Counselor's Corner

Madam Counselor Does Good (Copyright) Deeds On Twitter!

Always looking to help those flailing about on Twitter lost in the quagmire of copyright law, Madam Counselor tosses back a champagne cocktail and dons her superhero cape to answer their questions.

You never know where in the Twitter-verse Madam Counselor might show up to save the day. Follow here for future appearances:



It’s the Back-to-School/End-of Summer edition of Ask Madam Counselor—where your copyright and fair use questions about creative endeavors are answered poolside, under a simmering late-summer sun, assisted by the friendly influence of muddled cucumber and gin.

As always my responses are purely for entertainment purposes, and as such I make no representations that reading beyond this point will be remotely worth your time (though you can pretty well bet it will be worth your money).

Today we’ll help a film student apply fair use on her project so she can impress her professor without leaving the best part of her clip on the cutting room floor.  (Did you notice how I referred to myself in the plural in that last sentence for no reason? I blame the gin.)


Dear Madam Counselor –

My first project this semester is to make a 15 minute film about how Elvis impacted the history of rock and roll. The prof said don’t use more than 30 seconds of any clip for legal reasons. So naturally I found the PERFECT clip to show how his music correlated with the civil rights movement but it’s 42 seconds long. Is this really a problem? I see professional documentaries all the time with much longer stuff in them. I want to get a good grade, but I don’t want to argue with my professor either. It’s only the second week of school.


Okay, first off, let’s clarify something:  even though we’ve all seen it a zillion times on the Internet, there is no actual 30-second legal standard that defines whether or not the use of copyrighted material is acceptable as fair use.  It’s a rule of thumb often quoted in business practices to avoid examining on case-by-case whether that particular use of copyrighted material falls under the fair use exception. It’s so much easier to tell your reporters, editors, film students, music students, etc. that it’s okay to use 30 seconds of something than to have to go through a detailed fair use analysis with every piece of footage or music they propose to use.

But the problem is that this is EXACTLY what copyright law requires:  a detailed analysis, using four separate (and, frankly, not all together clear) factors, each applied to the proposed use. This problem is compounded by the fact that even going through a detailed application of these four factors doesn’t (SURPRISE!) reveal black and white answers about what is and is not okay. Geez, you’d think copyright law was written by lawyers, or something. It’s pretty hard to manage a business with that kind of murkiness, and in my fifteen years of practicing entertainment law, I found that 101% of business and creative people would rather not have to consult a lawyer every time they want to apply fair use (no offense taken, really), so it’s not hard to understand how this 30-second thing came about, even though it’s meaningless.

So what’s a rule-abiding student filmmaker to do? How do you both follow the law, and appease your professor?

Fortunately for you, the good folks over at the Center for Media and Social Impact have created a Statement of Best Practices in Fair Use for Documentary Filmmakers  through a cooperative effort among five documentary filmmakers’ professional associations to help add some clarity to this squishy area of law that affects so many creatives.  (If you aren’t a documentary filmmaker, there are also Statements of Best Practices for Visual Arts, Dance, Sound Recordings, Online Video (think YouTube), Poetry, and more—go check them out.)

How does this help you?

This short CBP document takes you STEP-BY-STEP through each of the four factors specifically as they apply to documentaries, teasing out various common scenarios to help you assess whether your specific use falls within the exception for fair use. In addition, at the link above, there are FAQ’s and other helpful resources, such as a section on when you don’t even need to worry about fair use.

The logic here is that if documentarians as a whole are consistently applying the principals of fair use in their filmmaking, this strengthens the legal case for all documentarians who are consistent in their practices if they are ever called into question.

Not only will utilizing this resource reassure your professor about the choices you make incorporating copyrighted material into your project, you might end up teaching him something along the way as well.

Feel free to leave a comment on my website or  Twitter if you have any follow up or other copyright questions.

And now, please excuse me while I fetch some ice for my gin.



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I just finished listening to the Audible version of THE CALCULATING STARS by Mary Robinette Kowal, narrated by the author herself, and—let me tell you—her performance is MASTERFUL.

I listen to a lot of audiobooks, and MRK’s fluid transitions between well-developed and nuanced character voices—many with distinctive ethnicities and accents—is among the best of the best. Her performance really enhances the experience of this well-researched alternative history set at the dawn of the space program in the 1950’s, when a devastating meteorite impact triggers an extinction event that catapults humankind into a space race to colonize Mars. This novel is as much a tribute to the unsung heroes of our own nascent space program, many of whom happened to be women, as it is a solid and entertaining story. – My Amazon review  – Amazon page for THE CALCULATING STARS




1 thing nobody tells you about eclipses

Among the sensory experiences I will remember related to being in the path of totality, most of which have been written about beautifully by others—the sudden acceleration of darkness, a rush of wind from the temperature drop (which in our case caused thunder just as the corona made its appearance in the sky)—there’s one that stands out for me that hasn’t really been talked about so much.

At our moment of totality, a sea of insects rose up from beneath us in the mistaken belief night was falling. This was not a gradual thing, as usually happens at dusk. Swarms of tiny flying critters teemed upward all around us, pinging off our arms and legs along the way—a few less fortunate ones meeting their end and they tried to shelter inside my nostrils. These were, fortunately, not a biting kind of insect, as none of us came away with any welts.

So there you have it. The unspoken underbelly of eclipse chasing.

To End, or Not to End.

Love this quote from Kristopher Jasma’s opinion piece about the art of writing endings:

“The last hundred yards up the mountain are the steepest. The air is very thin and you cannot share it with your characters anymore. You have to leave them, along with everything you’ve written to that point. It is the last thing you want to do, but as you go higher you’ll get your first look at them from above. They become smaller somehow, as from the summit you can finally see the mountain in its entirety.”

Here’s his essay in it’s entirety:

‘The Handmaid’s Tale’ Hulu Redux

This week I watched the season finale of ‘The Handmaid’s Tale’ on Hulu, which is a surprisingly fresh take on the classic novel by Margaret Atwood. The first season—and I was pleased to read it has been renewed for a second season—begins and ends in sync with the events of the book, leaving its viewers at that same moment of uncertain outcome for Offred, the handmaid from whose perspective the story is told, but with the resonance of hope that change is afoot in the totalitarian regime of Gilead, which subjugates women under its own Western evangelical version of extremist sharia law.

Having loved the novel for its language as much as the story, I was unsure whether I’d be drawn in to the series when it first aired. Elizabeth Moss plays Offred in a manner that was different than I’d imagined her in my reading, so it took me a few episodes to adjust to that difference. What excites me is that Ms. Atwood is a consulting producer and was extensively involved in developing this project for television. The series storyline is true to the novel, but expands upon it and modernizes it in ways that feel natural and not at all like a departure from the book, but rather a deepening of it. I watched knowing that—as the plot revealed new information or background about the characters and events—it reflected an enlarged vision of this world endorsed its author, and as such was not just the committee-creation of a roundtable of writers (no offense meant to television writers, who produce a lot of amazing content for us to enjoy). Hulu’s remake of this classic story feels both familiar and true to the book, while at the same time refreshingly new and exciting.

And so I’m looking forward to season two like a fan girl who finally gets to read the sequel to a beloved book over 30 years after its original publication, except that this sequel is being formatted for television.

Thumbs up, Scrivener.

When I rebooted my second novel earlier this year, it seemed like the perfect time to try out Scrivener as I re-integrated myself into the world of Las Vegas in 2069. This meant transferring all the notes and outlining I’d done in Word into the binder structure within Scrivener. I’m happy to say that the investment of time in the material transfer and software learning curve paid off and I’m really liking the fluidity that Scrivener allows me when I’m in a creative mode. Moreover, I’ve utilized the iOS version of Scrivener from my iPhone (synced to Dropbox) and it’s worked perfectly, and provides me with a place to drop notes right into my manuscript when I’m not at my desk.

On a final note, I had my first experience with tech help recently, and Katherine at Literature and Latte, the company that makes Scrivener, emailed me back later that night with some troubleshooting solutions. Scrivener gets a thumbs up from me.


I just returned from a workshop in Key West led by Margaret Atwood, the focus of which was story openings. The intimate size (12 participants) combined with the setting (the back patio of Ms. Atwood’s vacation house) created a cozy atmosphere and helped ease our first-day jitters about being read and critiqued by a rock star of the literary world.

The workshop was part of the Key West Literary Society’s “In Other Worlds” 2012 seminar. The criteria for admission were two-fold:  1) our stories must set on Earth in the near future, and 2) Ms. Atwood must accept us based on a writing sample.

My novel-in-progress (“Underneath Us”) opens in the ruins of Las Vegas in 2069, so I was excited to learn of this opportunity, and—subsequently—of my acceptance into the workshop.

The first morning we gathered quietly around the poolside table, awaiting the start of the workshop and making chit-chat, unsure what to expect. When Ms. Atwood joined us, she offered a brief “good morning,” then laid five white cards on the table with “STOP TALKING” printed on them. These were for us to use, she explained, if we felt anyone was becoming long-winded. We chuckled and, after brief introductions, embarked on the business of workshopping.

As it turned out, we had a great group and no one tried to dominate the discussions, so the white cards disappeared after that first morning. The workshop was comprised of readings, group commentary, line-editing, and examining the internal consistency of our world-building. Ms. Atwood also recounted many summaries of books and movies that might be relevant to our stories (including “The Head That Wouldn’t Die” and “The Creeping Eye”).

My turn came on the last day, by which time we’d grown comfortable as a group—and I’d observed the grace and kindness with which Ms. Atwood offered her criticisms of our work—so I wasn’t feeling too nervous. I received useful feedback and line-edits, as well as a wonderful compliment when Ms. Atwood said, “You know how to open a story.”  [*Insert happy dance here.*]

As souvenirs of my experience, I returned home with an autographed copy of my marked-up manuscript, a “STOP TALKING” card, and—most importantly—new friendships with people who care about books and writing as much as I do.

Thank you, Ms. Atwood, for having us.

(Gratitude and credit for the fabulous photos to Cat Sparks. )




Forced Sterilization in the USA

“We hold these truths to be self-evident, that all men are created equal…”

Did you know that thirty-one States carried out Eugenics sterilization programs on the poor, often without their knowledge or consent? The bill legalizing this practice in North Carolina wasn’t revoked until 2003.

MSNBC’s Rock Center with Brian Williams produced a segment about this travesty:

State of Shame: N.C. sterilization survivors fight for justice

KINDLE LENDING LIBRARY: a good thing for authors?

Last week, introduced the Kindle Lending Library, a benefit for’s Prime members that allows Kindle-owners to borrow certain e-books for free. In most cases, the titles included in the lending library have been contributed by the publishers for a fixed fee. However, the Association of Authors’ Representatives (AAR) quickly issued a statement in response to the discovery that some titles are being included in the lending library without the publisher’s consent that this “…new sort of use of authors’ copyrighted material…is not covered nor was anticipated in most contracts between authors and publishers….” Amazon’s press release states that it is acquiring such non-contributed books under their wholesale terms with the publisher on a per use basis.

Legally speaking, the AAR is probably correct that doesn’t have the contractual right to lend books without their permission, even if they are acquiring each lent copy under wholesale terms. It will be interesting to see how this power-play on’s part falls out as it receives push-back from publishers who perceive this move as further evidence of the mega-retailer’s lack of fair-dealing when it comes to intellectual property compensation. That said, I think it’s unlikely a lawsuit will come of this, so the situation will probably shake itself out according to the relative power of the parties in the marketplace.

I’ve been reading some pretty grumpy author posts about the lack of fairness in this situation, and I understand that sentiment. Legalities aside, though, I think there’s an upside for authors to the Kindle Lending Library that’s worth voicing too.

Most readers stick to writers they know when selecting new books, making it tough for new and mid-list authors to expand their audience. However, when buyers do discover new authors, it is often by borrowing a recommended book.

One of the things Amazon does much better than brick-and-mortar stores is enabling readers to find books based on specific preferences and key words, and providing customer reviews that point them toward the books they are likely to enjoy. In this sense, the Kindle Lending Library may be an opportunity for readers to find and sample books they were otherwise unlikely to buy.

We all know there’s no marketing campaign as powerful as positive word-of-mouth recommendations. Perhaps, as authors, we should consider that a Kindle-lent book may not represent a lost sale at all—but rather a found reader.

Neil Gaiman voiced similar thoughts relative to book piracy, and you can hear what he has to say about that topic here: Neil Gaiman on Copyright