Writer's Bloc
My SFWA Bulletin Column

Orphans and Trademarks

from The SFWA Bulletin #170, Summer 2006


Copyright and Trademark Law: Good News and Bad

    Technorati is one of the many new services that search blogs for keywords. It is perhaps the largest, claiming nearly 50 million sites. I found a reference to a subject I was researching on the first page of hits. Several references, in fact. And they all were to blogs that had posted the complete, lengthy text of a 1999 article, without, however, any indication of the original author or place of publication. Some of the blogs had comments praising the bloggers for their writing skills!

    Now imagine sieving through the 60,000 or so videos that users post to YouTube every day for copyrighted material. Movie and television studios have an urgent need for squadrons of full-time screeners. It's a growth industry.

    Copyright law lags behind reality. At best, writers groups are nibbling around the edges of changes in the law. One such issue is the problem of orphan works. As Anita Fore, Director of Legal Services of the Authors Guild, defined them in their Spring 2006 Bulletin: "Orphan works are copyright-protected works whose owners are exceptionally difficult or impossible to locate."

    The Copyright Office released a lengthy Report on January 31, 2006. The full report (over 200 pages) can be found at www.copyright.gov/orphan/orphan-report-full.pdf. A half-size version consisting of the main text without appendices is at www.copyright.gov/orphan/orphan-report.pdf.

    Fore's two-paragraph summary is helpful as a first pass in digesting the whole. She lists the Report's major recommendations:

    1) Amend the Copyright Act of 1976 to require that a would-be user perform a reasonably diligent search for the work's owner. If the owner later surfaced and sued, the penalty imposed would be limited to reasonable compensation, not punitive damages, attorney's fees and court costs as are now possible. No monetary relief at all would be required if the use was noncommercial and expeditiously discontinued.

    2) Allow derivative works if the new work features significant creative expression by the user and reasonable compensation to the owner. Injunctions against any use, now possible, would be eliminated.

    3) Do not require users to file public notice of intent to use orphan works, nor pay into an escrow account before use.

    One more piece of legislation of crucial importance to writers is the Trademark Dilution Revision Act. The version of the bill passed by the House "proposed to eliminate protection for references of trademarked words and images in noncommercial speech," according to Michael Gross, also in the Spring 2006 Bulletin. Any mention of a trademarked product, even in fiction, therefore could be liable for trademark dilution under the Lanham Act, which now specifically permits this use. The Senate removed this passage from its version, however. The differing forms of the bill went to a joint conference committee for final action on March 8, 2006, with no further action as of the time of this writing.

    And one additional critical announcement on copyrights. As of July 1, 2006, the Copyright Office raised the rate for "registration of a basic claim in an original work of authorship" to $45, from $30. The complete new fee schedule can be found at www.copyright.gov/fedreg/2006/71fr31089.html.

Judging a Book By Its Cover

    In the April 2006 Roundup Magazine, Richard Wheeler talks about Dorchester's Leisure Books, which appears to be the last profitable mass market Western line still operating. He attributes their success to principles that could and should be readily applied to f&sf books.

    First, they try to get away from "cowboy with a gun" covers, so that at the very least the guns are toted by men in other professions. Wheeler said he has "come to the conclusion that the cowboy-with-a gun covers turn off perhaps a hundred potential readers for every reader they turn on." Couldn't something similar be said for warriors and weapons covers?

    The covers also emphasize the romance of the landscape of the West, the "mysterious and magical West." (Once space also served as a symbol of mystery and magic.) And in practical terms, the covers use more foil and embossing to signal that the novels are important. Moreover, they emphasize the author with bios on their website.

    Readers don't want to feel had by discovering that the story promised by the cover is not present in the words of the book, he said. The cumulative effect of decades of misrepresentation is a toll on readership.

Contact Management System Software

    Since my name is on the mailing list for every writers organization, I regularly get postcards, flyers, brochures, and other announcements about impending books, tours, events, conferences, backyard cookouts, and attempts at world domination. I won't even mention the emails and what they try to convince me to buy.

    What you people need is get your act together, especially if you have a growing fan base who are panting to hear your every word. Eleanor Sullivan wrote about content management system software in the June 2006 InSinC. The one she recommends most highly is the 2006 [not the 2005] version of Act!, exclamation mark theirs, not hers or mine. She said:

      [Act! is] like Outlook on steroids, with powerful features that make group management a breeze, Mail and e-mail templates are built in to simplify group contact and organizing your contacts is extremely easy and flexible.

    Goldmine is as good if not better than Act!, but designed for multi-user environments, she said. Use only if that provision applies to you.

    Which leads me to wonder if Sisters in Crime is using any contact management software to manage the promotions planned for their 20th celebration year. Starting in October, they'll be sending participating bookstores packets of display materials including poster, bookmarks, pencils, booklet of authors, shelf talkers, crime scene tape, and, of course, more, including a pamphlet listing all SinC authors. In March 2007, libraries can get similar packets. Both of the promotions are free to participants. In addition, both independent bookstores and libraries are eligible for $300 grants when SinC authors visit, as long as the $300 is spent on promotion. Bribery! Of course crime writers would think of it. SFWAns: next time you go to a bookstore, promise the owner a ride in your flying car.

    That other crime writing organization, MWA, announced a fascinating program in the May 2006 TTD: Rebound Grants.

      MWA will give six writers who have been dropped by their publishers a grant of $1,000 each.

      This grant money can be used to help writers prepare a proposal for crime fiction, a children's or young adult mystery, or a true crime work.

      You can spend the money on travel for research. It can also go for education, including a death investigator course, private eye training, or a college class.

      A Rebound Grant author does not have to pay back the money if you complete a professional proposal along with proof that it has been submitted to at least six traditional publishing houses. If the proposal is accepted by a traditional publisher, the author must acknowledge the MWA in any book resulting from the grant in the Acknowledgments section.

Ecologically Sound Paper and Ink

    While reading all these magazines I tend to run across the same stories over and over again. Máire Walsh's article in the May-June SCBWI Bulletin hit me like a great new idea must hit an editor. I may have seen earlier articles on environmentally sensitive printing, but I also just watched An Inconvenient Truth and my antennae were tuned for this fine assessment of what's currently possible.

    She suggested that authors talk to publishers (only a very few of whom are currently doing this) about getting books printed on post-consumer recycled paper, paper certified by the Forest Stewardship Council (FSC), or paper made without trees. Post-consumer recycled paper bears a stamp identifying it as such, and is made from stock which has had prior use, such as newspapers or magazines. (Just plain recycled paper is made from leftover scraps in the paper-making process.) FSC-stamped paper "has met stringent requirements which ensure the protection of forests, native people, and positive employee relations in the area where the wood was logged for paper manufacturing." Non-tree paper can be made from hemp, kenaf, cotton, or bamboo.

    A somewhat less stringent request would be to ask for TCF (Totally Chlorine Free) paper (never processed with chlorine) or PCF (Processed Chlorine Free) paper (recycled paper not processed with chlorine the second time through). White dioxin is made and released into wastewater when chlorine is used to bleach paper. Hydrogen peroxide, oxygen, and/or ozone are alternatives for whitening paper without chlorine.

    Soy-based inks are another environmentally-friendly approach. They're less toxic and reduce petroleum consumption, and can be made in the U.S.

    Earlier quality problems with these papers and inks have been solved, although finding the best products for particular applications may take some research.

Some Writers Deserve to Starve

    I don't usually talk how-to in this column, but some titles deserve – demand – mention. Some Writers Deserve to Starve! 31 Brutal Truths about the Publishing Industry is by Elaura Niles, coordinator for the Willamette Writer's Conference. K. J. McWilliams highly recommends it in the May-June 2006 issue of the SCBWI Bulletin, and most reviewers on Amazon agree. I haven't seen the book, but the title is so good it should be adopted as the official SFWA motto.

SF Writers in the News

    Campbell Geesin starts off his "Along Publishers Row" column in the Spring 2006 Authors Guild Bulletin with panicky quotes. One was from David Rosenthal, publisher of Simon & Schuster, noting that nonfiction sales were generally good, but fiction sales were [expletive deleted by Geesin]. The other was from Edward Wyatt, who said that this "continues a trend that began at least four years ago, when, after 9/11, a large segment of readers seemed to give up on fiction…" No wonder Geesin spends most of his time this issue talking about genre.

    Mystery bookstores, e.g. are taking on a role played by others in the sf world, by starting small presses to bring back classic mysteries, reprint first books in series, and publish English imports. "It's the greatest market research you can do to sit in your store and hear what people love," says Otto Penzler of NYC's Mysterious Bookshop. Despite the number of excellent small presses in sf, there is still a need for some of these basics.

    British researchers found that on the weekends after the last two Harry Potter books appeared, admission rates at an Oxford hospitals' emergency room fell by almost half:

      It may therefore be hypothesized that there is a place for a committee of safety-conscious, talented writers who could produce high-quality books for the purpose of injury prevention.

    And George R. R. Martin told PW:

      Given the realities of today's market in science fiction and fantasy, I would suggest that any aspiring writer begin with short stories. Short stories help you learn your craft… and they are still the best way for a young writer to break in, since the magazines are always hungry for short SF and fantasy stories. Once you've been selling short stories for five years or so you'll have built up a name for yourself, and editors will start asking you about that first novel.

    Speaking of short stories. The New York Times Book Review replaced Gerald Jonas as their f&sf reviewer with Dave Itzkoff's "Across the Universe" column. And in the June 11, 2006 issue, Itzkoff reviewed our own Nebula Awards Showcase 2006, edited by Gardner Dozois. This is the first time in my memory that a SFWA volume has been reviewed there. The stories themselves get mixed reviews, but one paragraph of Itzkoff's was pointed:

      [A]s a metaphor, [Christopher's Rowe's scene] is an extremely potent representation of the science-fiction and fantasy community's complicated relationship with nostalgia – a dynamic simultaneously defined by an inextinguishable yearning to search for lost time, and by an eternal vigilance for the dangers that even a quick glance in the rearview mirror can pose for forward-looking genres.

    And in one final meander through word association, another recent review in the NYT Book Review revealed a new writers organization. International Thriller Writers, Inc. (www.thrillerwriters.org/about.html) was founded in 2004 and now has over 400 members. Their combined sales: 1.6 billion. (Let's hope the dues are on a sliding scale.) Even so, their website states that:

      Thriller authors created ITW to celebrate the thriller, to enhance the prestige and raise the profile of thrillers, to award prizes to outstanding thriller novels and authors, and to create opportunities for collegiality within the thriller community.

    The group presents "The Thriller" award. It has no magazine, but does send out an email newsletter, the Thriller Readers Newsletter, which you can sign up for at: www.patronmail.com/pmailweb/PatronSetup?oid=537, and a podcast, The Big Thrill.


Organization, Publication, Address, Web Address

Authors Guild, Bulletin, 31 E. 32nd St. 7th Floor, New York, NY 10016, www.authorsguild.org/

Mystery Writers of America, The 3rd Degree, 17 E 47th St, 6th floor, New York, NY 10017, www.mysterywriters.org/

Sisters in Crime, InSinC, P. O. Box 442124, Lawrence KS 66044-8933, www.sistersincrime.org

Romance Writers of America, Romance Writers’ Report, 16000 Stuebner Airline Dr., Suite 140, Spring, TX 77379, www.rwanational.org

Western Writers of America, Roundup Magazine, 1012 Fair Street, Franklin, TN 37064-2718, www.westernwriters.org

Copyright 2006 by Steve Carper

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