Drinking Starbucks' Coffee

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.)
__________

* http://hoosierink.blogspot.com/2010/04/drinking-starbucks-coffee.html

Conferenced Out

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

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.

 

_________

 

* http://hoosierink.blogspot.com/2010/11/when-writer-isnt-author.html

 

** 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?

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.

Bad Beginnings

As I prepared to pitch a novel at a conference last week, I thought about how many ways I had started it before finding one that works. And the biggest lesson I learned? Genre matters.

 

In order to get the most from this post, you need a framework. Mirage is contemporary women’s fiction written for a Christian audience. It tells the story of an ambitious young lawyer who idolizes her father. When he is arrested for running a Ponzi scheme, she is initially convinced of his innocence. But as evidence of his guilt mounts and her own career is threatened, she struggles with God’s command to forgive. Will she lose everything, or will she discover God’s true plan for her life?

 

My first attempt at an opening chapter was filled with heart-wrenching sequences. It started with a television news report about a silver Jaguar involved in a fatal accident. (I know that isn’t a Jaguar in the picture, but it was the only thing I could find to go with this blog post.) Although the victim is unidentified, Sarah is terrified that it was her father, and every mile is filled with anguished memories as she rushes to her parents’ home.

 

I thought it was a great opening. After all, it was a dramatic scene to grab readers’ attention. Then my writers’ critique group told me they didn’t know enough about Sarah yet to care.

 

We don’t know anything about Indiana Jones at the beginning of Raiders of the Lost Ark, either, and it works anyway. So why was mine different? Maybe if I had added more heart-stopping situations it would have been okay as the opening for a thriller or an action adventure. Those genres attract readers who wait for the next heart attack. But readers of women’s fiction are looking for human emotions, not heart-stopping scenes.

 

My second attempt took a metaphorical approach. Sarah admired the façade of her parents’ home without realizing that façades are sometimes deceptive. But that one just fell flat. Maybe I could have made it work for literary fiction, but that’s not what I was writing.

 

On to number three. I lopped off the first couple of chapters and started with a favorite one where Sarah goes sailing with her new boyfriend. Then I submitted it for a critique at a writers’ conference I attended last year. The comments were very helpful—for a romance. Shame on me for misleading the reader as to the genre.

 

My fourth attempt was another try for a drama. Sarah was tutoring a first grader, and the chapter opened with Sarah learning that the girl’s brother had just died. The problem? It lead my critique partner to expect the girl to have a greater role in the story than is the case.

 

I stuck with my fifth attempt. It doesn’t start with a bang, but all it has to do is grab the reader’s attention. The opening chapter now begins this way:

 

            “When was the last time you visited someone in prison?”

 

            Sarah Bartholomew never had. She didn’t even know any criminals. But she leaned forward in her pew as the sermon continued.

 

            “Our church sends volunteers into the jail once a week to tutor inmates who dropped out of high school. Prisoners who earn their diplomas are less likely to return to a life of crime when they get out.”

 

            That sounded interesting, but the firm would never let her do it. The partners already begrudged the time she spent tutoring at the Boys & Girls Club.

 

            The minister pointed toward the congregation. “The hours are seven to nine in the evening one day a week. Anyone here can surely give that much.”

 

            Not if they worked for Mason, Adams, and Marshall. Still, the long nights and short weekends she put in would be worth it when she made partner.

 

            Besides, there was a reason she hadn’t gone into criminal law. Defending the innocent would be too stressful. What if she failed to get them off?

 

            And she had no sympathy for the guilty.

 

In the rest of the chapter, Sarah drives to her parents’ house for their regular Sunday afternoon dinner, and they talk about the time they spend volunteering.

 

I think this new opening chapter foreshadows the main plot in the book, in which Sarah discovers that her father has been running a Ponzi scheme; introduces the three main characters (Sarah and her parents); and makes Sarah a sympathetic figure because of the time she spends volunteering.

 

In any event, it works better for women’s fiction than the earlier attempts did.

 

By the way, just because a chapter doesn’t work as an opening doesn’t mean it won’t work elsewhere. I salvaged all of the attempts except the second and used them elsewhere in the manuscript.

 

What are your thoughts?

Getting a Sense of Place

Earlier this month I took a research trip for my middle-grade historical novel. The story takes place during World War II, and my protagonist lives in Berkeley, California when the Japanese bomb Pearl Harbor. She has a Japanese father and a Caucasian mother, but even 1/16^th Japanese blood would have been enough to send her to Tanforan Assembly Center (a converted racetrack) and Topaz War Relocation Center. 

I wanted to do on-site visits, but I had a significant problem. Tanforan is now a two-level shopping mall, and Topaz is open desert. That means I had to (and did) get most of my knowledge about both from reading memoirs. Even so, visiting added a sense of place that I couldn’t get from books. 

The books told me that Topaz was isolated and desolate. Being there made it real. It took hours of driving through mountains and deserts to get to Delta, Utah, which was the closest town, and then it took another half hour from there. The isolation suffocated me. The residents of Topaz spent two nights and a day on a train to reach it, with each mile taking them farther away from their beloved San Francisco. After transferring to a bus at Delta, they finally arrived at their destination to find nothing but rows and rows of tar-papered barracks in the middle of nowhere. Think how the isolation must have affected people who were born and raised in a major metropolitan area.  

Then there was the size. I already knew that the residential area was a mile square, but that was just a number until I walked and drove it. Now I can’t imagine how they managed to cram 8,000 people, two elementary schools, a high school, a hospital, and a number of offices in such a small space. More suffocation. 

Topaz was disassembled after the war, and there is very little left at the site. However, part of the original barbed-wire fence still stands, and it confirmed the impression I got from my reading. As you can see from the picture, there was plenty of space to crawl through, and the residents often did. Not to escape, though. The War Relocation Authority used the surrounding land to grow crops and raise animals to feed the people in the camp, and many of the residents worked outside the fence in the agricultural areas. Although the administration discouraged it and the Topaz Times contained frequent pleas not to climb through the fence, many residents used that route as a shortcut to their jobs. (And no, the fence was not electrified.) 

Dust storms were a frequent experience for the Japanese Americans who lived in Topaz and other desert camps. Crazy as it may seem, I wanted to experience one while I was there. Unfortunately, it had rained the night before so the dust stayed put. Driving through Utah and Nevada the next day, however, we did see a number of dust clouds in the distance. 

At Tanforan, the inhabitants would have felt a different kind of isolation. They were in the middle of a bustling metropolitan area that was closed to them. Still, during the five months they lived there in horse stalls or barracks with gaping holes in the walls, at least they were still in their home state of California. And they were close enough that their Caucasian friends could visit them occasionally. 

The building in the middle of this picture is the current BART station. Imagine that it is the grandstand roof and you are sitting there 72 years ago, as many of the residents did. They could see civilization all around them. 

 

From our hotel near Berkeley, it took a hotel shuttle, a bus, and the BART (with one transfer) to get to San Pedro, where Tanforan is. It also took about 2 ½ hours. On the way back, every connection came right away, and even the hotel shuttle came just as we were getting ready to call for it, so the return trip took only 1½ hours. The Japanese Americans made the trip by bus and with no stops or connections, but they also had to contend with traffic. So I’m assuming that it took them at least two hours, and probably much longer. Hours filled with apprehension and uncertainty.

 

We did the trip backwards for practical reasons, but at least we did it.

 

Writers can’t always visit their locales, but they should if they can.

 

I’m glad I did.



Copyright Bullies

I just returned from a research trip and haven’t had time to write a new blog post, so I am reprinting one I wrote for the Indiana Writers’ Consortium blog on April 24, 1913.* I made a couple of minor edits to reflect the current status of my book, but otherwise the post is unchanged.

Copyright Bullies

These days we hear a lot about children and teens who bully their classmates. We also hear about the copyright police—the ones who remind bloggers and middle school music pirates to honor copyrights. But we rarely hear about the copyright bullies.

Copyright bullies are those publishers who try to scare us out of using their materials for any purpose whatsoever (with the sometimes exception of book reviews). The law reserves certain rights to the public, but these copyright bullies and their lawyers don’t want us to know that. 

Many books have this warning in the front: “No part of this book may be reproduced in any form, except for brief quotations in printed reviews, without permission in writing from the publisher.” 

Wrong. There are a number of what the law calls “fair uses,” and brief quotations in printed reviews is only one of them. To make a general and far too simplistic statement, a fair use is one that takes a short excerpt and uses it in a way that transforms or complements the copyrighted material rather than replacing it. You can find a detailed discussion of fair use in my book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), which is available from Amazon and other retailers. 

Then there are those works that have been around so long that copyright laws no longer protect them. This is called being in the public domain. People can use public domain materials any way they want, although they should attribute the source. 

I found the most flagrant attempt at copyright bullying in a book that compiles several of Lewis Carroll’s works—all of which entered the public domain decades ago. In that book the warning states: “No part of this publication may be reproduced in any way or by any means electronic, mechanical, photocopying, recording, or stored in an information retrieval system of any kind, without the prior permission in writing from [Publisher], except in the case of brief quotations embodied in critical articles and reviews.” 

Huh? All the material is in the public domain, which is where the publisher got it from in the first place. The reader is free to copy at will without worrying about copyright infringement. 

We should all be careful not to violate copyrights, and some warning is necessary.  

But don’t be intimidated by copyright bullies. 

__________ 

* http://indiana-writers-consortium.blogspot.com/2013/04/copyright-bullies.html