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The Writer's Law School : Legal Tips for Writers

Writer's Law School Fall 2022 Schedule



       For writer and artists, it's difficult to obtain information about protecting your rights in your creative projects. And if you do, it's difficult to decipher the "legalese."


       In this workshop designed for writers, we'll cover the basics of copyrights, trademarks and key artistic rights so that you'll understand the fine print without having a law degree.


       In this session, you'll learn:

  • The differences between Copyright, Trademarks, Patents and Service Marks
  • The Copyright Registration Process and the CASE law
  • What is the Public Domain?
  • What is the Fair Use Doctrine?
  • Which Business Entity is best for my writing career?
  • Should I license or sell my work?
  • Resources to help you protect your rights  


Upcoming Sessions: (advance registration required)

 

 

2022

 

September 10, 2022 1 p.m. San Diego Writers and Editors Guild, San Diego, CA. Click to Register.*

  

September 16, 2022 - Osher Lifelong Learning Institute, University of South Florida. *

 

September 19, 2022 7 p.m. Westport Public Library, Westport, CT. Click to Register.

 

October 1, 2022 - 10 a.m. Kiss of Death RWA Mystery/Suspense Section-COFFIN webinar series. Click to Register.*

 

October, 12, 2022 7 p.m. New Canaan Library, New Canaan, CT. Click to register.

 

October 19, 2022 - 2 p.m. - White Plains Public Library, White Plains, NY. Click to Register.*

 

November 17, 2022 - 7:30 p.m. - Forth Worth Public Library, Global Entrepreneurs Week, Forth Worth Texas*

 

November 18, 2022 - 7 p.m. - Sarah Hallock Library, Milton, NY

 

*Virtual Sessions

 

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Praise for The Writer's Law School

"As Program Coordinator for the Chappaqua Library I have worked with many lecturers over my career.  Jode Millman stands out.  Her workshop Writers Law School was a clear, concise explanation for debut authors and previously published authors.  Everyone was able to walk away with important accurate and relevant information.  I heartily recommend her." Joan Kuhn, Program Coordinator, Chappaqua Library
 
 
"Jode Millman presented a fabulous webinar for the Women's Fiction Writers Association (WFWA) on protecting your artistic rights as a writer/author. Members were engaged and found the information so valuable. They said that it was practical and yet not boring! As a lawyer and writer myself, that gave me a chuckle. Jode indeed made the topic interesting and enjoyable. Bravo!" ~ Lisa Montanaro, Webinar Program Leader & Host for WFWA
 
"It was a great pleasure to share the screen with you...and everyone I spoke with praised your presentation.  We all learned!  Thank you again." - Anne Seifert, Co-President, Smith College Club of Orange County
 
 
"As teacher authors who write books for Spanish and French language learners, we have only anecdotal information mostly from our teaching careers, about copyrights.  As teachers we made photocopies for our students for "educational purposes".  As authors, we needed a concise, clear explanation of copyrights and how to protect them and had already received multiple streams of misinformation from attorneys and other authors.  This presentation was exactly what we needed.  We submitted questions specific to our genre and industry and, not only did Jodé stay to answer them all, she had already incorporated most of our questions into her presentation in advance, tailoring for what we needed.  What she saved us in time and money is priceless.   If you are a small publishing company, you need to hire Jodé Millman.  If you are a self-published author, you need her workshop.  If you are considering signing a publishing contract, you need this workshop.   It's not legal advice.  It is the next best thing." Karen Rowan, Command Performance Books
 
 
"In just an hour, Jode managed to distill copyright and trademark law into easily understood guidelines for writers! This was an indispensable workshop for new and aspiring writers as they attempt to navigate the sometimes confusing journey to publication." Erika Hill, Provo City Library
 
 
 
"The Writer's Law Workshop was a great session and covered so much more than just the basics of copyright. This workshop is a must for anyone getting started in the world of writing and art. Jode is a great speaker and explained complicated topics in a way that you can understand. Jode delivered and more - she answered specific questions and ensured we understood. Thank you for this great session, I enjoyed it!" —Miriam Mayer, Gwinnett County Public Library
 
 
 

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A Call to Arms against Banned Books

As a lawyer, who is also a writer and creator of The Writer's Law School, I sometimes believe my superpower lies in spotlighting legal issues that simmer beneath the surface. For instance, underneath the proliferation of book banning sweeping throughout the country is the threat to one of the most esteemed amendments of the U.S. Constitution—the First Amendment. As a brief reminder, the First Amendment guarantees the freedoms of religion, expression, assembly and the right to petition.


You know the situation is growing desperate when classic novels like "To Kill a Mockingbird" by Harper Lee, "The Handmaiden's Tale" by Margaret Atwood, "Huckleberry Finn" by Mark Twain, "The Bluest Eyes" by Toni Morrison, "Maus" by Art Spiegelman, "Between the World and Me" by Ta-Neshi Coates and "The Hate U Give" by Angie Thomas are under attack. Add to that list "Outlander" by Diana Gabaldon and George M. Johnson's "All Boys Aren't Blue."


The question is whether school districts can legally remove these masterpieces from their libraries? The answer is not as clear as the school administrations would like to believe. In 1982, the Supreme Court decided in Board of Education, Island Trees Union Free School District No.26 vs. Pico (457 U.S. 853) that the First Amendment imposes limitations on a school board's exercising its discretion in removing books from junior and high school libraries. Local school boards may not remove books simply because they dislike the ideas contained within those books, nor can they seek by their removal to prescribe what shall be the governing positions in politics, nationalism, religion or other matters of opinion. In other words, the school board cannot censor political or social ideas contained with those books.


Contrary to the forty-year constitutional precedent, the recent trend in some parts of the country has been to ban books based on sexual and racial identity. In states like Oklahoma, they introduced a bill in the State Senate seeking to prohibit public school libraries from stocking books that discuss sexual identity, sexual activity or gender identity. Of course, we are all aware of Florida's controversial "Parental Rights in Education Act" aka "Don't Say Gay" bill, which limits what classrooms can teach about sexual orientation and gender identity. Wyoming, Tennessee, Virginia, South Carolina, and Mississippi appear poised to jump on the censorship bandwagon.


What does this mean for writers? Are we to stifle our creative juices and not tell the stories we want to tell or write about the characters we desire to explore because we are afraid of being banned? What about the chilling effect censorship has on the audience? Should readers be shamed because of who they are; should they be barred from reading about people who represent their communities?


My new crime thriller, HOOKER AVENUE, involves two female protagonists, a cop and an attorney, who are thrust into the path of a serial killer when the attorney saves a mysterious woman from drowning. Jessie Martin is a single mom attorney, whose estranged friend, bi-racial Detective Ebony Jones, is investigating a series of cold cases involving missing prostitutes. The near-drowning victim, Lissie Sexton, is a young, unwed mother, sex worker and addict who has lost custody of her son to her parents. Ebony believes that Lissie is the key to unlocking the serial vanishings, while Jessie faces professional ethical dilemmas as she navigates whether to protect her client, Lissie, or assist Ebony in her investigation.


Viewed through the lens of racial discrimination and conservative sexual attitudes, HOOKER AVENUE could be ripe for banning. It checks all the boxes: unwed mothers, prostitution, drug addiction, serial killings, a Jewish protagonist and a bi-racial protagonist. If you consider your own work through this distorted perception, it's easy to see how a less diverse, open mind can twist your story to fit their profile for banning.


If "The 1619 Project," by Nikole Hannah-Jones, a bestseller about slavery in America, can become the most targeted book in America, then it is easy to imagine that we can all suffer such a fate.


According to a recent Harvard University study, students spend twenty percent of their time in school. The content of school time should reflect the rest of their world, not someone else's political agenda. Children should be as free to engage in uncensored reading as they do in engaging in social media and social activities. As writers, parents, and readers, we have an obligation to protect our First Amendment rights for future generations. The books our children read should not be weaponized or become political footballs. We learn about ourselves through what we read, and a more diverse, inclusive reading list encourages a more educated, equitable, and inclusive society.


What action can writers take? We should not wait until the battle has advanced to the point of no return, limiting our student's rights to free access to books and knowledge. Report censorship to the American Library Association. They are strong advocates for protecting books from censorship, maintain a database of incidents and challenged materials (330 reported last fall), and supply librarians with materials necessary to address censorship issues. For more information, visit https://www.ala.org/advocacy/bbooks.


The Authors Guild is another resource for advocacy on free speech, by encouraging a National Letter-Writing Campaign to school boards, lawmakers and newspapers, and maintaining the Freedom of Expression watch list. They recently launched a Banned Books Club, a #unitedagainstbannedbooks campaign, and www.unitedagainstbannedbooks.org. For more information on combating censorship, visit www.authorsguild.org.


As you can tell, this issue disturbs both the lawyer and the writer inside me. Book banning is an attack on our livelihood and our sensibilities. I hope this essay will energize you to take action on this attack on the First Amendment, along with other recent attempts to thwart our constitutional rights and case precedents. If we are told what we can't read, or told what we can't do with our bodies, then Bradbury's "Fahrenheit 451" and Atwood's "The Handmaiden's Tale" have transmuted from fiction to reality.


You may not have my legal superpower, but together as writers, we possess the power to protect our constitutional rights.

 

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A Two Minute Legal Tip from The Writer's Law School

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Oh, Pooh! What do we do now?


 

On January 1st of each year, a new crop of artistic works, such as movies, books, poems and music, enter the Public Domain. This means that anyone can use the material contained within the public domain work without having to obtain permission of the copyright owner or pay a royalty, because the copyright has expired. Under the U.S. Copyright Law, the owners right to copy, distribute, display and control derivative rights no longer exists.


In 2022, works created in 1926 entered the public domain, with Ernest Hemingway, Agatha Christie and Felix Salton taking a hit. Included within this auspicious group is one of the most valuable franchises of all time-WINNIE THE POOH! A. A. Milne's classic children's tale of the Hundred-Acre Wood was published in 1926, and included appearances by the lovable Winnie-the-Pooh, Piglet, Eeyore, Rabbit, Kanga, Roo, Owl and Christopher Robin. His hopping pal Tigger was not introduced until 1928, so he's still protected by the copyright laws.


We all know that Disney licensed Pooh's rights from the Slesinger family, which purchased the rights from the Milne estate. Subsequently, Disney turned the cuddly bear into a franchise juggernaut. It is reported by Statisca that in 2021, Pooh ranked Number 3 in the top-grossing media franchises, after Pokemon ($100M) and Hello Kitty ($84.5M), and he's tied with another Disney icon Mickey Mouse ($80.3M).


The question arises as to what are the licensing rightholder's (Disney's) legal rights when the copyright on the underlying material has expired and has entered the public domain. Under the law, Disney only possesses rights to any new material which it contributed to the work known as "derivative rights." Those rights are secondary to the original Pooh material. In the instance of a book like Winnie-the-Pooh, the derivative works could be movies, songs, coloring books, or plays based upon the original copywritten material.


Therefore, because of the public domain, anyone can now use the original illustrations of E. H. Shepard and story contained in Winnie-the-Pooh, or reprint the original books, or create new art or stories based upon the original story. Keep in mind that Disney retains the copyrights on later books and movies, including Tigger, as well as the trademarks on a variety of Pooh products.


What happens when trademarks and copyrights overlap so that they cover the same material? Although it may be confusing, the distinction between the two rights is that copyrights protects artistic works and trademarks protects commercial products. Parenthetically, patents protect scientific and manufacturing innovations. To our point, a trademark is a logo that serves to brand a product, like Oreo Cookies, Quaker Oats, Mickey Mouse, and yes, Winnie-the-Pooh. The U.S Supreme Court has held that trademarks cannot be used to artificially extend the life of an expired copyright, so where does that leave poor Pooh?


The answer is complicated. There is a difference between using Pooh as a "brand identifier" as opposed to him appearing in a book or movie or as a merely decorative image on a product. So long as there is no confusion in the marketplace that the new Pooh products are manufactured by you, and not products licensed by Disney, there shouldn't be a problem. Go ahead and put Pooh on a t-shirt and wear him proudly. Just make sure that the public knows that you aren't holding yourself out as being part of Disney's clothing line.


However, we are in new, developing territory with Pooh Bear. We can expect the copyright-trademark quandary to intensify as the cartoon "Steam Boat Willie," the ancestor of Mickey Mouse, enters the public domain in 2024. Some very interesting copyright law will develop as we witness how far Disney will go to protect it's intellectual property.


In conclusion, as writers, we are free to retell the tale of Pooh and his friends using the original plot, dialogue and characters, or we can create our own new works or creative expressions. Let Pooh spark our creative juices. The public domain provides us with license to do so. However, do tread lightly when using Pooh, Eeyore or Piglet on the mass production of pajamas, lunchboxes and backpacks, because Disney may be watching!
 

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The New Small Claims Procedure: Get on the CASE

 

       We all think of December's $1.4 Trillion COVID relief bill as extending unemployment benefits, the Paycheck Protection Program and assorted other political pet projects designed to boost the economy during the pandemic. But, did you know that buried within the 5900 pages of the bill, there's special relief for writers and artists? Unfortunately, it's not a stimulus check, but it's something better – protecting yoru valuable copyrights.

       The "Copyright Alternative in Small-Claims Enforcement (CASE) Act" was eacted to establish a copyright small claims system that allows copyright creators, such as authors, to take action against infringers on a smaller scale than filing expensive lawsuits with pricey lawyers in federal court. The idea for small claims copyright relief has been kicking around in Congress since 2003, with no luck. Finally, in 2019, the CASE bill was passed by the House and sent to the Senate, where it stalled, until it's miraculous inclusion in the COVID relief bill.

       What is CASE and how does it work?

       Under the Copyright law, once an original book is written, the author is automatically entitled to certain protections of their work, including the right to reproduce, prepare derivations, distribute copies, and distribute the work for a specific period set forth in the statute. (Generally, life of the author plus seventy years.) If someone violates those ownership rights, or uses the work without the author's permission, the author is entitled to seek relief in the United States federal courts.

       Before CASE, this was a lengthy and expensive proposition. For example, to commence copyright litigation in the Eastern District of New York Federal District Court, authors faced fees of $402.00 for court filing fees, $49.00 for miscellaneous filing fees, and $45.00 for a copyright registration fee, which is a prerequisite to commencing copyright litigation, totaling $496.00. Additionally, there would be attorney's fee, which could skyrocket the costs well into five figures, making the enforcement of an author's copyrights cost prohibitive.

       Examples of juicy literary lawsuits include: Harper Lee versus Samuel Pinkus – Lee claimed she was duped into signing her novel's copyright over to her literary agent Samuel Pinkus, after suffering a stroke in 2007. She regained those rights, but had to sue Pinkus for the royalties he continued to collect. J.D. Salinger vs. John David California – California created a parody of Holden Caulfield escaping from a New York City retirement home. Not thinking the idea at all funny, Salinger sued him for infringement, and California yielded. Even J. K. Rowling has found herself both prosecuting and defending numerous copyright claims. Where the stakes are high, federal courts and high-priced lawyers offer the clout necessary to protect Scout, Holden Caulfield, Harry Potter and their authors.

       For the rest of us, CASE creates a new page of protection for authors and other artists through an economical alternative dispute resolution forum. It creates a Copyright Claims Board (CCB), a three-officer tribunal, to hear claims for monetary damages of less than $30,000.00. The officers are appointed by the Library of Congress and are required to be individuals with experience in the evaluation, litigation, and adjudication of copyright claims.        The CCB is given broad powers including dismissing or refusing claims, awarding damages, issuing cease-and-desist agreements, and awarding attorney's fees (to a maximum of $5,000.00).

As a further cost-saving measure, an author may choose to represent themself before the tribunal, or hire an attorney. However, to file a claim, an author must have filed for copyright registration or be the holder of a copyright registration certificate. This is prima facie evidence that the author is the copyright holder and insures to the CCB that the author has standing to bring the claim for infringement. The filing of a case before the CCB is voluntary, and parties can opt-out of the process once the claim is filed, forcing an author or artist to proceed to litigate in court instead. Decision of the CCB can also be appealed to the federal courts.

       There's more good news! If the stakes are still to high, there will also be an expedited procedure for claims of less than $5,000.00.

       The new law is truly a CASE of first impression. At present, the Copyright Office is ramping up the CCB so they are not accepting any claims at this time. Do not fear, an author has three years from the date of infringement to file their claim.

       Since a majority of the copyright infringement cases in the Untied States are of relatively lower value than those of Harper Lee and J. K. Rowling, the small claims system will allow authors alternatives to protecting their rights in a swift and economical fashion.         

       Further information about Copyrights, CASE, the CCB, and whether your claim is eligible, can be found at Copyright.gov.

 

 

 

 

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Can COVID 19 infect your Publishing Deal?

Going Viral: Force Majeure and COVID 19


Originally in this month's column, I had intended to examine some of the key provisions of a publishing agreement, but overnight our world seemed to change. Topics such as royalties, subsidiary rights, the advance and author's input regarding book title and artwork will have to wait for another time.


As a nation, we're not dwelling on the big national issues like the Presidential election, the environment and education. Instead, we're focused on a microscopic organism that is threatening our country and the world.


Similarly, I'd like to draw to your attention an often overlooked, boilerplate provision that appears in most contracts - leases, house purchase contracts, bank loans, manufacturing contracts, etc. called Force Majeure. Since we are writers, I'm going to zero in on it's application to publishing agreements, and how the effects of this obscure paragraph may linger longer than the pandemic.


In March 2020, the Authors Guild updated their Model Trade Book Contract for the first time in a decade in an attempt to remove contractual biases against authors. Among other things, they suggested subtle changes to the Publication Section of publishing agreements, which deals with such topics as acceptance of work for publication, contract termination by the Publishing Company for the Author's failure to submit the manuscript or termination by the Author for non-publication of the manuscript by the company.


They recommend the insertion of the following language in that section:
"Publisher's failure to Publish or cause publication within the time period provided in this Section 9 will not be deemed to be a material breach of this Agreement (and Author shall not be entitled to any of the remedies set forth above) if the failure (i) is permitted by any provision of this Agreement; (ii) results from any business decision made by Publisher with the prior written approval of Author; or (iii) is attributable to strikes, war, governmental restrictions, fires, natural disasters, acts of God, or any other cause beyond Publisher's reasonable control for the time covered by the conditions, and in no event for more than 6 months past the original publication date."


The last subsection of this article, (iii), is called the Force Majeure provision. This legal concept dates back to the Roman times, and recognized that certain unforeseeable events may render the performance of an agreement impracticable. In the modern publishing world, and in the context of the current world health crisis, this provision has long lasting, widespread implications for an Author.


Force Majeure releases Publishers from publishing your novel in a timely fashion as otherwise agreed to in the contract between the parties. Generally, the standard contract provides that a Publisher shall publish the work within 12 to 18 months after acceptance of the manuscript. Often there is no deadline for the release of an audiobook or foreign edition, but some authors insert a reversion of those rights if the Publisher does not use them within two years of the initial publication of the book.


It is unprecedented that a virus could be the impetus for declaring Force Majeure, but COVID 19 is not your common cold. It is quarantining cities, overwhelming hospitals and leaving streets, stores and workplaces vacant, to say the least. It is a nightmare that we are all living with as best we can, with the hope that it will soon be over.


If a Publisher invokes the Force Majeure clause claiming that COVID 19 prevents immediate publication, they will be entitled to delay publication for an additional six months, extending the time from manuscript acceptance to bookshelf to a period of up to two years. For several reasons, the book may not be published at all or at least not in a print edition. At the present time, publishers like Simon and Schuster, are delaying their scheduled releases. Publisher's Weeklyhas compiled a list of over seven hundred titles that have been delayed due to COVID-19. Included in that list is Stephen King's long anticipated "Under the Dome" which was pushed back until Christmas Eve, when only the Ebook will go on sale at the same price as if it were in paper - $35.00!


According to Publisher's Weekly, presently there is a boom in all formats, especially Ebooks, as readers hunger to fill the void, and empty time, in their lives. These digital and audio formats are also easier, quicker and cheaper to produce, and easy for the reader to purchase and download with the click of a button. However, with the scale of the epidemic, government lockdowns and the closures of bookstores and other distribution channels, the future of book buying appears to be uncertain.

 

This uncertainty may be factored into a publisher's decision to apply Force Majeure.


What steps can Authors take?


While most contracts award Force Majeure to the Publisher, it is noteworthy that the provision is not mutual. In other words, there is no Force Majeure favoring the Author. An Author can be held to the contractual deadlines for submitting their manuscript to the Publisher during a crisis, while a Publisher is not similarly bound to publish. It would be prudent to negotiate a provision extending the Author's delivery and editing deadlines for the same Force Majeurereasons as given to the Publisher. Additionally, a provision should be inserted that any Publisher delay cannot exceed six months beyond the original publication date.
Further, that if publication does not occur after the expiration of the six-month Force Majeure period, and after Author's has demanded publication in writing, that the publishing company forfeits its right to publish the work. Then, the Author should have the right to terminate the agreement, recover all rights granted and retain the full advance.


Clearly, what is good for the Publisher is good for the Author.


If you presently have a book pending publication, discuss this wrinkle with your agent or your publishing company. With a small press, you have a direct line to the editors and publisher, so have a frank discussion with them about their plans regarding your book. Communication is key, so keep the dialogue open and understanding about both sides of the issue to achieve a goal that is in everyone's best interests. After all, they've invested in you and your manuscript, and will have no income without publishing your book. Suggest digital format releases as a way to keep the book on schedule.


In the grand scheme of life, and while we are worried about our friends and families, our jobs, our towns, first responders, our medical community, the economy and our country, the Force Majeure provision of a publishing agreement may seem trivial. However, as writers, our joy and our livelihood exist to share our stories with the world. And without publication, there are no royalties and no income. Also, readers depend upon us to entertain them, spark their imaginations and transport them to faraway places and times, which are dearly needed in distressing times like these.

         
Moving forward, writers should beware that even the most obscure contractual provisions can have lasting, unexpected results, and take heed. Make sure that your contract is reviewed by a lawyer prior to signing it and don't forget to ask for a simple few changes to level the playing field.


To keep abreast of the latest publishing news, special offers, events and discounts, Publisher's Weekly is offering a free e-subscription during the COVID crisis at www.publishersweekly.com. Also, The Authors Guild has compiled a guide to help authors find economic relief at www.authorsguild.com.


Remember, to think positive. We're all in this together.
 

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The Author- Agent Agreement


Springtime is not only the season of robins, daffodils, longer days and baseball, it's the beginning of the writer conference season. As baseball pitchers wind up to blast the ball across home plate, many writers will also be pitching their hearts out at to editors and agents at lightening speed.


To all of you preparing to pitch, I salute you. Like baseball, your pitching may consist of strikeouts and foul balls. However, all you need is one home run. We all know that a writer only needs one agent to read their manuscript, say "YES!" and offer representation. (We can all hear the crowd roaring from the grandstands.)


Great! Fantastic! What happens next? Before your new agent can start pitching your book to publishers, there are a few details that must be nailed down. Namely, there's the author-agent contract (Agency Agreement) to negotiate and sign.


With hearts thumping wildly in their chests, most writers would be so excited that they'd sign anything put before them – after all, this is the dream of a lifetime. But, caution must not be thrown to the wind. Both parties, the writer and the agent, should have a complete understanding of their respective rights, obligations and duties before they can move forward down the road to publication.


"DANGER! WILL ROBINSON!"


It is not my intention to burst anyone's bubble, in fact, the opposite. However, I do feel like the Robot in Netflix's reboot of "Lost in Space" when I shout "Danger – Will Robinson!"


The most important thing to remember is that when you sign the Agency Agreement, you are executing a document that will determine your writing life for a certain amount of time. You are establishing a brand new relationship with a person who will ultimately control your career and your destiny.


It should be kept in mind that contracts are written not out of distrust, but to codify the trust between you and your agent. An Agency Agreement will help avoid any misunderstandings that can arise during your relationship. The first step is - do your due diligence; check out the agent. The Association of Artist's Representatives is a professional organization of over 400 agents who represent literary and dramatic writers, http://www.aaronline.org. Their members subscribe to a Canon of Ethics that holds each member to the highest standards, requiring that they place the client's interest above their own and to avoid any conflict of interest. And never, ever, pay a "reading fee" to an agent.


Don't believe that you will lose the deal simply because you want certain contract points clarified. In fact, asking pertinent questions reflects knowledge. A reputable agent will respect you, a scrupulous one will not. While each Agency Agreement will be specific to the particular author and their circumstances, there are certain key elements, which are or should be included in the Agency Agreement to protect your interests. The following is a brief list of points that demand your attention before you sign on the dotted line.


SCOPE OF WORK


The first question that you should ask yourself is what works are covered by the Agent Agreement? Does it cover your entire body of work or only new works? Remember that if your agent sells your manuscript they are entitled to a commission ad infinitum. Make sure that the contract is limited to new works, especially if you have previously published or self-published works.


EXCLUSIVITY

 

When you sign the Agency Agreement, you are granting the agent an "exclusive right" to sell or license a particular work anywhere in the world. Among other things, this includes the right to appointment a sub-agent for foreign rights or non-publishing rights like movies or dramatic works.


Be forewarned, though. When you grant your agent an exclusive right to sell your work, it can hamstring any actions you independently take to sell your work. The perfect example would be if you pitch an editor at a conference and they subsequently purchase your work, your agent may have a claim for a commission if the sale occurs during the term of their representation. Seems unfair, right? To avoid litigation, insert a provision excluding author-initiated sales. This should protect you in the event of such an occurrence.

TERM


How long does the contact last? Various scenarios can apply to the length of the Agency Agreement. For example, the contract can be cancelled if no sale occurs within X number of months, or the contract can set forth a specific amount of time such as one year, or it can be an annual contract, automatically renewable unless cancelled by either party within 60 days before the anniversary of the agreement.


Since issues can arise when manuscript is sold shortly after the termination of the Agency Agreement, agents often include a provision that if the book is sold 90 to 180 days after the termination of the agreement or the sale occurs as the result of negotiations that occurred prior to termination, then the agent is entitled to their commission. If this provision is inserted in the Agency Agreement, be sure to require that the agent supplies a list of publishing houses where the manuscript has been submitted. You don't want both your old and new agent to be entitled to duplicate commissions for the same work.


COMMISSION


The standard in the industry for domestic book publishing and performance rights is 15% of the gross amount payable to the author. The commission on foreign rights is 20%. These rates are generally non-negotiable.


Remember, the publisher remits royalties directly to the agent. The agent will then deduct their expenses (photocopies, postage, etc.) from the proceeds, and will remit the balance to the author. Accordingly, the contract should provide: that the agent will send the money to author within 10 days of receiving the royalties, the funds will be on deposit in the firm's client's trust account, and the author will receive an accounting of the monies and royalty statements. Further that upon the termination of the Agency Agreement, the author and agent will be paid directly by the publisher. Also, be sure to require that the agent obtain permission from you for expenses exceeding a certain amount. You don't want any surprises for Fed Ex shipping expenses to China.


NO POWER OF ATTORNEY


Do not permit the agent to sign any documents on your behalf. They are your agent, not your power of attorney. You want to review every shred of paper related to your work, especially the publishing agreement and the movie option.


ZIPPER CLAUSES


To sum up the Agency Agreement, there are a few final recommendations. First, agree to submit any contractual disputes to the American Arbitration Association because it's cheaper than litigation. Second, remove any Assignment Provision as you don't want your Agency Agreement assigned to another literary agency without your approval. Also, add a provision that the agreement is cancelled in the event of the death, disability or bankruptcy of the agency or agent. From personal experience, I can attest you that you don't want to married to an agency that is going down the tubes. My final suggestion is that it doesn't hurt to have a lawyer take a quick peek at the Agency Agreement.


Armed with these tips, you will be in charge of your career and in control of your destiny as a soon-to-be-published author.

 

Congratulations! You're no longer a free agent! It's time to sign on the dotted line and best of luck! Play ball!

 

This article was previously published in the March 2020 issue of InSinC, the Quarterly newsletter of Sister In Crime.

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Where there's a will!


Death is a grizzly matter. But, let's face it, as mystery writers and crime writers death is one of our most popular inciting incidents. There's nothing that pits one family member against another quicker than an inheritance from Grandma or Dad. Whether it's money, real property, artwork, a business, a European title or even the family dog, there is no shortage of plots describing the clash over assets belonging to the previous generation. Jane Austin's Emma, Sense and Sensibility, Dicken's Bleak House, PD James', A Certain Justice, Louise Penny's Kingdom of the Blind, and Robert Galbraith's Lethal White are prime literary examples of the dog-eat-dog infighting over a valuable estate.


Those of us flirting with Medicare will remember how, from 1979 to 1991, Jock Ewing's sons, J.R., Bobby and Gary, repeatedly resorted to fisticuffs over the control of daddy's Ewing Oil dynasty in the TV show Dallas. For those of a more tender age, the HBO phenomenon Succession is drawn from the real life machinations of the Rubert Murdoch clan to control the News Corp media empire.


This article will explore the wonderful world of inheritance to help your murderous estate plotlines ring true when the knives, the guns and the arsenic come out. And we'll examine what happens to the family's assets after the body has been buried.


What is a will?


A will is a document that expresses the manner is which a person desires their estate to be managed or divided after they die. In New York, two disinterested parties, who sign also affidavits acknowledging that they witnessed the will signing, must witness a will. To probate the estate, the will and the affidavits must be filed with the Probate Court.


I don't want give the impression that I'm obsessed with the Queen of Soul, Aretha Franklin, but her life and death are still making headlines and serve as the perfect example of how a family can breed divisiveness over a "money grab" of mama's estate.

 

When Aretha died in August 2018, her family and business associates presumed that she didn't leave behind a will expressing her wishes for the distribution of her $80M estate. Her "intestate" estate, an estate without a will, was submitted to Michigan's Oakland County Probate Court and her neutral niece was appointed as the administrator upon the consent of her family.

 

However, in May 2019, three "wills" were discovered in her Detroit-area home. One, dated March 2014, was found inside a spiral notebook under a sofa cushion and two, dated March 2010, were discovered in a locked cabinet. The Probate court has been asked to rule whether the three wills were valid, and the contentious litigation is expected to continue for some time.


Other famous disgruntled heirs include Julian Lennon, the first born son of John Lennon was left out of his father's will and only given a trust fund created at the time his parent's divorced, Jimi Hendrix's brother, Leon, who claimed a share of his brother's estate, and Anna Nicole Smith, who wasn't left a dime of her billionaire husband, J. Howard Marshall's, estate.


Why does the validity of a will make a difference?


Under the law when a person dies without a will, there is a codified inheritance chart as to who is entitled to receive the estate. Assuming that an unmarried Aretha died "intestate," her surviving heirs - her four sons- would equally share in the estate under the law. Any newly discovered will would supersede the intestate distribution, requiring the assets to be divided as per Aretha's specific wishes. In Aretha's case, believing there was no will, the sons had no objection to their neutral cousin managing the estate, however, the 2014 will designated her son, Kecalf, to serve as representative ("executor") for the estate. This conflict is just the tip of the iceberg, as the Michigan court authorized a handwriting expert to authenticate the will.


Even before the authenticity is established, there are disputes over Aretha's $80M estate. Particularly, the later will does not name her son Clarence as a beneficiary, and the brothers have challenged Kecalf's ability to serve as the executor.


Handwritten Wishes


Aretha's case also raises the question as to whether handwritten wills are valid. In New York, a handwritten ("Holographic") or verbal ("Nuncupative") will only be recognized as valid under extremely limited circumstances (EPTL 3-2.2). A serviceman must make these unusual wills during an armed conflict. The fact is that unless a serviceman is expressing his last wishes before his death, there is no such animal as a "deathbed" will, unless it is in writing.


Michigan's laws are different. A holographic will must be in the decedent's handwriting, intended to be their final will, and must be signed and dated. However, if the terms of the will are unclear or the handwriting is not authenticated, the will could be thrown out. Numerous things can go awry when someone handwrites their own will, and the rules change from state to state.
 
No will? No way?


Above I referred to someone dying "intestate," dying without a will, which is a fairly common occurrence. Not everyone desires to face their mortality by signing away their assets to future generations. It is questionable as to whether Aretha did.


I also mentioned New York's Estate, Powers and Trust Law (Article 4) sets out a laundry list of distributees who receive an estate in such a situation. If a person is survived by a spouse and children, the property is divided between them. If there are no children, then everything goes to the surviving spouse, and similarly if there is no spouse, then the property is equally divided between the children. Basically, the distribution order is as you would think it would be when you scale the family tree: spouse, children, grandchildren, parents, siblings, grandparents, aunts/uncles, etc. Sadly if there are no heirs, the property "escheats" or reverts to the state coffers.


I once had a situation where a very wealthy man died without a will, and my client, his wife, was in the process of divorcing him for his numerous misdeeds. As the divorce had not been finalized before his death, his wife inherited his entire estate as they had no children. While that outcome may seem unfair, the man's only living relative was his wealthy, elderly mother, who clearly didn't need the money. Frankly, the wife had tolerated her husband's shenanigans for years and in my book, she deserved the estate as battle pay.


Who's Kidding?


Another interesting question addresses who qualifies as a "child" under the estate laws. In order for a child to inherit, there must a legal parent-child relationship between the child and the parent. To qualify as a child, he or she must: be born during parent's life or after death of parent in a legitimate marriage, have had the paternity of an illegitimate child of a male established, or be an adopted children. Neither stepchildren, wards nor foster children inherit as there is no relationship by blood to the deceased.


A tasty motive for Murder


Not only do these basic estate issues give rise to a broad range of family issues that are ripe motives for murder, blackmail, estate challenges and theft, they also have practical implications to our own lives. Failing to settle our affairs during our lifetimes can create future problems for those we leave behind. It is recommended that you consult an attorney in your jurisdiction to draft a will so that your spouse, your children and grandchildren are protected from future uncertainty and contests.

 

Further information on wills and estates is available at New York State Office of Court Administration, https://nycourts.gov/CourtHelp/WhenSomeoneDies/index.shtml or the American Bar Association, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/


Remember, where there's a will, there's peace of mind for you, your family and your readers.
 

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Keeping Secrets: Privileged Communications

 
In these days of electronic eavesdropping by Alexa, text messages, GPS tracking systems in our cars and cellphones, and CCTV, exactly who can we trust with our secrets? Certainly, not technology. The true keepers of secrets are, in fact, real live people who, under the law, are prohibited from spilling secrets unless given clear permission to do so. In this article, we'll examine who is required to keep confidential information, and ways to incorporate secrecy into your manuscripts.


TAKING THE FIFTH


The most famous and basic protection for keeping secrets is the Fifth Amendment of the U. S. Constitution, which provides that no person shall be required to give witness against themselves. Some of us are old enough to remember the O.J. Simpson murder trial of 1995, where the defense called Detective Mark Furhman to the stand and questioned whether he'd ever falsified police records. The tactic was designed to discredit Furhman's testimony regarding his investigation of Simpson's commission of the murders of his wife and her lover, Nicole Brown Simpson and Ron Goldman. Furhman leaned over to his attorney when asked that particular question and responded : "I wish to assert my Fifth Amendment privilege."  


 "Taking the Fifth" is an extremely powerful protection for a defendant in a criminal case against self-incrimination, as the shield blankets all of the defendant's testimony, not just one or more questions. However, for a witness in a case, the coverage is not so broad. While they are entitled to plead "the fifth," they can be forced by subpoena to give testimony. Any incriminating statements set up the potential for prosecution of any crime revealed in their testimony unless the law provides immunity, or their wise counsel has negotiated immunity or a reduced sentence in exchange for the testimony. Think about the recent headlines featuring Michael Cohen's testimony during the Mueller investigation.


PILLOW TALK


What about your character's spouse? Can he dish on all those dirty little secrets she's whispered in the night or in her sleep? Your character can sleep tight – the answer is NO! In both civil and criminal cases, neither the husband or wife can testify against the other whether its a state or federal case, provided they're legally married. However, if the crime can be proven with evidence independent of the spouse's testimony, then your character will be looking at time in the big house.


If you're a fan of Bravo's The Real Housewives of New Jersey, you'll recall the plight of Teresa Guidice. She was married to an Italian construction worker, Joe Guidice, and after a 2009 bankruptcy was cancelled at the last minute, the Guidices were charged with 41counts of mail, wire, bankruptcy and bank fraud in connection with their lying to banks and illegally squirreling away over $5M during the bankruptcy proceedings. However, neither Guidice spouse could be compelled to give testimony against the other. In this was a situation, independent criminal evidence was available to convict the Guidices without the testimony of either spouse. And wisely, their attorney brokered a plea deal where each would serve time separately so one parent could stay with their children. No doubt their marriage was strained, especially with Joe's impending deportation to Italy.


DOCTOR, DOCTOR, MR. MD.


If your protagonist (Samantha) stands to inherit the entire estate from her billionaire philanthropist mother, who disinherited all of her other children on her deathbed, Samantha may be in for a tough time. Poor Sam can expect her sibs to challenge the validity of the will by claiming: Mummy dearest lacked all of her marbles at the time that she executed her Last Will and Testament moments before she inhaled her last breath, and b) Sam exercised undue influence over Mummy enticing the changing of the will. Because the sibs are objecting to the probate of the will, they bear the burden of proving their mother's incompetence and undue influence. Thanks to the medical privileges existing under the law, all the kids can expect a long, drawn-out and expensive battle for mummy's money.


We all know that HIPAA (Health Insurance Portability and Accountability Act of 1996) is the Fort Knox of medical information. https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html. No one is entitled to access to medical records unless the patient gives permission.  Similarly, physicians, dentists, podiatrists, chiropractors and nurses are prohibited from disclosing medical information unless the patient waives that privilege.
However, New York has an interesting twist on this privilege in the case of a deceased person when it relates to a will contest or other litigation connected to the decedent. A physician or nurse must disclose any information as the mental and physical condition of a deceased patient covered by their privilege except when the information would disgrace the memory of the person. (CPLR 4504(c)) However, waivers from the family must be obtained or there must be no objection to the disclosure.


In our scenario, there is no incentive for Sam to agree to release any medical records, obtain a physician's testimony or besmirch her late mother, whose name is embellished on hospital wings, theaters, libraries and university buildings. Again, without Sam's cooperation, the sibs will be required to provide independent proof of incompetence to invalidate the will. The sibs must rely upon staff, mummy's erratic behavior and business dealings to support their claim of lunacy. They must also prove that Sam's actions toward their mother – threats, lies, cajoling, bribery, coercion, abuse – were the cause of their disinheritance.


OTHER CONFIDANTES


In New York, confidential communications are also extended to: clergy or ministers of any religion, psychologists, social worker, library records and rape crisis counselors. (CPLR 4505-4510). None of these individuals, or their employees, can disclose a communication made by a client.


ATTORNEY CLIENT PRIVILEGE


I've saved the best (an my personal favorite) for the last. Parenthetically, I have taken this sacrosanct privilege to heart every day of my life as an attorney and a writer. The law (CPLR 4503) provides that unless a client waives the privilege, an attorney and her employees, shall not disclose client communication or be compelled to disclose same before any agency, legislative body, court or committee, etc.


Not only are attorneys bound to secrecy by the statutory law, the Rule 1.6 of the New York State Rules of Professional Conduct requires that a lawyer shall not knowingly reveal confidential information to the disadvantage of a client or to the advantage of a third person unless the client consents, has implied their consent or disclosure is permitted by the rules. Crime writers are particularly struck with the exceptions that a lawyer may reveal or use confidential information when the lawyer believes it will prevent reasonably certain death or substantial bodily harm, or prevent a client from committing a crime. 


CONCLUSION


In my debut thriller, THE MIDNIGHT CALL, my pregnant protagonist, Jessie Martin, rushes to aid her mentor when he calls and admits that he's just killed someone. As a tactic to dismiss the murder charges, the defense attorney claims that Jessie has violated the attorney-client privilege due her mentor, raising the question as to whether Jessie was acting as a friend or an attorney to her mentor. I'm not giving any spoilers, but in the novel I wanted to examine this ethical dilemma raised as an example that privileges provided by the law are not always black and white.
In order for any privilege to exist, a relationship covered by a privilege must exist. Even though many protected communications are codified in black and white, those rights are subject to interpretation. It is the circumstances of the case, the actions of the parties and the case law that colors the impact or even the existence of a privilege. For example, were the parties legally married? Was the physician at a roadside accident treating the defendant as a patient or a Good Samaritan? Does the social worker who overheard a conversation fall within the cone of secrecy? Was the attorney actually hired by the defendant to represent him? It is reasonable to believe that a client is planning a murder or is importing illegal drugs into the country?


As in THE MIDNIGHT CALL, with a little creativity and legal research, writers can challenge the traditional concept of keeping secrets. By developing compelling plots twists, writers will keep readers on the edges of their seats and screaming for more.

 

This article originally appeared in InSinC, the quarterly newsletter of Sisters-in-Crime, and may not be used without permission.

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