Madam Counselor's Corner

2019 KWLS EMERGING WRITER AWARD SEMI-FINALIST

Thought I’d share a bit of positive writing news here:

I got an email a couple days ago informing me that, although I didn’t win,  I was a semi-finalist for the 2019 KWLS Emerging Writer Award for a novel in progress. I’m pleased by this result, especially since this particular organization is fairly academic and literary in its focus, and I didn’t think they’d give much weight to a genre manuscript. Plus, it definitely *is* a novel in progress and I know I have some cleaning up to do, even on the sample I sent them. In the email, they passed along some of the comments from the judges, which is great since it’s rare to get actual feedback on these things!  

So, that was my yay moment for this weekend. Thanks for reading it!

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Nebula Conference Schedule

I’m pleased to be at the Nebula Conference this week in Los Angeles, and will be speaking about fair use for writers, as well as participating on a panel about the effect of text-to-speech software on the audiobook market. I’ll also be available during office hours for individual questions. Here’s where to find me:

https://nebulaconference2019.sched.com/

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BIAFTA – The Bedroom-In-America Free Trade Agreement

A few months back I posted about an exchange with our 11-year old stemming from his objection to certain household rules. A mentor from my early entertainment law days replied, posturing as our son’s attorney. The back-and-forth that ensued was fairly entertaining. I’m sharing it here for posterity.

FACEBOOK POST – November 21, 2018

Our son informed us he intends to file an application at the UN to have his 11 x 12 foot bedroom recognized as an independent country within the borders of another country, like Vatican City.

His father and I are completely supportive.

We offered to provide access to our utilities, Internet, provisions, plumbed water, certain domestic services and passage through other rooms of the house for ingress and egress into the rest of the US, in exchange for fair-trade bartered labor services or hard cash.

*insert record scratch meme here*

*Child slouches toward his bedroom, dreams and ambitions defeated*

Poor kid. It’s not his fault his mom and dad both built their careers on negotiating skills.

FACEBOOK COMMENTS:

WH: I have been retained by your son in connection with the aforementioned negotiations.  While you may continue to communicate directly with your son in connection with your parental duties and his obligations as a son, demand is hereby made that any and all correspondence in connection with the matter at hand be directed to my attention.  To the extent you fail to comply with this request and/or my client feels that his needs are not being properly addressed…..well just use your imagination to conjure up the grief and anxiety I can inflict.  In the meantime, demand is made for extended ‘stay awake at night hours’, double portions of desert and that you continue to provide him with no less than three meals a day.  Thank you for your attention to this matter.  I am confident we can reach an amicable solution as I would hate to see you cry in court.

ALEX:  Mr. H – Our original offer to your client still stands and we look forward to setting up BIAFTA (The Bedroom-In-America Free Trade Agreement) should he desire to do so. We will also seek to reclaim attorneys’ fees, if any, in this matter, which may be recompensed through additional household services in the form of toilet cleaning. Please advise your client to govern himself accordingly.

WH:  I do not appreciate the tone of your response.  Notwithstanding, my client intends to exhibit the highest degree of dignity and respect while forced to remain in a hostile country.  Nevertheless, I would appreciate your carrying your passport with you when you desire to enter his bedroom.  A metal detector/scanner is being delivered today and while your TSA/Global Entry may work when you leave his premises, rest assured you must take your shoes off and empty your pockets upon entry.  Thank you for your understanding during these difficult times.

(HOURS LATER)

WH: I am sorry that I disappeared but I was in meetings with Antonio Guterres today discussing my client’s situation.  I have submitted our application to join the United Nations.  Notwithstanding your stonewalling us, my client plans to move forward with this matter.  http://www.un.org/en/sections/member-states/about-un-membership/index.html

ALEX: Mr. H – I’m glad you reached out because a matter of urgency has arisen that you must discuss with your client. We live in a THREE-BEDROOM HOUSE (two now, actually, exempting the provisional status of your client’s territory). If your client insists on proceeding with constructing a BORDER WALL from the more than 10,000 Legos he has amassed during his childhood, then such wall must adhere to international conventions regarding territory disputes and reside entirely within the confines of what he is now referring to as “Bedroomlandia” AND NOT encroaching on our ability to traverse the hallway by placing it outside his door. This situation must be rectified immediately or I will be forced to escalate the matter. I will await your response in the sincere hope your client will see fit to act reasonably.

WH:  Ms. Tillson…..as the one who enabled, funded, encouraged and otherwise was the (dare I say) dealer who was responsible for my client’s obvious Lego-addiction, I must ask you to provide me with written evidence of any and all use restrictions that my client agreed to when you delivered same to him.  Until you deliver such a document that contains his signature, I prefer that our next communication take place either before the Security Council or The International Court of Justice.  I am not surprised that you take such a shallow, weak position…..obviously a reflection of your  working with a lawyer in the early stages of your career who misguided you in all facets of life.  I remain shocked by your disregard for my client’s welfare.  Good day to you m’lady…..good day indeed.

ALEX: Well, Mr. H, before we can even begin dealing with said “border wall” we have a new problem: immigration. There are two OTHER CHILDREN in Bedroomlandia at this moment that your client invited over who have requested asylum status to remain inside. Their parents—having arrived here to pick them up—are apoplectic that they must contact you instead of taking their kids home for dinner. Don’t you think this is getting a little out of hand? I mean, really, what’s next? CNN?!

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Madam Counselor: Using Trademarks in Titles

Dearest Admirers,

On a recent evening while touching up my pedicure with the help of a holiday hot toddy—lo and behold!—a visitor to my site wrote in with a question. Shoving aside my hot toddy (without spilling any), I decided my toes could wait. It was late, the weather was unpleasantly cold (for Florida), but somebody out there needed me.

Stretching my fingers wide to ready them for typing, I shrugged back my shoulders and dove right in:

Hi Alex,

My editor referred me to your Twitter page, which led me here. My question is regarding the use of a copyright name in a title.

I, like most writers, use trademarked names throughout my novels. My protagonist loves Honey Nut Cheerios, his sister drinks Rolling Rock Beer, etc. In my upcoming novel, however, I want something different. I want to use a product name in the title. In this case, it’s Buick.

Is it necessary to get permission from Chrysler to use the Buick name in the title of fiction work?

Thank you.

Now, we all know the basic logic behind trademarks: it’s the recognizable brand of a product or service, the owner of which may pursue legal action for its infringement by a third party. Said legal action can take the form of a cease and desist letter, an injunction, and/or a lawsuit for money damages. There are a lot of facets to defending a claim of trademark infringement, but this dear reader was not asking whether a lawsuit could be won or not. The question was simply: “Will I get into trouble?” And in the case of a writer, “trouble” is defined by having to change the title of the book after it’s been released.

So, that requires Madam Counselor to dispense a different version of wisdom than the question of whether one could win a lawsuit:

 

The answer to whether you can get away with using a trademark in your title is going to depend on the context of the use and whether a secondary meaning can be ascribed to the term. For example, “Murder at Cadillac Ranch” wouldn’t be an issue because Cadillac Ranch is a place. “The Murder in my Cadillac” however might get you a cease and desist letter, even if you had a defensible claim for your use because big companies get cranky when they’ve paid a lot of money to build up a brand and then someone tries to capitalize on that recognizability and tag it with something unsavory, like death.

I’m guessing the threshold you are shooting for here is to avoid getting the cease and desist letter in the first place, and not whether you could win the case if sued, which means there’s a certain matter of practicality to be factored in to the decision aside from a purely legal analysis since cranky plaintiffs with a lot of money don’t have to be right to sue.

PS – If you’d like to share the title you are considering, I can give you a gut check on what I think (but I won’t post it on the site).

 

My dear reader wrote back as follows:

Thank you for the quick response, Alex. It is for a murder mystery. The title I’m hoping to use is

A Body in a Buick

I found a request form on Chrysler’s website, but it seemed like it was for much bigger projects, such as films and such, so I was hoping I could avoid it. Your response makes it sounds like I will need to get permission first, but I’m hoping you tell me otherwise.

 

Well, I had to be honest. I slugged back another sip of my hot toddy and broke the bad news:

 

Shoot. Gotta tell you, that didn’t pass my gut check. I think you’d be inviting unwelcome attention from Chrysler’s in-house lawyers if they found your title during one of their routine IP checks on the Internet. An unhappy letter at the least. You could try asking permission, but I don’t think it’s likely you’ll get it. Frustrating, I know. And, yes, it would be a different story if James Patterson wanted to put out a novel with the exact same title—Chrysler would be all over helping to promote the book then. Sorry, I do wish I could give you the answer you wanted!

 

My gracious reader wrote back quickly, and I was relieved to know I’d managed to help him, without obliterating his dream:

Thank you, Alex.

You didn’t give me the answer I wanted, but you gave me the answer I expected. Since I’m not going to use it, feel free to post the title on your website if you’d like.

All in a day’s work for this dainty Internet superhero, my friend. And now, with my work done, I picked up my little bottle of nail enamel and finished painting my toes “Coca-Cola Red®.”

Yours in law,

Madam Counselor™

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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:

https://twitter.com/alextillson

 

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MADAM COUNSELOR – THE BACK-TO-SCHOOL EDITION: FAIR USE

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.

MC

 

(Click here to subscribe if it would please you to receive more semi-helpful gems like this in your inbox on a not-too-often basis.)

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SAY “YES” TO THE CALCULATING STARS, THEN ADD AUDIBLE NARRATION

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.

https://amzn.to/2BYNywP – My Amazon review

https://amzn.to/2POQYFi  – Amazon page for THE CALCULATING STARS

 

 

 

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One 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.

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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:

https://opinionator.blogs.nytimes.com/2014/04/21/the-end-or-something/#more-152468

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