be hurt by your bad experience. A freelancer depends on a good reputation and referrals and will work harder to make you happy.
You’ll be more satisfied with the results if you have direct contact with the person doing the work. Like you, she is a creative person trying to turn her passion into a business. You’ll have more in common than you expect.
Almost everything is negotiable.
In our culture, we don’t learn to haggle and negotiate on a day-to-day basis. It’s considered impolite. We fear people will think less of us. The reality is, when it comes to business transactions, people will respect you more if you negotiate.
The key to negotiation is preparation. Know what you want. Know your choices. Know your walk away point. Even if you can’t negotiate a better deal, you always have the choice of saying no.
No one cares about your book as much as you do. If you hand your manuscript off to someone else, they won’t put the time and attention into it the way you would. Their tastes and preferences will not be the same as yours.
Of course, your editors, designers and consultants will have skills and ideas that expand your own. But always have the final say on standards, designs, marketing, pricing, distribution and licensing.
If you hire an Author Solutions company or any other company to help you self-publish remember, they are merely service providers, not publishers. You are the publisher. They should not decide your retail price, size, or design, and they certainly should never get exclusive rights or an option on any other work.
Image you design your own home and hire a contractor to build it. You’d never expect the contractor to say who can live in your home or what at price you can sell it. Yet that’s what some of these companies do!
Don’t sign anything you don’t understand.
In particular, read and understand everything regarding the granting of rights, licenses, and ownership. And make sure the contract may be terminated by you at any time. There are sharks out there.
Admit your mistakes.
If you signed on with the wrong company or freelancer, admit it and find a way out, even if it costs you money. Everyone makes mistakes. I’ve paid for cover designs I never used, and I wish I could get back money I paid for worthless promotions. Sometimes you just need to pay the piper and move on.
Think big and think long term.
The chances of earning enough to quit your day job by publishing one book are slim.If you approach your writing career with a long-term view, realizing you will learn and improve along the way, you are less likely to burn out before you reach your goals.
Bottom line, treat your writing venture as a legitimate and laudable endeavor, something you and everyone around you should take seriously and admire.
When in doubt, ask what would Oprah do?
With the successful adaptation of Cheryl Strayed’s WILD, many authors are imaging their books on the big screen. What writer hasn’t cast a movie star into their leading role or heard the perfect song for their opening credits? I certainly have. (Matt Damon, Coyote Winds is ready for your review anytime!)
I suspect many independently published book could be transformed into powerful, money-making films, if only they made it into the hands of the right people.
But a word of warning: there are companies out there ready to prey upon your Hollywood dreams and sell you expensive book-to-screen packages with no realistic chance of success.
In particular, I am talking about the Author Solutions (AS) companies (again): AuthorHouse, IUniverse, Xlibris, Balboa, Trafford, and WestBow Press and their book-to-screen packages. Although their prices vary depending on the marketing niche of each company, the packages are nearly identical. And expensive.
For a mere $799 (Xlibris) to $999 (WestBow and Balboa), they will prepare a synopsis and analysis of how your book might be adapted for the screen. They give Thruline Entertainment, a “leading Hollywood management and production company” a first look, and if Thruline passes, then your book is entered into AS’s Hollywood Database.
For a mere $3,499 (Xlibris) to $4,199 (WestBow and Balboa), they will prepare a more detailed outline of how your book would be adapted, commonly called a “treatment.” Again, the treatment is run past Thruline, and if they do not pick it up, it goes into AS’s Hollywood Database.
And for $14,999 (Xlibris) to $17,999 (WestBow and Balboa), you get an entire screenplay. But wait! In order to purchase the screenplay, you must buy the treatment as well, so the total price will easily top $20,000. Again Thruline gets a first look, then the screenplay is entered into the Hollywood Database.
I have read that if you inquire about these packages, the prices come way down provided you sign up immediately. It’s a buy it now cause I can’t make this offer tomorrow kind of pitch. One writer described it as the most expensive rejection letter she every received.
And what is this Hollywood Database? As of August 2012, AS claimed it had “more than 120 entertainment professionals registered on the site.” To me, 120 doesn’t sound like something to brag about. Alexa had no ranking for the website. None. And Alexa listed only four links to the Database, two of which were AS sites.
So the question is…after all the thousands of dollars writers have paid for their synopses, treatments and scripts, does anyone look at AS’s Hollywood Database?
Interestingly, you and I can’t. It’s open only to “entertainment executives from a studio, production company, agency or management companies.” They have to register and be granted access.
If you want to try to get your book on the big screen, there are better ways.
First, you can do it yourself. You know and care about your book more than anyone else. Study up on how to write treatments and screenplays, and do it yourself. There are as many books on how to write screenplays as there are on writing novels. (I have had Blake Snyder’s Save The Cat sitting on my desk for a while, still unread.) And there are classes and courses offered all over the internet.
Focus on developing a knock-out treatment. I am not an expert on the movie business, but I’ve heard that a good treatment is key. If you can get a producer’s attention with a treatment, the screenplay can come later. And realistically, they will hire a professional screenwriter for that, not an indie author.
Consider hiring a freelancer. Elance.com, freelancer.com, and other sites list hundreds of professional screenwriters. You can read reviews of their work, ask for a consult, and perhaps get a sample. You could also contact film schools and see if a promising student would be interested in the project. Not only would you get a better work product at a lower price, you’ll be working directly with a professional. You’ll be able to provide input and learn the process yourself.
Be realistic. Every year hundreds of thousands of books are published, but only a few hundred movies are made. The chances of an independently published book being made into a movie are incredibly small. If a business of long shots, this is a multi-million mile one.
The best way to improve those chances is to write a great book and get it into the hands of as many readers as possible. Instead of chasing the Hollywood dream by spending thousands on a treatment or spec screenplay, spend your money on editing, designing, producing and selling the best book possible.
Then let Hollywood chase you.
Do you know anyone who bought one of these book-to-screen packages? I’d love to hear about their experience.
The following is an update of a post I wrote for Joel Friedlander’s ever-helpful blog at TheBookDesigner.com.
On the path to self-publishing, your first decision will be whether to:
- Engage a self-publishing service company (SPSC) to do everything from editing to distribution. Some SPSCs are BookLocker, Mill City Press, Outskirts Press and Dog Ear Press.
- Do it yourself (DIY) by hiring editors, designers, and other freelancers, and uploading your finished, formatted cover and manuscript to POD providers such as CreateSpace and IngramSpark and ebook distributors such as KDP and Smashwords.
You may also mix the two, since most SPSCs have a la carte menus, and many POD providers offer editorial, design, and marketing services as add-ons. Alternatively, you could hire a self-publishing consultant to walk you through the process. Literary agents are also jumping in and offering to help—for a percentage, of course.
At first, almost everyone is tempted to hire an SPSC. After all, DIY involves hundreds of decisions. What’s the best trim size? What colors will make your cover pop? What font conveys the correct tone? How do you price your book? What do you say on the back cover? How do you hire the right editor, designer or publicist, and what if you have to fire them?
In contrast, the websites of SPSCs promise to deliver stunning books into your hands in a few weeks.
In reality, the DIY process is manageable if you take it one step at a time. But for those considering the SPSC route, here are seven questions to help separate the good SPSCs from the bad.
- What is the lowest retail price you may set for your book?
Believe it or not, some SPSCs control the retail price of your print book and set it unrealistically high. One company claims its high pricing is author-friendly because it increases potential royalties.
Forget it. You may have a fabulous book, perfectly edited, with a stunning cover and interior, but if it is priced at $20 alongside bestsellers priced at $15, $12, or $8, no one will buy it.
To market your book successfully, the price must be competitive. I would stay away from any SPSC that will price your book out of the market. You should control the retail price of your book. Period.
- What is the author price for your book (the price you pay per copy)?
As an indie author, you will be buying a lot of books and giving them away to reviewers, bloggers, friends and family, or reselling them at readings, school visits, conferences, and through your website. Choose an SPSC that will sell your books to you at a reasonable author price.
The SPSCs that set high retail prices typically offer to give their authors a measly 30% discount. So, if they price your book at $19.95, you will pay $13.96 per copy, plus another $2 to $3 for shipping and handling. That’s ridiculous.
The author price should be the actual printing costs plus a reasonable markup (15-20%) and not a discount from the retail price. Why pay more because the SPSC sets the retail price at $20 instead of $10? The printing costs are the same.
You will have already paid the SPSC hundreds, if not thousands, of dollars for design, editorial, and marketing services. Why pay double or triple the printing costs for a copy of your own book?
Let’s take a hypothetical 250-page, 6” x 9”, black-and-white trade paperback on standard paper. The cost for POD printing is approximately $4.65 per copy. As of December 2013, for this hypothetical book
- Author House fixed the retail price at $19.99, and the author price was $13.96 per copy for orders of 24 or fewer copies.
- Dog Ear Press would not fix the retail price, and its author price was $6.28 per copy.
- Mill City Press would not fix the retail price, and its author price was $4.65 per copy.
- CreateSpace would not fix the retail price, and its author price was $3.85 per copy.
In my opinion, an SPSC that sets a high retail price for your book is not expecting to make money by selling it to the public. They are going to make money selling it to you at a high author price. Dump that SPSC from your list and move on.
- What royalties will you earn?
You should be able to calculate your royalties online by assuming different trim sizes, pages, and retail pricing. I would be suspicious of any SPSC that did not have a royalty calculator on its website. If the website states that pricing, royalties and such cannot be determined until your manuscript is reviewed or formatted (and typically after you have given them your credit card number and paid a nonrefundable amount), move on to another SPSC.
- Is the agreement exclusive or non-exclusive?
You should never give an SPSC any exclusive rights to your work. And no options on any other works, formats, movie rights, subsidiary rights, anything. SPSCs are not traditional publishers that has invested capital in your book. They are service providers only and are not be entitled to any exclusive rights or options.
You might not be able to answer this question without looking at the SPSC’s contract. A reputable SPSC will post its contract online. Avoid any SPSC that will not release its contract until you sign up. For help reading the contracts, check out my post A Writer’s Worst Mistake.
- Is it easy to terminate the agreement?
You should have the right to terminate the relationship following no more than 30 days’ notice delivered via email. None of this certified mail, return receipt nonsense.
After termination, the SPSC may have the right to sell off its existing inventory, but that’s it. It should not have the right to continue to print and sell your book, even if the right is nonexclusive. If a traditional publisher were interested in your work, they might want you to buy out your former SPSC before they penned a deal. See my post Welcome to the Hotel Author Solutions about the traps of a contract that goes on and on.
- Will you get production-ready files upon termination?
If you terminate, the SPSC should give you the final production-ready files of your cover and interior at no or low cost. Not PDFs of your print-ready files, but the actual, functional production files in Adobe InDesign or comparable format.
If you move your book to a new printer without the production-ready files, then you’ll have to create new files at considerable cost. It is outrageous for an SPSC to hold onto these files after you’ve paid for the design, editing, and layout work. You own the work product and should control it.
- What is the reputation of the company?
Go to websites like Predators & Editors, Absolute Write Water Cooler, and Writers Beware and search for information about the SPSCs. Reviews may be available at The Independent Publishing Magazine site. Read about the lawsuit against Author Solutions and its affiliated companies.
Every company will have its share of unhappy customers, so sort through the complaints to get a sense of which ones are legitimate. If you find multiple reports from unhappy customers, stay away.
I do not want to scare you away from using an SPSC. Some offer reasonable deals and enjoy solid reputations. They permit you to control the process and the result. But do your homework before you commit.
Have you had any good or bad experiences with SPSC? Help other writers and share your stories in COMMENTS.
Long before I wrote the Legal Handbook, I wrote tons of fiction. I have short stories, screenplays, children’s books, and half-finished novels stuffed into drawers, both real and virtual.
Since my day job is practicing law (a 95% left-brain activity), writing kept my imaginative right-brain alive. Whether or not you believe in the whole left brain-right brain dichotomy, I know when I don’t have time to use the creative (right and write) part of my brain, I turn into a grump. Just ask my family. (Actually, don’t.)
In 2012, my left brain took over, pushed aside the encouraging-but-still-rejection letters, and told my right brain it was time to become an indie author. My historical novel, COYOTE WINDS, was going to be born.
Both sides of my brain got to work. I was choosing an evocative cover (right side) to appeal to my potential audience (left brain). I was writing blog posts while I was hiring freelancers, signing contracts, and filing tax forms.
Before long, I was helping other indie authors do the same. At conferences and via email, writers asked me how to protect their copyrights and what to do about sales tax. They has questions about using real people in their writing. They admitted to costly mistakes.
I saw that indie authors needed a resource for dealing with the wide-ranging issues of self-publishing. So I started to write Self-Publisher’s Legal Handbook.
After thirty years of representing small businesses, I knew all the information. The challenge was presenting it in a useful and easy-to-read manner. After all, a legal handbook could be the equivalent of going to the dentist: something you know you ought to take care of, but prefer to ignore.
My creative side would have to get my logical side to loosen up. The two halves of my brain would have to work together.
What I discovered was the techniques of writing fiction apply to non-fiction as well.
First drafts are awful.
Just like in fiction, first drafts of nonfiction works are rambling and disjointed. Some chapters are too thin; other too fat. In my first draft, I digressed into the history of certain laws, something interesting to no one but other lawyers. I skipped over concepts that could only be explained with illustrations and examples.
But as with fiction, you figure out what you want to write only by getting that first draft down on the page. Cutting, pasting, rewriting, killing your darlings, all that comes later.
You must organize around a theme or promise.
One big difference between first drafts and final manuscripts is organization. A successful novel presents a dilemma and promises explanation and resolution. It organizes information around plot, character and theme.
The same with nonfiction. You present a problem that resonates with your reader, and you promise answers. You organize chapters around identifying issues, presenting solutions (preferable in how-to bullet points) and ultimately offering a way to move forward. In some books, the promise is how to be thinner, sexier, richer, or a better cook. In others, it’s how to change the world.
As I rewrote the Handbook, I organized the legal mumbo-jumbo around the theme at the center of self-publishing: how to maintain control over your work. For instance, how to spot copyright licenses that are too broad or too restrictive, how to identify the honest self-publishing service company from the unscrupulous, how to avoid sharks and scammers.
Every writer hears it; publishers are looking for strong voices. Whether you are writing thrillers, memoirs or romances, your quirks of language and underlying spin on reality hold your work together.
This is even more true for nonfiction. As a nonfiction writer, you are having a conversation with your reader. You are anticipating their confusions and hesitations, walking them through unfamiliar terrain, assuring them the journey is worthwhile. What is the right voice for your topic? Enthusiastic, sarcastic, brooding, intellectual?
For the Handbook I tried to maintain a voice of approachable authority. I avoided the ten-dollar words, but will admit to an occasional four-dollar word. I resisted the urge to use lawyer fudge words like should, might, may, and consider and replaced them with concrete suggestions and advice.
Beta readers are invaluable.
Good writing is good communicating. A writer builds a bridge from one brain to another. While in fiction, you want to leave readers pondering ambiguities and possibilities, with nonfiction, you want a clean connection between the writer’s mind and the reader’s mind. You won’t know whether you have that without beta readers providing feedback, even if that feedback is they could not get past page 20. I had a couple beta readers who were brutally honest, thank goodness. They let me know when my linear brain was being too bossy and controlling over my creative side.
You never stop rewriting.
I find it reassuring when I read about famous authors who can’t read their published novels without taking out a pen and rewriting. Certainly I never stop revising and updating. I’ll be walking the dog or sitting in traffic when a new way of explaining a concept pops into my head. Or a reader will send me an email, and I realize there’s something new to add to the next edition.
What about you? What fiction techniques help you write nonfiction?
But I have promised myself, soon, very soon, I am going to disappear from this blog and finish the novel that has been languishing at the far corner of my desk. It’s almost time for my creative side to run amok.
UPDATE, OCTOBER 18, 2015: Today, I checked the websites for IUniverse and AuthorHouse to see whether they had made any changes to their form of publishing agreement. Yes, they have. While their old form gave them the right to continue to sell your book on a non-exclusive basis for one year, the new form has changed that to a 90 day period.
But I will keep this post live as a lesson to writers to READ THE FINE PRINT BEFORE YOU HIT ACCEPT ON ANY PUBLISHING OR PUBLISHING SERVICE CONTRACT.
Last week, I spoke at a conference where Keith Ogorek, Senior Vice President of Marketing at Author Solutions, gave a keynote address. I was curious to hear how he pitched the various Author Solutions self-publishing service companies. After all, their prices are high and their reputations dismal, yet they still pull in tens of thousands of new self-publishing writers each year. How did the marketing man himself sell his companies? Did he trash CreateSpace, Smashwords, Outskirts Press and other competitors?
No, he explained. There is room in the market for all these companies. After all some people like to camp, and others prefer to stay at a hotel. CreateSpace and Smashwords are for campers. AuthorHouse, Xlibris, Trafford, West Bow and the various other Author Solutions companies are for those who prefer a more professional and catered experience.
I almost choked on my latte. What an absolutely perfect analogy.
I love hotels, particular ones with soft sheets and fluffy robes. The more chocolate and chardonnay in the mini-bar, the better. But not the Hotel California! Save me and other writers from the Hotel California.
Anyone of a certain vintage will remember the Eagles’ song, Welcome to the Hotel California, about a nightmarish hotel where you can never leave.
Welcome to the Hotel Author Solutions. You can sign up anytime you like, but leaving, well, that’s another story.
Buried in the Self-Publishing Services Agreement for Xlibris, Trafford and AuthorHouse is a never-ending license. (This may be in the agreements of the other Author Solutions companies, but I could not find them on line.)
7.3 License Continuation Post-Termination. For a period of one (1) year, beginning at the conclusion of the Term, regardless of the reason for Termination, We [Author Solutions] are granted, by You, the non-exclusive, worldwide license to manufacture, store, use, display, execute, copy, reproduce (in whole or in part), warehouse, host, store, use, transmit, modify (including to create derivative works), import, make, have made, offer to sell, print, publish, market, distribute, and sell (individually or as part of compilations of collective works), and license for use via any subscription model, through all distribution channels (now or hereafter known, including online and electronic distribution channels), and otherwise exploit in any language, in print form, digital format, audio book format, or via any other medium, now known or hereafter devised, the Work [your manuscript].
Translation: Even if you fire the Author Solutions company for poor service, they have the non-exclusive, worldwide right to continue to print, publish and sell your book for a year in print, digital, audio or any other medium.
It gets worse than that. Hidden in the remedies section of the contract is another got-ya. As I read it, if the Author Solutions company continues to sell your book beyond that one year, your only remedy is to collect royalties on their sales. That’s it. You waive the right to stop them.
This is like breaking up with Mr., Slick, meeting Mr. Right, but still being obligated to go out with Mr. Slick every Friday night for a year, or even longer as long as he pays for dinner.
Image you self-publish your book through AuthorHouse and it sells well. A traditional publisher approaches you and wants to re-publish it with lots of support . They promise book tours and full-page ads. You go to terminate your agreement with AuthorHouse and discover this provision. Now, you have to tell the traditional publisher that you cannot grant them exclusive rights, that AuthorHouse has the right to continue to sell your book alongside the traditional publisher. This could kill your deal and opportunity.
To get out of the AuthorHouse contract will you have to pay something to AuthorHouse? Do you have to buy back your own book? I would not be surprised. If you or anyone you know has been through this, please contact me. I would love to get the story.
Sadly, I had to leave to catch a plane before the end of Ogorek’s speech. I wanted to ask him the business justification for this never-ending provision. He deserves to be put on the spot. In a crowded room, of course.
I DO NOT KNOW OF ANY OTHER SELF-PUBLISHING SERVICE COMPANY THAT HAS SUCH A PROVISION IN ITS CONTRACT. I’ve looked at CreateSpace, Kindle Direct Publishing, Mill City Press, Outskirts Press, BookBaby, Smashwords. In their agreements, you may terminate any time you like, and they stop selling your book within 30 days, typically less.
Bottom line, you can choose to stay at a hotel, fancy, cheap or pure business, but choose a hotel you may leave any time you like. Even better, try camping and manage the self-publishing process yourself. It’s not that hard. You’ll sleep better in your own tent anyway.
Writers, you work long and hard on your manuscripts. You pour your hopes, dreams and soul into them. Take the time to look at these contracts before you sign them, particularly the provisions on the grant of rights and termination. If you need more guidance on how to read these contracts, consult with an attorney. At least pick up my book, Self-Publisher’s Legal Handbook. The Addendum walks you through these key provisions so you know what to look for.
If you can write a book, mastering character, plot and structure, then you CAN understand these contract provisions. You have to.
Otherwise you could be stuck with Mr. Slick.
Today, I am running a guest post by Jody Rein, a book publishing consultant, literary agent and former executive editor with Big 10, Big 6, Big 5 publishers in New York. She shares some helpful advice on understanding and negotiating publishing contracts.
A traditional book publisher has offered you a contract—hallelujah! But…now what?
I always negotiate book publishing contracts in (at least) two stages. I recommend you do this as well.
Stage one: Agree upon the key deal points.
Stage two: Review and negotiate the actual contract.
Why Negotiate Before the Book Contract Arrives?
Every writer is tempted to scream “yes, send me the contract!” when a publisher comes calling. If possible…wait. Clear up the fundamental terms first.
- You’re in your strongest bargaining position now–the “Deal or No Deal” part of the negotiation. The publisher is uncertain: will you walk if you don’t get what you want?
- Book contracts are often more than 30 pages long and full of negotiable points large and small. Get the big stuff off the table so it’s not part of the give and take.
- Time solidifies terms. The longer you let the offer sit, the more fixed it can get.
- Better to learn early on if you can’t get what you want.
- Contracts sometimes take time to be delivered. Agree on the main points and ask for an emailed deal memo from the publisher—no more “is this real?” anxiety while waiting.
What if I Have an Agent?
Your agent will handle these negotiations, but you’re still the one signing the contract. Confirm each point with your agent when she presents the deal to you. A reputable agent will see reviewing these standard concerns with you as an important part of her job.
Seven Key Book Deal Points
1.) Advance, both amount and “payout.”
Most traditional publishers will offer you a dollar amount to publish your book. Of course you’ll need to know how much—but you’ll also need to know when. Publishers don’t pay everything upfront—they hold on to the money as long as possible, often dividing the payment into 3rds or 4ths and paying out over years. Payout can be negotiable, but harder to change after set in writing on the contract.
2.) Who holds what rights?
Agreeing to “be published” basically means you license, to the publisher, the right to reprint your words in specific formats and places, and sometimes to license such rights to other companies (called “subsidiary rights”). This issue can get pretty complex and you don’t need to worry about nailing down every possibility upfront. But do know:
- Is your publisher asking for the right to publish your book in every country (and language) in the world, or only in North America?
- Is your publisher asking for the right to publish your book in digital/electronic form (ebooks) and audio form?
- Is your publisher asking for the right to license your book to other commercial enterprises, such as to the movies, to tv and/or for products like toys and games?
3.) What’s your share if you grant the publisher the rights above?
If you grant your publisher the subsidiary rights to your work how much will you be paid? What percentage goes to you and what percentage to the publisher?
You don’t need to get every possible scenario straight, just the biggies:
- Percentage of ebook licenses
- Percentage of translation licenses
- Percentage of licenses to other English-language publishers
- Percentage of audio/film/tv/merchandising licenses
4.) Royalty Shenanigans
Royalties are the monies you get as a percentage of the sale of each book, in any format. So you might be owed, for example, 10% of the cover price of every mass market paperback book sold. (You get this money only after the publisher has earned back the advance it paid you.) So a key part of the offer made to you will include royalties on:
- Hardcover books
- Paperback books (trade and mass)
A no-brainer,right? Here’s the problem—publishers put computations into their contracts that modify the royalties they offer. Most are not deal-breakers. But—one is.
What if there’s a stipulation that cuts every royalty payment in half? Sadly, several houses now pay royalties on “net” earnings.
“Net” means, they pay you net of key discounts. So if they sell your $10 book to a bookstore for $5, you will get your royalty on the $5 taken in by the publisher, not on the $10 cover price of the book.
Such payment plans may or may not be unfair; the bottom line of the industry has changed so drastically with the loss of bookstores and “gain” of Amazon it’s hard to know. But you must know the real basis on which you will be paid before you agree to the contract.
5.) What will your publisher publish?
Huh? Yep. You publisher may have the right to publish in any format. Once it was easy to compel a publisher to publish in hardcover first, today many authors have to live with uncertainty, not knowing if their book will even appear in print, or if it will be “published” only in ebook form. Now is the time to find out: can you obligate your publisher to publish in print? If not, can you live with not knowing?
6.) Consultations & Approvals
Important and often overlooked: If you ask for approval* early on– for example, of your final book title or cover design—you stand a much better chance of getting it into the contract. If this is important to you, cover it now; don’t wait.
*“Approval” means the publisher has to get your approval before publishing.“Consultation,” the fallback from approval, means they have to make an effort to get your input. Much better to have “consultation” than nothing if it matters to you!
7.) Any Obligations to the Author?
Over the past decade, “hybrid” publishers have sprung up—publishers who take on some but not all of the financial risk of publishing, promoting and distributing your work. For example, some ebook publishers will deduct the cost of converting the book from your initial royalty earnings. Other publishers may require you commit to purchasing some number of your own books. These are not necessarily unethical ways of doing business—but you must know upfront if these demands exist so that you can determine whether or not you find them acceptable.
Bonus question: What About the Option?
Many people will tell you to beware of the option clause—the one that says you have to show your publisher your next book. That clause can be full of onerous requirements (“wait 6 months after publishing to show us your next book;” “give us the chance to match any offer even if we say no”). I haven’t had problems getting rid of the bad stuff during the second stage of negotiation, so I don’t call it a deal breaker. But if it worries you, ask the publisher to chop it out up front.
Jody Rein is a book publishing consultant, literary agent and former executive editor with Big 10, Big 6, Big 5 publishers in New York.
She blogs occasionally at www.authorplanet.org/blog
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Where do cows go on Saturday nights? To the moo-vies.
My father loved to tell puns and stories, especially stories about his boyhood on the western prairie during the 1930s, the Dust Bowl.
I will be forever thankful he wrote a short memoir about those years before he passed away. Not ready to say goodbye to my Dad, I reread his memoir several times. I found wonderful tidbits about making ice cream from summer hail and the frightening silence before a dust storm. But I was struck most by something missing from today’s childhood.
While there was plenty of dust in his stories, my father also talked about freedom and adventure. He spent his days hunting and exploring. He drove a pick-up at ten. He collected arrowheads and grasshoppers. He camped out on the prairie grass and counted a thousand shooting stars. My father didn’t seem to suffer from the lack of electricity, running water, and for a couple years, school. He thrived.
How different from the lives of his grandsons who couldn’t ride a bike without a helmet or play soccer without pads, who carried hand sanitizers in their backpacks. I wanted to contrast my father’s unfenced boyhood with the over-supervised life of a modern, suburban boy.
To capture his boyhood, I researched prairie life, homesteading, windmills, rifles, coyotes, rattlesnakes, prairie dogs, and hawks. I watched 1930s films and listened to old radio serials. When I researched the Dust Bowl, I discovered something more, something I absolutely had to write about: American optimism.
Our American can-do spirit is the source of our greatest accomplishments and our worst follies. It got us to the moon, but also into the Dust Bowl.
American optimism drew people to the arid prairie in the 1920s with the belief they would transform it into the world’s breadbasket. All it took was hard work and new technology, the gas-powered tractor. They plowed up millions of acres of prairie grass and bought on one of the worst man-made ecological disasters in history. These families so strongly believed in what they were doing, they were blind to the consequences, even when the land was blowing out from under them. What a great set up for a story.
I started working on COYOTE WINDS during NaNoWriMo in 2008. While I did not make the 50,000 word target, by the time I hit 25,000 words, I was hooked. When I walked the dog, I chatted with my protagonist about his fears and dreams. When I drove, I had to pull over to scribble down notes. I went through my father’s emails to find his puns, which made their way into the novel.
Over the next four years, I wrote, rewrote, and restructured the book. I workshopped chapters and killed a few darlings. I queried agents and editors and had quite a few nibbles, but no bites. One response I heard from agents was ‘nice book, no market;’ no one wanted another Dust Bowl book.
I quit at least a dozen times, but the characters kept calling me back, including an heroic coyote named Ro.
In 2012, I read Ken Burns was releasing a PBS series on the Dust Bowl. Maybe the agents were wrong, and people were interested in the Dust Bowl. I took matters into my own hands and self-published COYOTE WINDS.
After all the queries and rejections, after the countless peeks at my inbox, I loved being in control of the process. I learned about book covers, layouts, POD, and social media.
I made mistakes along the way, paid for services and contests when I should have known better. One reason I wrote the Handbook was to save other self-publishers from making similar mistakes.
And I learned the agents were right; COYOTE WINDS earned five-star reviews and respectable sales, but the market was too thin to feed a publisher, agent and writer.
Perhaps that’s changing. (Fingers crossed) Teachers are discovering COYOTE WINDS. The novel is appearing on Middle School summer reading lists alongside works by Mark Twain and Lois Lowry. I had a spike of sales in August and September. Out of the blue, I get emails from teachers asking if I could come talk to students.
If you have never done a school visit, they are tremendously fun. When students ask you what happened to your characters, as if they knew and loved them, well, for a writer it gets no better than that.
So while I am busy blogging and tweeting about the legal issues of self-publishing, remember fiction is still my first love.
A few more of my father’s puns.
Why did they stop the vultures from boarding the plane? They didn’t allow carrions.
How do you make a witch itch? Take away her w.
What is green and fuzzy and if it landed on your head it would kill you. A pool table.
Thank you, Dad.
You have probably heard the old joke,
What do you call 1000 lawyers at the bottom of the ocean?
A good start.
Okay, that’s unfair (unless, of course, I get to choose which lawyers), but I do think there are many matters that writers can handle on their own without paying an attorney.
All they need are tools and information. That’s why I wrote Self-Publisher’s Legal Handbook and this blog.
With that same goal in mind, Jessie Brown and I wrote a new e-book
How to Use Eye-Catching Images Without Paying a Fortune or a Lawyer to be released on Amazon on September 19, 2014 and currently available for pre-order.
The price–99 cents, but if sign up for my newsletter, you will get it for free.
The e-book covers the option of using free public domain images, including linking to dozens of resources.
And we explain when a writer may not need permission because the use is “fair use.”
But the focus of the book is how to track down a copyright holder and ask for permission, including a sample permission request letter.
With links galore.
This is the first in a series of short e-books. The next one will be How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer. We’ll get that out before Thanksgiving.
Again, the ebook will be 99 cents on Amazon or free if you sign up for my newsletter.