Drinking Starbucks' Coffee

Monday, October 27, 2014

When I go to writers’ conferences and identify myself as a lawyer, I often get asked if it is okay to use brand names in a novel. My answer? As long as it isn’t defamatory, it is usually fine. Here is the rest of my answer, which is reprinted from the April 22, 2010 post I wrote for the Hoosier Ink blog.*

Drinking Starbucks’ Coffee

I drink a lot of coffee, although not usually from Starbucks. But my characters go there. That’s because it is a nationally-recognized name, and I like to use some recognizable brands to give my stories a sense of authenticity.

But I know writers who are scared of using brand names. They think it will violate copyright or trademark laws, or they don’t want to use the ® symbol because it can interrupt the flow of the story.

I don’t worry about any of that.

You can’t copyright names, so copyright law doesn’t apply. You can trademark names, and Starbucks is a registered trademark. However, trademarks have a specific, limited purpose, so the protection the owner gets is much narrower than with copyrights.

Trademarks protect against consumer confusion over the source of a product or service. Consumers use recognizable names and symbols to tell them that they are getting a certain quality or a product with particular characteristics. When you see the Nike swoosh on a pair of shoes, you expect them to last for a while. When a counterfeiter prints the swoosh on shoddy-quality shoes, people are mislead. That harms both the consumer (who is not getting what he or she expected) and Nike (who could lose sales to the counterfeiter and suffer harm to its reputation when the shoes fall apart).

Your characters can drink 7-Up without worrying about trademark infringement. No one is going to go out and buy counterfeit 7-Up based on your novel, nor will readers assume that the makers of 7-Up are connected with your book. You don’t have to call it lemon-lime soda.

A brand name can lose its trademark protection if consumers use it generically for any brand of the same type of product. After people started referring to all tissues as kleenex and to photocopies made on any brand photocopier as xeroxes, the owners of those trademarks spent a lot of money educating consumers on the proper use of the terms. That’s why brand owners would like you to use the ® symbol. But you aren’t required to. If you want to help trademark owners protect their property and you think “the real thing” will add authenticity, just capitalize Coke. 

So let your characters drink Starbucks’ coffee if they want to. Or 7-Up. Or Coke. (There seems to be a lot of drinking in this post. Maybe I should send my characters to the bathroom more often.)

Conferenced Out

Monday, October 20, 2014

I make it a practice to attend two or more writers’ conferences a year, with at least one of them lasting several days. This year I attended one multi-day conference, two single-day conferences, and a workshop. The workshop was held during the summer, but the conferences came on three successive weekends. They started with the multi-day conference on September 25-28, followed by Saturday conferences on October 4 and 11. So is it any surprise that I titled this post, “Conferenced Out”?
Not that I’m complaining. I get several benefits from attending writers’ conferences. My main reason for going is an educational one—to learn how to improve my writing. But achieving this goal can be tricky at times, especially when you’ve attended as many conferences as I have. After all, how many times can I hear the same material on dialogue without getting bored? The second and even the third time may reinforce what I heard—and possibly forgot—the first time, but there is a limit.

At least that’s what I’ve grown to expect. There are exceptions, however. As I looked at the offerings for the first breakout session at the Indiana Writers’ Consortium Creative Writing Conference, only one appeared to be relevant to my own writing, and it was on dialogue. I attended reluctantly—and enjoyed myself immensely. None of the principles were new to me, but Kate Collins, who writes the Flower Shop Mysteries series, knows how to keep her audience interested. And for writers who are less familiar with the principles of writing dialogue, it was educational as well as entertaining.
The second breakout session created a different dilemma, presenting me with two choices that interested me. I had to choose, and the one I chose was good. But I still wonder what I missed from the other class.
That’s a problem with any conference that offers separate breakout sessions, and I’m glad the Indiana SCBWI “Go North for Nonfiction” conference wasn’t set up that way. As I looked through the presentations, I realized that there was only one I was willing to miss. Fortunately, there was only one choice at a time, and I didn’t have to miss anything.
The second reason I attend writers’ conferences is to network. Meeting new people is always a good use of my time.
Finally, I go to sell my books. “Sell my books” has two meanings here. Some conferences, including the multi-day ACFW Conference, give attendees a chance to meet with editors and agents and pitch a current manuscript. But all conferences give me the opportunity to sell copies of my published books to readers. Sometimes this is a direct benefit, such as having copies in the conference bookstore or having my own book sales table, and sometimes it is simply a marketing opportunity to talk the books up and pass out postcards or bookmarks advertising them.
So yes, I’m ready for a rest before I attend another writers’ conference. But when the next one comes around, I’ll be crouched at the starting line, ready for the flag to fall.

Work for Hire: When the Writer Isn't the Author

Monday, October 13, 2014

As I promised last week, I am reprinting a post that I wrote for the “Hoosier Ink” blog on November 25, 2010.* The post, titled “When the Writer Isn’t the Author,” discusses when something is a work for hire and what the legal implications are.
One additional note. A freelancer can assign/sell/give the copyright to the person who commissioned the work even if it doesn’t qualify as a work for hire. For practical purposes, the results may be the same, but the labels are still different.
When the Writer Isn’t the Author
“I wrote it, so I get the copyright. Don’t I?”
Usually, but not always.
The author receives the copyright, but the author and the writer aren’t always the same person.
I see that puzzled look on your face, so let me explain.
Federal law gives the copyright to the author. In most cases, the person who wrote the manuscript is the author. But the definition changes if the material is what copyright law calls a “work made for hire.”**
So what is a work for hire? The law creates two categories. The first is simply “a work prepared by an employee within the scope of his or her employment.” If you are a staff journalist writing articles for the newspaper that employs you, those articles are works-for-hire. You may be the writer, but your employer is the author for copyright purposes.
How you label your relationship doesn’t matter. If you are billed as a “freelance correspondent” or an “independent contractor” but are required to work a certain number of hours every week and are paid for vacations and sick days, you are probably an employee rather than an independent contractor. It isn’t always easy to draw the line, but the more you look like a traditional employee, the more likely it is that the writing you do as part of the relationship is work for hire.
You don’t have to be an employee to create a work for hire, however. That’s because there is a second category for certain commissioned works.
To determine if a work fits into this second category, ask yourself the following three questions. If you answer “yes” to all of them, it is a work for hire and the person who commissioned it is the author. If even one answer is “no,” as the writer you are also the author.
1.  Was the work specially ordered or commissioned? In other words, did someone ask you to write it? If you did the work on assignment, it may be a work for hire. If you wrote it on your own initiative and followed a normal submission process, it is not.
2.  Was it created “for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”? Magazines and newspapers are collective works. A novel is not a collective work, but a single book containing four novellas is.
3.  Have the parties signed a written agreement saying it is a work for hire?
If the material is a work for hire (either because you are an employee or because you answered all three questions in the affirmative), does that mean you can’t use it? The answer depends on your agreement with the legal author. Your employer may let you republish the material for certain purposes or under certain conditions, but ALWAYS get it in writing. The same is true for a commissioned work. See what you can negotiate, and put it in writing.
So should you enter into a work for hire arrangement? Weigh what you get out of it against what you give up and make your own call.
But don’t assume that you own it just because you wrote it.
** See 17 U.S.C. 101 and 17 U.S.C. 201(b).
The photograph shows the Office of War Information News Bureau in November 1942. Because these individuals were employees, the news articles they produced were works for hire. The photographer, Roger Smith, was also an employee, so the photograph belongs to the United States government. Because there is no copyright in U.S. government works, the photograph is in the public domain.

Freelance or Work for Hire?

Monday, October 6, 2014

I recently attended a conference where one of the speakers repeatedly used the terms “freelance” and “work for hire” as if they meant the same thing. I kept my mouth shut then, but I stewed about it all the way home. So in order to make me feel better, I’m going to tell you the difference.

Freelance means that you are free to work for anyone on your own time and your own terms. For legal purposes, you are your own employer, and nobody can tell you what to do until you sign a contract. It also means that you own the copyright in your creative product unless you agree to sell it—but that is your choice.

An employee is not a freelancer when doing the job for which he or she is employed. These are not mutually exclusive, however. A journalist may be an employee when writing articles for a newspaper but a freelancer when writing a novel after work. (Some journalists are freelancers even when writing for newspapers and magazines, but these individuals shop their work around rather than earning a salary from one publication.)

Anything created for an employer as part of your employment is a work for hire. When that happens, “freelance” and “work for hire” are incompatible labels. There are some limited situations, however, when an individual does not have to be an employee to create a work for hire. In those situations, the assignment does carry both labels. Next week I will reprint a blog post I did several years ago that discusses work for hire in more detail. But the main point here is that while freelance and work for hire may sometimes overlap, as in the diagram at the top of this post, they are not the same.