Category Archives: IP Law

Tuesday Five: Julie Flygare

wide-awake-and-dreaming-cover-final-JPEG1-683x1024Julie Flygare is a writer, runner*, yogini, and lawyer (my kind of girl!). While in law school, she was diagnosed with narcolepsy and cataplexy (lawyers: can you imagine?), and chronicles her diagnoses and the aftermath in her memoir,  Wide Awake and Dreaming: A Memoir of NarcolepsyShe quickly found an agent for the book, who sent the manuscript around to all the right editors at all the right imprints. But as many talented writers find, if you’re not a celebrity or Cheryl Strayed, memoir is a particularly competitive and difficult genre in which to publish. Julie, however, knew her story needed to be told, and this book would be her calling card and her entrée into the world of advocacy for her disease. So she self-published, and her experience and motives are the perfect example of why I am actually a big fan of self-publishing (more on that tomorrow). The result? She has ordered numerous reprints of the book and her website has crashed from all the traffic. She is currently a spokesperson for narcolepsy research, and her influence and platform are only growing — with the book (a truly compelling read, by the way) to back it up.

How do you know me?  We went to Boston College Law School together, and had mutual friends who put us in contact directly a few years later when I was going through the book publishing process. You looked over my proposal and my previous agent’s efforts and gave me honest helpful advice for proceeding forward with my book.

Why did you go to law school? I went to law school to study art law. I was an art history major at Brown University and fascinated by intellectual property, international art trade treaties and WW II reparation issues. My father (a lawyer) was influential in this decision as well.

When did you know you wanted to write a memoir? I’ve always loved writing and took a few creative non-fiction writing classes in high school and college. As my experience with narcolepsy evolved, I never thought to write about it. I wanted nothing more than to hide my narcolepsy and erase it from my life.

Graduating from law school, I’d planned to write a different book, based on a law school health law paper I’d written. My law school mentor, Professor Chirba had strongly encouraged me to pursue a career in writing. About a month into learning about the writing and publishing process, I found myself drawn to telling my own story with narcolepsy. Once the idea hit me, there was no turning back. Something clicked, stars aligned – it felt so “right”.

What has been the biggest surprise about self-publishing?  Very few people seem to realize or care that my book is self-published. I was surprised that the current print-on-demand mechanisms make it challenging to mimic the well-planned “book release date”, but once it released, it’s been no stress at all. Of course, it’s harder to get coverage in major magazines and self-published books are ineligible for many book contests – but it’s been so thrilling to get my story out there to the world. Self-publishing was a lot of work, but I am a control freak and so it was nice to maintain control at every step, especially in the book cover process. I am very proud of my final product.

Describe your perfect day.  My perfect day would include giving a presentation at a conference and hosting a book signing afterwards. I get to talk about myself and people clap? It’s still a bit surreal. I love traveling, making people smile and inspiring them to reach for their dreams now – don’t wait!  As a person with narcolepsy, these activities leave me totally exhausted but when I close my eyes to sleep, I know in my heart I’m doing what I love.

*Julie ran the Boston Marathon after her diagnosis. Badass.

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Industry Scoop: E-Book News

Do you read on an iPad or Kindle? Or do you prefer “old-fashioned” paper? Or does it matter? I love reading on my iPad for a number of reasons, including its back-lit function (I can read in bed and let others sleep in the dark) and its portability. Most of all, I love the instant gratification. If I hear about a book I want to read, I go to the iBooks store and download the “Sample”. If and when I’m ready to read it, I download the whole thing. I have spent more on books – hundreds and hundreds of dollars more – since I have become an E-reader than I did previously, when I would wait until the book became available at the library or someone gave me a Barnes & Noble gift card.

Fellow E-reading devotees may be interested in two digital startups that plan to offer monthly fee E-Book subscription services – think Netflix for books. (Source: Jeffrey Trachtenberg in the Wall Street Journal, subscription required.) But will publishers get on board? E-Books tend to be a source of angst for most publishers. On one hand, readers like me have spent more on books than they otherwise would have. On the other hand, E-Books sell for so much less than hard-covers, and if more people are buying E-Books at $9.99 than are buying hard covers at $25.99, a company’s bottom line suffers. Any new development with the selling and pricing of E-Books leads to greater angst, at least until the fear of the unknown is conquered.

Will readers get on board? It’s unclear whether these startups will offer best-sellers or new releases and whether the monthly subscription rate will be low enough for those who are not voracious, book-a-week readers. And if the prices are low enough to attract readers, arguably it is the authors who will suffer a decrease in royalties. (Thus, obviously, agents tend to hate subscription models.)

Another initiative retailers and publishers are trying with E-Books is the “bundling” of E-Books with the purchase of print books – in other words, when you buy a print version of a book, you can also have the E-Book for just a few dollars or, in some cases, for free. Amazon is one such retailer and is calling its service Kindle MatchBook (apparently only HarperCollins has agreed to participate in the Amazon service, though other publishers have tried other types of bundling). For E-reading fans, this could be a great idea: you love having the hard copy on your shelf, or to underline, but when you travel you want to take only your Kindle.

Of course, the agent has to ask: does this deprive authors of the 25% E-Book royalty and the 7-15% print royalty they would receive if both books were bought? Or is this a great idea in that it would boost interest in print sales and the industry in general?

There are still some issues to be worked out, the most technical of which concern the large and controversial (see: United States v. Apple, Inc. et. al.) agency model of E-Book pricing, which are described in this Publisher’s Weekly article.

Personally, I’m a fan of E-Books and their place in the industry – I heard a great story on the TED Radio Hour over the weekend about a TED talk Nicholas Negroponte gave in 1984 in which he essentially predicted the ubiquity of E-readers. There will always be print books, I suppose (though Negroponte seems to think not). But because E-Books cost far less to produce, ship and store, it seems to me at some point the industry will reach a state of equilibrium so that more people are buying books at $9.99 with a greater net profit to publishers than they have from readers buying hardcovers at $25.99.

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Advice (FWIW): Copyright Registration

In addition to being an agent, I am a lawyer. I was a lawyer first, actually. And before I was a publishing lawyer, I was a tax lawyer. At a huge corporate firm. (Really!) Now my practice covers most areas of intellectual property law, including trademarks and copyright, publishing agreements, and entertainment law. It is a nice complement to being an agent, as I can spot certain problems in advance (such as: “No, you can not use the name of the Senator with whom you had an affair in your memoir, lest you want an invasion of privacy suit” — true story). I can also advise writers on the ins and outs of copyright.

Most people probably know that if you create a work of art, you own the rights to that art — and, specifically, the right to make money off that art. What is confusing, however, is what “copyrighting a work” means, what actually does for you, and how to do it.

In prior years, publication with notice (the “(c)” symbol) was mandatory for a writer secure copyright and thus to assert any copyright ownership. Now, your copyright is extant as soon as you put pen to paper or record a note. When you “copyright a work”, you are not bestowing copyright on it because the copyright is inherent in it. You have copyright to your work even if you don’t register. If someone steals your work you can still sue them for actual damages (meaning, how much money you lost and how much money they made off your work). But by registering the copyright to your work, if you sue for infringement you may also be eligible for statutory damages and attorneys’ fees.

So why do we still put a copyright (c) symbol on the things? The copyright symbol simply puts people on notice so that they cannot in their defense claim inadvertent infringement. If you don’t have it, your work is still protected — although it used to be required for protection, and this is the source of some confusion.

OK, so then why do you need to register with the US Copyright Office at all? Certain monetary damages — attorney’s fees and statutory damages — that you might be owed because of someone else’s infringement accrue only from the date it is formally registered. I have seen artists whose work was not properly registered lose out on years of potential damages because they only properly register the work with the copyright office when they first learn of the infringement.

I would argue that in this digital age when material can be disseminated so quickly and widely, it is more important to formally register your work with the U.S. Copyright office. If you publish a book, the publisher will do that for you — it is (or should be!) a part of every publishing contract. (A publishing contract is in essence a copyright license from you, the copyright owner, to the Publisher, allowing them to distribute and make money off your work.) But if you are self-publishing or you have an unpublished work that you are circulating widely, it might be a good idea to go on to the U.S. Copyright Office website and register the work, which you can do electronically (for $35).

What if you have a blog? First and foremost, you should have a clear copyright notice at the bottom of every page. You’ll see on this blog that I do not, but that’s because I can’t figure out how to do it! (Can someone help me?) If I did, it would look like this: Copyright (c) Kathryn Beaumont, 2013. Remember, this doesn’t mean the copyright is registered, per se, it just means that I am putting my readers on notice that they can’t claim that they didn’t know this was my original work. I would also add a Terms of Use page somewhere, which states that if people are reading your blog, then they agree not to x, y, or z (steal your work? Make mean comments? Post comments or work that is copyrighted by others? Steal your photos? Whatever you want…)

Should you also register your blog with the U.S. Copyright Office? If your blog is widely read, has had copyright infringers poach from it in the past, or you plan to put it into a book someday, I’d recommend it. Unfortunately the Copyright Office is not clear whether blog postings are that exist online and nowhere else are considered “publications” and, thus, what sort of protection they need to have to allow you to sue and be awarded certain damages. The thinking for some time had been that you were eligible for all damages if you registered the entire contents of your blog and then updated it subsequently every three months — because you have three months after publication to register a work for purposes of statutory damages and attorney’s fees. But if the Copyright Office won’t comment on whether a blog is “published” for these purposes, then the three-month window is sort of arbitrary. With an unpublished work, you can’t sue until it is registered.

So, basically, you can register the contents of your blog once, and then however often makes you feel comfortable (or you want to pay $35) register the chunk of posts since your last registration as a new work.  You would have to create a new registration for the updates as opposed to being allowed to register them as some sort of new derivative of the overall blog registration.

Why should I care about this? I just want to write! Many artists create because they just have to — it’s an innate calling (“Painting is like breathing,” etc.), and thus don’t always think about their work as “property” or as having monetary value. But it does! There is always potential value, so it’s wise to protect it so that when you finally realize that value — even if you think it will never happen — it’s not too late.

NB: What I didn’t cover: copyright damages, what constitutes infringement, or Fair Use. I welcome all thoughts and experiences you have had with copyright registration — particularly blogs. But if you have specific questions as they relate to your own work, I can’t answer them here.

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September 12, 2013 · 4:34 pm

It’s Not About the Book

This story is directly in the purview of my profession(s) — oh, how I’d love to be the attorney here (representing the publisher). In a class action suit filed in California, readers of Lance Armstrong’s autobiographies are suing Armstrong and Random House, his publisher, claiming that he tricked readers into buying his books based on a false advertising campaign. While arguably the books are protected by the First Amendment and Armstrong thus had a constitutional right to lie in them (“People don’t always tell the truth in their books,” said his lawyer*), false commercial speech is not protected by the First Amendment. So the issue is: in publicizing his books, did Armstrong engage in unprotected commercial speech?

To which I say to the plaintiffs (who are asking for $5 million in refunds and damages): come on. Are you really that upset that you want your $25.99 back? Arguably it is pretty reprehensible that Armstrong became so wealthy because of his deceit, but to take it to court?

*See, e.g., the “5 Most Ridiculous Lies Ever Published as Non-Fiction.”

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