This past weekend my writing group met at my house. This writing group started seven years ago at a housewarming party for the place I lived before where I live now. At party, some guests and I were talking about how we all wished we were in a writing group but we didn’t know of any. Then we realized we had enough people to form a writing group. My place was nominated because that’s where we were at the time. We’ve been meeting on and off for seven years and we’ve had different venues and members during that time but it’s still going. If you wish you were in a writing group but you’re not in one, you should throw a housewarming party and see if any likely suspects turn up.
At writing group this past weekend, we talked a little bit about writing pace. My groupmates were impressed when I laid down around 1,000 words in a 25-minute writing sprint. I believe anyone who wants to speed up their writing pace can learn this. I managed it over several years using two techniques:
Write a stupid essay like two times each week, you will have no choice but to get fast.
Also, stop caring if the words are any good.
Writing is easy because all the words already exist and you just have to put them in an order that is pleasing to you. It’s like doing a puzzle of the Mona Lisa versus actually painting the Mona Lisa. Some of you are out there doing a 5,000-piece jigsaw puzzle. Personally I’m doing a 60-piece puzzle from the toy store, that’s how I do it so fast. My puzzle was made in China and has a picture of Peppa Pig on it. That is the quality of writing you want to strive for if you want to dazzle your writing group with your impressive speed typistry.
Today’s Shelf Life is about the things you can write and the things you can’t write. This is in response to questions I often see in Facebook groups, writing forums, and Reddit posts wherein writers may ask for advice from publishing industry professionals. The questions may be phrased like this:
Can I include some of the lyrics for “Oh, Pretty Woman” by Van Halen in my novel?
Can I write a novelization of Pretty Woman (1990), the movie?
Can I write about the bad behavior of real people in my memoir without getting in trouble?
Can I write a novel using Bilbo Baggins, Harry Potter, and Barack Obama as characters?
Can I write a novel about a police officer who turns into a carnivorous dinosaur on full moons and is secretly in love with a court stenographer who turns into a herbivorous dinosaur on full moons? Everyone I ask says not to write it because the idea is dumb and bad.
The answer to all of the above is yes, you can do that, except everyone’s favorite song about catcalling was written by Roy Orbison and Bill Dees. In today’s part one I’m going to talk about copyright and intellectual property then dive into the large topic of personal privacy law as it applies to writing and publishing. On Thursday I’ll wrap up with the rest of the privacy stuff and then discuss the other reasons why you might be told you shouldn’t or can’t write your weredinosaur rom com.
There are actually no rules at all about what you can write. You can write anything you want as long as it is for your own personal use. There are laws governing what writing can be published (by whom) and whether that writing can generate profit (and for whom) or not. There are also a lot of realities that are not laws that affect what writing gets published and what writing becomes successful.
But can you write it? You can.
Where the writer’s right to write and publish what they want ends is where the intellectual property rights and copyright of someone else begins; and where another person’s right to privacy begins.
Some of the topics covered in this Shelf Life have been covered in greater depth and detail in previous Shelf Lifes but have not been gathered together in context, so I’ll link out where appropriate. The purpose of having these topics in one Shelf Life is to provide a brief primer to authors, especially to those who intend to self-publish, on where they may need to proceed with caution or revise to remove content that could impinge on the rights of another person.
I often see authors, in the context of these questions (“Can I . . . ?”) cite books they have seen that have these conventions. A popular memoir that revealed all sorts of dirty truths about the famous people involved. Novels that include famous song lyrics. Novelizations of properties they admire, set in fictional worlds and universes they’d like to borrow. The key thing to keep in mind is that the traditional publishing company has copyright lawyers.
When a book is published traditionally, the onus is on the publishing company to ensure that rights and permissions are cleared before a book is published. The publishing company may or may not pay the fees for these permissions and/or assist the author with securing them. I have been the person at the publishing company who calls you and says, “Hey, did you realize you quoted the lyrics for "Karma Chameleon" by Culture Club in their entirety in Chapter 3? You need permission for that or we have to take it out.”
The author in that case, by the way, argued that they did not need permission to quote the entire lyrics for “Karma Chameleon” because they were not quoting Culture Club but actually quoting some schoolkids they overheard singing the Culture Club song. (It was cleared up and the lyrics obviously were removed.)
What I’m getting at is this: First, authors, whether traditionally or self-publishing, probably don’t know all the ins and outs of copyright and other applicable law, but traditionally publishing authors have the knowledge base of the publishing company to keep them out of legal hot water and self-publishing authors do not. Second, it’s the publishing company rather than the author personally who will usually be liable in a lawsuit for copyright infringement or defamation, not only because they are the body that published and profited from the suspect work but also because they have money to go after whereas the author usually does not. Authors who self publish are vulnerable to having suit brought against them directly in the event of copyright violation, defamation, or invasion of privacy in their work.
Copyright and Intellectual Property
So: Can you, the writer, write stories that make use of someone else’s intellectual property, for instance by including song lyrics, or using a famous existing character like Harry Potter, or write a story set in Tolkien’s Middle Earth? Yes—you can write it.
Can you publish it? Dubious. Fanfiction exists in a bit of a legal gray area (read On Fanfic), where in derivative works (which include fanfiction) are protected by copyright law but as long as the fanwriter is not profiting from their fanwork, fanfiction is usually allowed to exist. There are authors who are strongly opposed to fanfiction based on their work and, in order to avoid liability, fanfiction archive sites may refuse to archive fanwritten stories based on their work. Copyright owners may (and often do) choose to look the other way on fanfiction, and some copyright owners even encourage fanworks, but copyright holders do have the right to request removal of fanworks that make use of their intellectual property and can sue if the request is not honored.
Can you profit from work that includes another person’s copyrighted or intellectual property? Definitely not—unless you have secured a license from the rights holder of the intellectual property from which you are drawing. Unless you have explicit, written permission to use someone else’s copyright material, you should not make work including someone else’s copyrighted material available for sale. There is a definite distinction between posting fanfiction for free in an archive like Fanfiction.net versus posting it for sale on Amazon. Selling this type of work is certainly in violation of copyright law and the author of such a work would be unlikely to defend a lawsuit successfully.
Defamation
What about when you write a memoir? People (authors) have a right to freely express themselves; people (subjects) also have a right to privacy. Whose rights come out on top when you’re writing a memoir? Does the author’s right to freedom of expression trump their subject’s right to privacy? Or vice versa?
Under international human rights law, there is a limit to one person’s freedom of expression and opinion where another person’s right to privacy is concerned. People have a legal remedy to defamation, with defamation strictly meaning a statement of fact (ie, not a statement of opinion) that is false and that can injure their reputation. There’s a lot more to defamation law than this but I said “a primer” and I meant it. Defamation in print is also called libel.
A statement is not defamation if it is expressing an opinion (not a fact); if it is true; or if it is not injurious. Whether or not a statement is injurious is often debatable but there are four types of statement that are considered defamation per se (on their own), that is, they are pretty much always considered injurious regardless of context:
Writing that someone has committed a crime.
Writing that someone has a contagious, infectious, or “foul or loathsome” disease.
Writing that someone engaged in serious sexual misconduct.
Writing something harmful about someone’s business, trade, or profession.
You can read more about defamation per se in this excellent Findlaw article. If any of the above things are included in your writing about another person, you should be sure that:
The statement is true.
Or:
The statement is one of opinion and not fact.
Earlier, I discussed the safety net the traditional publisher provides vis a vis rights and permissions. Traditional publishers also vet memoirs closely to ensure they don’t contain statements that could be perceived as defamatory even if ultimately they are not defamation. This is because the publisher does not want to be party to a lawsuit if they can avoid it, even if it’s a lawsuit they could win. Further, a publisher is likely to ask a memoirist to secure signed release forms from living people who are identifiable in the manuscript.
Defamation is only half the story, though. Even if you’re not defaming someone, you could still be invading their privacy. Make sure you tune in on Thursday for a primer on privacy in memoir writing.
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