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The Writer's Law School : Legal Tips for Writers

Can COVID 19 infect your Publishing Deal?

Going Viral: Force Majeure and COVID 19


Originally in this month's column, I had intended to examine some of the key provisions of a publishing agreement, but overnight our world seemed to change. Topics such as royalties, subsidiary rights, the advance and author's input regarding book title and artwork will have to wait for another time.


As a nation, we're not dwelling on the big national issues like the Presidential election, the environment and education. Instead, we're focused on a microscopic organism that is threatening our country and the world.


Similarly, I'd like to draw to your attention an often overlooked, boilerplate provision that appears in most contracts - leases, house purchase contracts, bank loans, manufacturing contracts, etc. called Force Majeure. Since we are writers, I'm going to zero in on it's application to publishing agreements, and how the effects of this obscure paragraph may linger longer than the pandemic.


In March 2020, the Authors Guild updated their Model Trade Book Contract for the first time in a decade in an attempt to remove contractual biases against authors. Among other things, they suggested subtle changes to the Publication Section of publishing agreements, which deals with such topics as acceptance of work for publication, contract termination by the Publishing Company for the Author's failure to submit the manuscript or termination by the Author for non-publication of the manuscript by the company.


They recommend the insertion of the following language in that section:
"Publisher's failure to Publish or cause publication within the time period provided in this Section 9 will not be deemed to be a material breach of this Agreement (and Author shall not be entitled to any of the remedies set forth above) if the failure (i) is permitted by any provision of this Agreement; (ii) results from any business decision made by Publisher with the prior written approval of Author; or (iii) is attributable to strikes, war, governmental restrictions, fires, natural disasters, acts of God, or any other cause beyond Publisher's reasonable control for the time covered by the conditions, and in no event for more than 6 months past the original publication date."


The last subsection of this article, (iii), is called the Force Majeure provision. This legal concept dates back to the Roman times, and recognized that certain unforeseeable events may render the performance of an agreement impracticable. In the modern publishing world, and in the context of the current world health crisis, this provision has long lasting, widespread implications for an Author.


Force Majeure releases Publishers from publishing your novel in a timely fashion as otherwise agreed to in the contract between the parties. Generally, the standard contract provides that a Publisher shall publish the work within 12 to 18 months after acceptance of the manuscript. Often there is no deadline for the release of an audiobook or foreign edition, but some authors insert a reversion of those rights if the Publisher does not use them within two years of the initial publication of the book.


It is unprecedented that a virus could be the impetus for declaring Force Majeure, but COVID 19 is not your common cold. It is quarantining cities, overwhelming hospitals and leaving streets, stores and workplaces vacant, to say the least. It is a nightmare that we are all living with as best we can, with the hope that it will soon be over.


If a Publisher invokes the Force Majeure clause claiming that COVID 19 prevents immediate publication, they will be entitled to delay publication for an additional six months, extending the time from manuscript acceptance to bookshelf to a period of up to two years. For several reasons, the book may not be published at all or at least not in a print edition. At the present time, publishers like Simon and Schuster, are delaying their scheduled releases. Publisher's Weeklyhas compiled a list of over seven hundred titles that have been delayed due to COVID-19. Included in that list is Stephen King's long anticipated "Under the Dome" which was pushed back until Christmas Eve, when only the Ebook will go on sale at the same price as if it were in paper - $35.00!


According to Publisher's Weekly, presently there is a boom in all formats, especially Ebooks, as readers hunger to fill the void, and empty time, in their lives. These digital and audio formats are also easier, quicker and cheaper to produce, and easy for the reader to purchase and download with the click of a button. However, with the scale of the epidemic, government lockdowns and the closures of bookstores and other distribution channels, the future of book buying appears to be uncertain.

 

This uncertainty may be factored into a publisher's decision to apply Force Majeure.


What steps can Authors take?


While most contracts award Force Majeure to the Publisher, it is noteworthy that the provision is not mutual. In other words, there is no Force Majeure favoring the Author. An Author can be held to the contractual deadlines for submitting their manuscript to the Publisher during a crisis, while a Publisher is not similarly bound to publish. It would be prudent to negotiate a provision extending the Author's delivery and editing deadlines for the same Force Majeurereasons as given to the Publisher. Additionally, a provision should be inserted that any Publisher delay cannot exceed six months beyond the original publication date.
Further, that if publication does not occur after the expiration of the six-month Force Majeure period, and after Author's has demanded publication in writing, that the publishing company forfeits its right to publish the work. Then, the Author should have the right to terminate the agreement, recover all rights granted and retain the full advance.


Clearly, what is good for the Publisher is good for the Author.


If you presently have a book pending publication, discuss this wrinkle with your agent or your publishing company. With a small press, you have a direct line to the editors and publisher, so have a frank discussion with them about their plans regarding your book. Communication is key, so keep the dialogue open and understanding about both sides of the issue to achieve a goal that is in everyone's best interests. After all, they've invested in you and your manuscript, and will have no income without publishing your book. Suggest digital format releases as a way to keep the book on schedule.


In the grand scheme of life, and while we are worried about our friends and families, our jobs, our towns, first responders, our medical community, the economy and our country, the Force Majeure provision of a publishing agreement may seem trivial. However, as writers, our joy and our livelihood exist to share our stories with the world. And without publication, there are no royalties and no income. Also, readers depend upon us to entertain them, spark their imaginations and transport them to faraway places and times, which are dearly needed in distressing times like these.

         
Moving forward, writers should beware that even the most obscure contractual provisions can have lasting, unexpected results, and take heed. Make sure that your contract is reviewed by a lawyer prior to signing it and don't forget to ask for a simple few changes to level the playing field.


To keep abreast of the latest publishing news, special offers, events and discounts, Publisher's Weekly is offering a free e-subscription during the COVID crisis at www.publishersweekly.com. Also, The Authors Guild has compiled a guide to help authors find economic relief at www.authorsguild.com.


Remember, to think positive. We're all in this together.
 

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The Author- Agent Agreement


Springtime is not only the season of robins, daffodils, longer days and baseball, it's the beginning of the writer conference season. As baseball pitchers wind up to blast the ball across home plate, many writers will also be pitching their hearts out at to editors and agents at lightening speed.


To all of you preparing to pitch, I salute you. Like baseball, your pitching may consist of strikeouts and foul balls. However, all you need is one home run. We all know that a writer only needs one agent to read their manuscript, say "YES!" and offer representation. (We can all hear the crowd roaring from the grandstands.)


Great! Fantastic! What happens next? Before your new agent can start pitching your book to publishers, there are a few details that must be nailed down. Namely, there's the author-agent contract (Agency Agreement) to negotiate and sign.


With hearts thumping wildly in their chests, most writers would be so excited that they'd sign anything put before them – after all, this is the dream of a lifetime. But, caution must not be thrown to the wind. Both parties, the writer and the agent, should have a complete understanding of their respective rights, obligations and duties before they can move forward down the road to publication.


"DANGER! WILL ROBINSON!"


It is not my intention to burst anyone's bubble, in fact, the opposite. However, I do feel like the Robot in Netflix's reboot of "Lost in Space" when I shout "Danger – Will Robinson!"


The most important thing to remember is that when you sign the Agency Agreement, you are executing a document that will determine your writing life for a certain amount of time. You are establishing a brand new relationship with a person who will ultimately control your career and your destiny.


It should be kept in mind that contracts are written not out of distrust, but to codify the trust between you and your agent. An Agency Agreement will help avoid any misunderstandings that can arise during your relationship. The first step is - do your due diligence; check out the agent. The Association of Artist's Representatives is a professional organization of over 400 agents who represent literary and dramatic writers, http://www.aaronline.org. Their members subscribe to a Canon of Ethics that holds each member to the highest standards, requiring that they place the client's interest above their own and to avoid any conflict of interest. And never, ever, pay a "reading fee" to an agent.


Don't believe that you will lose the deal simply because you want certain contract points clarified. In fact, asking pertinent questions reflects knowledge. A reputable agent will respect you, a scrupulous one will not. While each Agency Agreement will be specific to the particular author and their circumstances, there are certain key elements, which are or should be included in the Agency Agreement to protect your interests. The following is a brief list of points that demand your attention before you sign on the dotted line.


SCOPE OF WORK


The first question that you should ask yourself is what works are covered by the Agent Agreement? Does it cover your entire body of work or only new works? Remember that if your agent sells your manuscript they are entitled to a commission ad infinitum. Make sure that the contract is limited to new works, especially if you have previously published or self-published works.


EXCLUSIVITY

 

When you sign the Agency Agreement, you are granting the agent an "exclusive right" to sell or license a particular work anywhere in the world. Among other things, this includes the right to appointment a sub-agent for foreign rights or non-publishing rights like movies or dramatic works.


Be forewarned, though. When you grant your agent an exclusive right to sell your work, it can hamstring any actions you independently take to sell your work. The perfect example would be if you pitch an editor at a conference and they subsequently purchase your work, your agent may have a claim for a commission if the sale occurs during the term of their representation. Seems unfair, right? To avoid litigation, insert a provision excluding author-initiated sales. This should protect you in the event of such an occurrence.

TERM


How long does the contact last? Various scenarios can apply to the length of the Agency Agreement. For example, the contract can be cancelled if no sale occurs within X number of months, or the contract can set forth a specific amount of time such as one year, or it can be an annual contract, automatically renewable unless cancelled by either party within 60 days before the anniversary of the agreement.


Since issues can arise when manuscript is sold shortly after the termination of the Agency Agreement, agents often include a provision that if the book is sold 90 to 180 days after the termination of the agreement or the sale occurs as the result of negotiations that occurred prior to termination, then the agent is entitled to their commission. If this provision is inserted in the Agency Agreement, be sure to require that the agent supplies a list of publishing houses where the manuscript has been submitted. You don't want both your old and new agent to be entitled to duplicate commissions for the same work.


COMMISSION


The standard in the industry for domestic book publishing and performance rights is 15% of the gross amount payable to the author. The commission on foreign rights is 20%. These rates are generally non-negotiable.


Remember, the publisher remits royalties directly to the agent. The agent will then deduct their expenses (photocopies, postage, etc.) from the proceeds, and will remit the balance to the author. Accordingly, the contract should provide: that the agent will send the money to author within 10 days of receiving the royalties, the funds will be on deposit in the firm's client's trust account, and the author will receive an accounting of the monies and royalty statements. Further that upon the termination of the Agency Agreement, the author and agent will be paid directly by the publisher. Also, be sure to require that the agent obtain permission from you for expenses exceeding a certain amount. You don't want any surprises for Fed Ex shipping expenses to China.


NO POWER OF ATTORNEY


Do not permit the agent to sign any documents on your behalf. They are your agent, not your power of attorney. You want to review every shred of paper related to your work, especially the publishing agreement and the movie option.


ZIPPER CLAUSES


To sum up the Agency Agreement, there are a few final recommendations. First, agree to submit any contractual disputes to the American Arbitration Association because it's cheaper than litigation. Second, remove any Assignment Provision as you don't want your Agency Agreement assigned to another literary agency without your approval. Also, add a provision that the agreement is cancelled in the event of the death, disability or bankruptcy of the agency or agent. From personal experience, I can attest you that you don't want to married to an agency that is going down the tubes. My final suggestion is that it doesn't hurt to have a lawyer take a quick peek at the Agency Agreement.


Armed with these tips, you will be in charge of your career and in control of your destiny as a soon-to-be-published author.

 

Congratulations! You're no longer a free agent! It's time to sign on the dotted line and best of luck! Play ball!

 

This article was previously published in the March 2020 issue of InSinC, the Quarterly newsletter of Sister In Crime.

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Where there's a will!


Death is a grizzly matter. But, let's face it, as mystery writers and crime writers death is one of our most popular inciting incidents. There's nothing that pits one family member against another quicker than an inheritance from Grandma or Dad. Whether it's money, real property, artwork, a business, a European title or even the family dog, there is no shortage of plots describing the clash over assets belonging to the previous generation. Jane Austin's Emma, Sense and Sensibility, Dicken's Bleak House, PD James', A Certain Justice, Louise Penny's Kingdom of the Blind, and Robert Galbraith's Lethal White are prime literary examples of the dog-eat-dog infighting over a valuable estate.


Those of us flirting with Medicare will remember how, from 1979 to 1991, Jock Ewing's sons, J.R., Bobby and Gary, repeatedly resorted to fisticuffs over the control of daddy's Ewing Oil dynasty in the TV show Dallas. For those of a more tender age, the HBO phenomenon Succession is drawn from the real life machinations of the Rubert Murdoch clan to control the News Corp media empire.


This article will explore the wonderful world of inheritance to help your murderous estate plotlines ring true when the knives, the guns and the arsenic come out. And we'll examine what happens to the family's assets after the body has been buried.


What is a will?


A will is a document that expresses the manner is which a person desires their estate to be managed or divided after they die. In New York, two disinterested parties, who sign also affidavits acknowledging that they witnessed the will signing, must witness a will. To probate the estate, the will and the affidavits must be filed with the Probate Court.


I don't want give the impression that I'm obsessed with the Queen of Soul, Aretha Franklin, but her life and death are still making headlines and serve as the perfect example of how a family can breed divisiveness over a "money grab" of mama's estate.

 

When Aretha died in August 2018, her family and business associates presumed that she didn't leave behind a will expressing her wishes for the distribution of her $80M estate. Her "intestate" estate, an estate without a will, was submitted to Michigan's Oakland County Probate Court and her neutral niece was appointed as the administrator upon the consent of her family.

 

However, in May 2019, three "wills" were discovered in her Detroit-area home. One, dated March 2014, was found inside a spiral notebook under a sofa cushion and two, dated March 2010, were discovered in a locked cabinet. The Probate court has been asked to rule whether the three wills were valid, and the contentious litigation is expected to continue for some time.


Other famous disgruntled heirs include Julian Lennon, the first born son of John Lennon was left out of his father's will and only given a trust fund created at the time his parent's divorced, Jimi Hendrix's brother, Leon, who claimed a share of his brother's estate, and Anna Nicole Smith, who wasn't left a dime of her billionaire husband, J. Howard Marshall's, estate.


Why does the validity of a will make a difference?


Under the law when a person dies without a will, there is a codified inheritance chart as to who is entitled to receive the estate. Assuming that an unmarried Aretha died "intestate," her surviving heirs - her four sons- would equally share in the estate under the law. Any newly discovered will would supersede the intestate distribution, requiring the assets to be divided as per Aretha's specific wishes. In Aretha's case, believing there was no will, the sons had no objection to their neutral cousin managing the estate, however, the 2014 will designated her son, Kecalf, to serve as representative ("executor") for the estate. This conflict is just the tip of the iceberg, as the Michigan court authorized a handwriting expert to authenticate the will.


Even before the authenticity is established, there are disputes over Aretha's $80M estate. Particularly, the later will does not name her son Clarence as a beneficiary, and the brothers have challenged Kecalf's ability to serve as the executor.


Handwritten Wishes


Aretha's case also raises the question as to whether handwritten wills are valid. In New York, a handwritten ("Holographic") or verbal ("Nuncupative") will only be recognized as valid under extremely limited circumstances (EPTL 3-2.2). A serviceman must make these unusual wills during an armed conflict. The fact is that unless a serviceman is expressing his last wishes before his death, there is no such animal as a "deathbed" will, unless it is in writing.


Michigan's laws are different. A holographic will must be in the decedent's handwriting, intended to be their final will, and must be signed and dated. However, if the terms of the will are unclear or the handwriting is not authenticated, the will could be thrown out. Numerous things can go awry when someone handwrites their own will, and the rules change from state to state.
 
No will? No way?


Above I referred to someone dying "intestate," dying without a will, which is a fairly common occurrence. Not everyone desires to face their mortality by signing away their assets to future generations. It is questionable as to whether Aretha did.


I also mentioned New York's Estate, Powers and Trust Law (Article 4) sets out a laundry list of distributees who receive an estate in such a situation. If a person is survived by a spouse and children, the property is divided between them. If there are no children, then everything goes to the surviving spouse, and similarly if there is no spouse, then the property is equally divided between the children. Basically, the distribution order is as you would think it would be when you scale the family tree: spouse, children, grandchildren, parents, siblings, grandparents, aunts/uncles, etc. Sadly if there are no heirs, the property "escheats" or reverts to the state coffers.


I once had a situation where a very wealthy man died without a will, and my client, his wife, was in the process of divorcing him for his numerous misdeeds. As the divorce had not been finalized before his death, his wife inherited his entire estate as they had no children. While that outcome may seem unfair, the man's only living relative was his wealthy, elderly mother, who clearly didn't need the money. Frankly, the wife had tolerated her husband's shenanigans for years and in my book, she deserved the estate as battle pay.


Who's Kidding?


Another interesting question addresses who qualifies as a "child" under the estate laws. In order for a child to inherit, there must a legal parent-child relationship between the child and the parent. To qualify as a child, he or she must: be born during parent's life or after death of parent in a legitimate marriage, have had the paternity of an illegitimate child of a male established, or be an adopted children. Neither stepchildren, wards nor foster children inherit as there is no relationship by blood to the deceased.


A tasty motive for Murder


Not only do these basic estate issues give rise to a broad range of family issues that are ripe motives for murder, blackmail, estate challenges and theft, they also have practical implications to our own lives. Failing to settle our affairs during our lifetimes can create future problems for those we leave behind. It is recommended that you consult an attorney in your jurisdiction to draft a will so that your spouse, your children and grandchildren are protected from future uncertainty and contests.

 

Further information on wills and estates is available at New York State Office of Court Administration, https://nycourts.gov/CourtHelp/WhenSomeoneDies/index.shtml or the American Bar Association, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/


Remember, where there's a will, there's peace of mind for you, your family and your readers.
 

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Keeping Secrets: Privileged Communications

 
In these days of electronic eavesdropping by Alexa, text messages, GPS tracking systems in our cars and cellphones, and CCTV, exactly who can we trust with our secrets? Certainly, not technology. The true keepers of secrets are, in fact, real live people who, under the law, are prohibited from spilling secrets unless given clear permission to do so. In this article, we'll examine who is required to keep confidential information, and ways to incorporate secrecy into your manuscripts.


TAKING THE FIFTH


The most famous and basic protection for keeping secrets is the Fifth Amendment of the U. S. Constitution, which provides that no person shall be required to give witness against themselves. Some of us are old enough to remember the O.J. Simpson murder trial of 1995, where the defense called Detective Mark Furhman to the stand and questioned whether he'd ever falsified police records. The tactic was designed to discredit Furhman's testimony regarding his investigation of Simpson's commission of the murders of his wife and her lover, Nicole Brown Simpson and Ron Goldman. Furhman leaned over to his attorney when asked that particular question and responded : "I wish to assert my Fifth Amendment privilege."  


 "Taking the Fifth" is an extremely powerful protection for a defendant in a criminal case against self-incrimination, as the shield blankets all of the defendant's testimony, not just one or more questions. However, for a witness in a case, the coverage is not so broad. While they are entitled to plead "the fifth," they can be forced by subpoena to give testimony. Any incriminating statements set up the potential for prosecution of any crime revealed in their testimony unless the law provides immunity, or their wise counsel has negotiated immunity or a reduced sentence in exchange for the testimony. Think about the recent headlines featuring Michael Cohen's testimony during the Mueller investigation.


PILLOW TALK


What about your character's spouse? Can he dish on all those dirty little secrets she's whispered in the night or in her sleep? Your character can sleep tight – the answer is NO! In both civil and criminal cases, neither the husband or wife can testify against the other whether its a state or federal case, provided they're legally married. However, if the crime can be proven with evidence independent of the spouse's testimony, then your character will be looking at time in the big house.


If you're a fan of Bravo's The Real Housewives of New Jersey, you'll recall the plight of Teresa Guidice. She was married to an Italian construction worker, Joe Guidice, and after a 2009 bankruptcy was cancelled at the last minute, the Guidices were charged with 41counts of mail, wire, bankruptcy and bank fraud in connection with their lying to banks and illegally squirreling away over $5M during the bankruptcy proceedings. However, neither Guidice spouse could be compelled to give testimony against the other. In this was a situation, independent criminal evidence was available to convict the Guidices without the testimony of either spouse. And wisely, their attorney brokered a plea deal where each would serve time separately so one parent could stay with their children. No doubt their marriage was strained, especially with Joe's impending deportation to Italy.


DOCTOR, DOCTOR, MR. MD.


If your protagonist (Samantha) stands to inherit the entire estate from her billionaire philanthropist mother, who disinherited all of her other children on her deathbed, Samantha may be in for a tough time. Poor Sam can expect her sibs to challenge the validity of the will by claiming: Mummy dearest lacked all of her marbles at the time that she executed her Last Will and Testament moments before she inhaled her last breath, and b) Sam exercised undue influence over Mummy enticing the changing of the will. Because the sibs are objecting to the probate of the will, they bear the burden of proving their mother's incompetence and undue influence. Thanks to the medical privileges existing under the law, all the kids can expect a long, drawn-out and expensive battle for mummy's money.


We all know that HIPAA (Health Insurance Portability and Accountability Act of 1996) is the Fort Knox of medical information. https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html. No one is entitled to access to medical records unless the patient gives permission.  Similarly, physicians, dentists, podiatrists, chiropractors and nurses are prohibited from disclosing medical information unless the patient waives that privilege.
However, New York has an interesting twist on this privilege in the case of a deceased person when it relates to a will contest or other litigation connected to the decedent. A physician or nurse must disclose any information as the mental and physical condition of a deceased patient covered by their privilege except when the information would disgrace the memory of the person. (CPLR 4504(c)) However, waivers from the family must be obtained or there must be no objection to the disclosure.


In our scenario, there is no incentive for Sam to agree to release any medical records, obtain a physician's testimony or besmirch her late mother, whose name is embellished on hospital wings, theaters, libraries and university buildings. Again, without Sam's cooperation, the sibs will be required to provide independent proof of incompetence to invalidate the will. The sibs must rely upon staff, mummy's erratic behavior and business dealings to support their claim of lunacy. They must also prove that Sam's actions toward their mother – threats, lies, cajoling, bribery, coercion, abuse – were the cause of their disinheritance.


OTHER CONFIDANTES


In New York, confidential communications are also extended to: clergy or ministers of any religion, psychologists, social worker, library records and rape crisis counselors. (CPLR 4505-4510). None of these individuals, or their employees, can disclose a communication made by a client.


ATTORNEY CLIENT PRIVILEGE


I've saved the best (an my personal favorite) for the last. Parenthetically, I have taken this sacrosanct privilege to heart every day of my life as an attorney and a writer. The law (CPLR 4503) provides that unless a client waives the privilege, an attorney and her employees, shall not disclose client communication or be compelled to disclose same before any agency, legislative body, court or committee, etc.


Not only are attorneys bound to secrecy by the statutory law, the Rule 1.6 of the New York State Rules of Professional Conduct requires that a lawyer shall not knowingly reveal confidential information to the disadvantage of a client or to the advantage of a third person unless the client consents, has implied their consent or disclosure is permitted by the rules. Crime writers are particularly struck with the exceptions that a lawyer may reveal or use confidential information when the lawyer believes it will prevent reasonably certain death or substantial bodily harm, or prevent a client from committing a crime. 


CONCLUSION


In my debut thriller, THE MIDNIGHT CALL, my pregnant protagonist, Jessie Martin, rushes to aid her mentor when he calls and admits that he's just killed someone. As a tactic to dismiss the murder charges, the defense attorney claims that Jessie has violated the attorney-client privilege due her mentor, raising the question as to whether Jessie was acting as a friend or an attorney to her mentor. I'm not giving any spoilers, but in the novel I wanted to examine this ethical dilemma raised as an example that privileges provided by the law are not always black and white.
In order for any privilege to exist, a relationship covered by a privilege must exist. Even though many protected communications are codified in black and white, those rights are subject to interpretation. It is the circumstances of the case, the actions of the parties and the case law that colors the impact or even the existence of a privilege. For example, were the parties legally married? Was the physician at a roadside accident treating the defendant as a patient or a Good Samaritan? Does the social worker who overheard a conversation fall within the cone of secrecy? Was the attorney actually hired by the defendant to represent him? It is reasonable to believe that a client is planning a murder or is importing illegal drugs into the country?


As in THE MIDNIGHT CALL, with a little creativity and legal research, writers can challenge the traditional concept of keeping secrets. By developing compelling plots twists, writers will keep readers on the edges of their seats and screaming for more.

 

This article originally appeared in InSinC, the quarterly newsletter of Sisters-in-Crime, and may not be used without permission.

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Copyright 101: Catching the Bug


 
What the heck is © and what does it mean?We see the symbol everywhere, on paintings, photographs, movie credit trailers, magazines, CDs, and even on the Rights pages of books. Well, that little copyright bug represents a powerful tool in the writer's arsenal. This symbol protects you, you heirs and your work from theft and infringement, and signifies that you are the exclusive owner and author of the work.


Thanks to visionaries like Mark Twain and James Fennimore Cooper, in 1909, the United States enacted the first Copyright Statute, which recognized the necessity that artist's works be protected as their stock in trade. As the technological advances in the publishing, advertising, music and entertainments industry have blossomed, the law has been amended. The most radical revision occurred in 1976, which is the version that protects us today.


What does the Copyright Law accomplish?The Copyright law protects a work, in our case a "Literary Work" (material contained within a book, periodical, manuscript, phono-record, film tape, disk or card), from the moment it is created. From the first letter you type on your computer, or the first syllable penned on the page, your work is protected from infringement. It makes no difference whether the work is published or unpublished, both are entitled to equal protection under the law. In fact, any derivation (abridgement, translation, etc.) of your work is protected as well. You, alone, as the owner of your copyright, are entitled to reproduce, display and distribute your work for the term of your life plus seventy years.


Who does the law protect?If you are the original author and have not created a "work for hire," you are an author entitled to protection under the law. This means that you have not created the work within the scope of your employment, or have not been commissioned for the work. Under those circumstances, the copyright belongs to your employer. Therefore, if you have been hired by a magazine to write an article, or by a publisher to write a series like Nancy Drewor The Hardy Boys, the work does not belong to you and you are not entitled to file for copyright ownership.


What exactly does the Copyright Law protect?This is perhaps the most confusing aspect of the law. The statute states that a "Literary work" is expressed in words, numbers or other verbal or numerical symbols or indicia. Huh? In plain English, the statute covers your words, your expression, and your creation as an author. It does not cover an "idea". For example, Shakespeare's "Romeo and Juliet" is a story about star-crossed lovers. Numerous artists, including, Leonard Bernstein's "West Side Story", and Stephenie Meyer's "Twilight", E.L. James's "Fifty Shades of Grey" have reinvented this "idea" behind the tragedy. Each author is entitled to individual copyright protection because they have reinterpreted this universal idea into their own words. Tony and Maria's racially charged, gang related story set in New York City is different than the trope of warring medieval Italian families. So, in summary, your written words on the page are being protected, not the underlying idea. Generally, the law does not protect ideas, unless they are designs, inventions or processes, which are covered by the Patent Law.


Similarly, titles, phrases and slogans are also not protected by the Copyright Law. Phrases like "With a name like Smuckers, it's got to be good,"and "Good to the last drop" are protected by the Trademark Law, because they identify goods and services in the marketplace.


Finally, the law does not provide protection for works in the "public domain". These are works that are no longer subject to protection due to the expiration of their copyrights, or the failure to meet a requirement of the copyright law, allowing them to be used freely and without permission of the original copyright owner. Shockingly, Dostoyevksi's "Crime and Punishment", Robert Louis Stevenson's "Dr. Jekyll and Mr. Hyde", Kafka's "Metamorphsis" and George Orwell's "1984" all have lapsed copyrights and are available to published and reprinted without compensation to the writer's estate. Entry into the public domain explains why you can pick up the great classics by Jane Austin, Mark Twain and Jonathan Swift for free on your Kindle and at Gutenberg.org.

 

There is one exception where your work can be reproduced without infringement or compensation, and that is called the "Fair Use" exception. So long as your work is being used for educational, non-commercial purposes, the law does not consider the inclusion of your work in research, scholarship, news reporting, teaching and criticism, as being a copyright infringement.


How is the work protected?It's unnecessary to register, or deposit, your work with the U.S. Copyright Office at the Library of Congress in order to benefit from the protection of the law, however, there are several advantages to doing so. First, the date of your creation will be proof positive that you are the first in time to write your particular story. Second, if someone else writes or copies the identical story, this filing will help with the statutory enforcement of your rights and remedies against the infringer. Third, it's really cool to have that Copyright Certificate of Registration hanging on your wall. It's worth the thirty-five dollars invested in the filing fee to stake your claim on your brilliant work of art, and it's easy to do online at www.copyright.gov. Be forewarned, there's a backlog of filings, so you must be patient. It may take six to eighteen months to receive your certificate.

 

Besides filing your work with Copyright office, you must indicate to the world that you are aware of your rights in your work. We have come full circle back to our little copyright bug, ©, which must appear on your work, preferably your title page. If your work is published, the correct way method of implementing the symbol is: © year author's name, i.e.; © 2016 Jodé Susan Millman. If your work is unpublished, the correct for is Unpublished Work © 2016 Jodé Susan Millman.  If you place this notice on your work, the world will be informed that you have protected yourself, and the notice can be used as evidence against any infringer.


What are the remedies for infringement under the law?If someone uses your work without compensating you or without your permission, that act is in violation of your exclusive ownership rights under the Copyright Law. You will be entitled to an injunction, actual damages and loss of profits, the infringer's profits, attorney's fees, and statutory damages as permitted by the law. The infringer may also be subjected to punishment for criminal infringement if they used your work for commercial gain.

 

This thumbnail sketch highlights the writer's basic copyright protections available under the voluminous U.S. Copyright Statute, and the statute, filing information and additional references can be found at www.copyright.gov.

 

The takeaway is that your precious literary masterpiece is protected from the moment of creation. Don't be afraid to catch this © bug, it will immunize you, your work and your heirs from the literary pirates of the world.
 
 
This article originally appeared in InSinC, the quarterly newsletter of Sisters-in-Crime.
 
 
 

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PUBLIC DOMAIN - GOING PUBLIC

 

 

 

     On January 1, 2019, the doors of Public Domain burst wide-open making works published in 1923 free for all. This means that the copyrights on these works have expired and these materials are now available for education, research or creative endeavors without needing to obtain permission of the copyright owner and incurring a royalty fee.


     Why is this significant?It is significant because for the past 20 years no works have entered the public domain. In 1998, Congress passed the "Sonny Bono Copyright Term Extension Act," named for the late singer-songwriter and ex-husband of Cher, which added an extra 20 years of copyright protection to the term existing under the 1978 copyright statute. This 20-year hiatus on works entering the public domain raised the limit of copyright protection from 75 years to a maximum of 95 years. Disney was one of the loudest proponents of the extension as the 1928 cartoon "Steamboat Willie," which featured Mickey's Mouse's first appearance on the silver screen, was set to head into the public domain in 2004. Under the copyright extension law, Mickey, and Disney, have obtained a reprieve until 2024.


     Why should we care about the influx of materials into the public domain? As it turns out, great works of literature, including those found in the Cannon of English Literature, have lost copyright protection. Novels such as:
          Miguel De Cervantes's "Don Quixote"
          Oscar Wilde's"The Portrait of Dorian Gray"
          Kahlil Gibran's "The Prophet"
          SigmundFreud's "The Id and the Ego"
          James Joyce's"Ulysses"
          Willa Cather's"A Lost Lady"
          Agatha Christie's "Murder on the Links" and "The Murder of Roger Ackroyd"
          Daniel Dafoe's "The Fortunes and Misfortunes of the Famous Moll Flanders"      

 

     Madeline L'Engel's"A Wrinkle in Time" and my personal favorite, Lewis Carroll's "Alice's Adventures in Wonderland; and Through the Lookinglass" have tumbled down the rabbit hole into the public domain.

 

     Pretty horrifying right? Well, the list also includes Robert Frost's epic poem"Stopping by the Woods on a Snowy Evening," Cecil B. DeMille's silent movie"The Ten Commandments," and Woody Guthrie's homage to the great depression,"Blowin' in the Wind".The list is exhaustive and the highlights of 2019 Domain Day can be found at  https://law.duke.edu/cspd/publicdomainday/2019/.

 

     From a commercial standpoint, the change in status renders these valuable pieces of art worthless to their creator's estates. They will no longer generate royalties from film, literary, clothing and tchotchke licensing as well as from the publication of books.  It is now possible to print a "And miles to go before I sleep" t-shirt, produce a rap musical of Dorian Gray, write a screenplay of  "Don Quixote", record an audiobook of "A Wrinkle in Time" or adapt "The Murder of Rodger Ackroyd" into a novel, if inspired to do so, without paying a royalty. But, the true value of these historic works accrues to online publishers such as Google Books, the Internet Archive, https://archive.org, Open Library, https://openlibrary.org, Project Guttenberg, https://www.gutenberg.org, and HathiTrust Digital Library, https://babel.hathitrust.org, which potentially can disseminate thousands of books online for free. Ebookfriendly.com, https://ebookfriendly.com/free-public-domain-books-sources/, provides a list of the top twenty-five site for public domain books to download, in case you're interested in a free read or need inspiration for your next project.

 

     Proponents of the public domain have long argued that the 20-year hiatus created  a wide gap on the internet to access of information about 20thCentury art and restricted the public's ability to study and understand that century. Ironically, just as technology expanded the ease and ability of research, the public domain was locked down. With the release of works into the public domain, unhampered access to scholarship will be affordable for teachers, historians, writers and researchers to translate, annotate, combine, excerpt, adapt and publish online. Films, newsreels and documentaries disintegrating in archives will now be candidates for preservation and public access. Mrs. Smith's third grade class will be able to sing or create a play around Felix Salten's "Bambi".

 

     How does the public domain affect creative writers?During the recent editing of my novel, "The Midnight Call," my editor pointed out several potential instances of copyright infringement because I had included excerpts of poems, songs and writings in my manuscript. She rightfully suggested that I reconsider using these reference unless they were absolutely necessary to the plot, and I was satisfied that the works were in the public domain. Otherwise, I was bound to obtain permission and/or pay a fee. While the following example is specific to my work, the lesson learned is worth sharing with all writers of fiction.

 

     In a somber scene, my pregnant attorney protagonist, Jessie Martin, is attending the funeral of a teenage boy who had been brutally murdered by my protagonist's mentor. She had been summoned to the murder scene by her mentor and later discovered the teenage victim had also been her close friend. Jessie is sitting in the church listening to the reverend recite a passage from W.H. Auden's moving poem, "Funeral Blues".
           Stop all the clocks, cut off the telephone
           Prevent the dogs from barking with a juicy bone
           Silence the piano, and with muffled drum
           Bring out the coffin, let the mourners come.

 

     I thought that the poem fit Jessie's mood and communicated the shock and sadness of the homicide's aftermath to the community. However, after discovering that the poem was written in 1936, it was necessary to determine whether the poem had slipped into the public domain. In addition to the expiration of the copyright term, works can enter the public domain if the owner failed to follow the copyright renewal rules or they dedicated the work to the public. Stanford University provides an amazing searchable database of copyright renewals for books published between 1923 and 1963 at https://exhibits.stanford.edu/copyrightrenewals?forward=home. Works published after 1964 had their copyrights automatically renewed by statute, and as mentioned above, works prior to 1924 are now in the public domain.

 

     Using this database, I confirmed that "Funeral Blues" was not in the public domain, and I located Auden's estate at www.audensociety.org. They maintained a page outlining the procedure for obtaining permission from Random House to quote the poem. Suitably dissuaded by the potential hassle and cost, I deleted the lines and simply indicated that the poem had been read aloud at the funeral. Hopefully, my readers will get the reference.

 

     I had also quoted the "Hush Little Baby" lullaby. Thanks to Google, I confirmed that the nursery rhyme was attributed to Mother Goose, and since her true identity remains a mystery and her rhymes pre-date the 17thCentury, I was in the clear, fortunately.

 

     Without a doubt, determining whether a work is in the public domain can be a tricky issue, however Cornell University has created a detailed chart of the copyright terms, which can be found at https://copyright.cornell.edu/publicdomain. This site also offers resources on copyright basics and how to obtain copyright clearances.

 

     Honestly, copyright and the public domain were the last issues on my mind when I was writing my manuscript, but the lesson will follow me through all of my future projects. Fortunately, resources such as the Cornell and Stanford University websites exist to help writers navigate the often-murky public domain waters and determine if works have gone public. Don't forget to use these handy websites; they're in the public domain.
 

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Some Things to Talk About : Speaking about your Book and Yourself

        For me, Savannah, Georgia is a magical city. With the Spanish Moss dripping from the gnarly live oaks hanging over the antebellum mansions, fountains and charming squares, you can't help but feel that you're in a ghost story.
        On Saturday, February 16, 2019, Savannah was bursting with stories and attending the 12th Annual Savannah Book Fest to hear those stories was a treat. With over forty nationally recognized authors to choose from, it was challenging to select my itinerary for the day. This year, I decided upon three debut fiction authors and one perennial bestseller with one particular goal in mind. While I was certainly interested whatthey had to say about their novels, I was more interested in howthey made their presentations.
        As I stand on the threshold of launching my own book tour for my debut novel, "The Midnight Call", on June 18th, I wanted to see how the pros did it. I wanted to learn from their strengths and weaknesses, and pass it on to other writers traveling the same exciting path.
         My day began with Mira T. Lee, whose hands trembled as she candidly spoke about the moving inspiration for her novel, "Everything is Beautiful" – her mother's death and a family member's struggle with mental health. The narrative is a complicated, multi-cultural examination of how a young woman's mental health crisis can impact the entire family. Ms. Lee spoke from the heart and as an advocate to de-stigmatize mental illness. It took great nerve for her to emotionally open herself to a group of strangers and Ms. Lee deserves credit for her honesty in speech and on the page.
        Dr. Delia Owens is a well-respected naturalist who has spent decades studying wildlife in the African wilderness. She is a woman who was brought up roaming the marshes of Georgia and has spent most of her adult life with minimal human contact. She said that she felt more at ease with hyenas than humans. Comfortable with lecturing about her scientific studies, Dr. Owen was shy about discussing her debut novel "Where the Crawdads Sing," which has become a New York Times #1 Bestseller and has been optioned by Reese Witherspoon's Hello Sunshine. It's a coming-of-age story about a girl who's abandoned by her parents and wanders the North Carolina marshes, and who becomes the suspect in the murder of a popular teenage boy. Dr. Owens revealed her own profound loneliness and isolation, and how the novel served as a connection between her naturalist and fantasy worlds.
        By far, my favorite presentation of the day was by Soniah Kamal, who has rewritten Jane Austin's "Pride and Prejudice" set in her birth country of Pakistan. "Unmarriageable" is the fulfillment of her life-long obsession with Austin's novel, as in Ms. Kamal's mind, there is a dynamic parallel between the patriarchal societies of contemporary Pakistan and 19th Century England. Women must get married and marry well. Ms. Kamal has lived and traveled around the globe, and tears filled her eyes when she spoke of the novel's importance to her life, her family, her culture and the stability she now finds at home in Georgia.
        I was truly charmed by Ms. Kamal, her earnestness and embarrassment over the acclaim and attention that her novel and her Ted-X talk have brought her. In fact, I felt compelled to give her a hug of reassurance after her speech.
        The long day wrapped up with a real pro-Patti Callahan Henry, who's written fifteen best-selling novels. "Becoming Mrs. Lewis" is her first foray into historical fiction. Ms. Callahan Henry spoke with great fervor and passion about her exhaustive research into the life of Joy Davidson, the wife and collaborator of C. S. Lewis. Her book is a celebration of the talented and short-lived Joy Davidson Lewis, and has been recognized by Mrs. Lewis's son as an accurate depiction of his parents.
         The style of each author's presentation was as unique as her novel. However, I composed a list of the important common threads that serve as my take away from the day's festivities. They are a succinct guide to keeping an audience on the edge of their seats.
         1.     Give your personal history. Who are you? Where were you born? Are there any relevant anecdotes about your family?
        2.     State your motivation/inspiration for writing your novel. Why is this particular story deeply personal to you?
        3.     Describe the themes in your book. What universal lessons and truth are communicated in your story?
        4.     Elaborate on your research. Did you go somewhere unusual to gather your character's backstory? Did you become an expert on a certain topic before fleshing out your plot?
        5.     Discuss your writing process. How long did it take? Did you outline or write by the seat of your pants? Did you work in alone or participate in a writing group?
        6.     Introduce your characters, plot, setting and the points-of-view. Spark your potential readers interest in the people and world you've created.
        7.     Be honest. Speak from the heart. Don't fake it. The audience will sense your insincerity.
        8.     Communicate your excitement about your novel. It's contagious.
        9.     If time, read from your novel. The audience came to hear you interpret your work.
       As I prepare for my book launch and tour, I will take my inspiration from Mira, Delia, Soniah and Patti. Like them, I want my audience to discover the joy that I've found in writing my debut novel, and share in that joy as they read my book. Hopefully, I'll be able to control my nerves when I'm faced with a room of strangers. And hopefully, I'll be as successful, open and honest a speaker as these four women were.
 
 
 
 

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 Copyright Royalties : No R-E-S-P-E-C-T

       

 

 

        The recent passing of Aretha Franklin has highlighted the issue that artists, whether they are musicians, visual artists or writers, truly get no R-E-S-P-E-C-T in terms of statutory royalties due under the copyright laws. When Ms. Franklin died in August 2018, her cry of empowerment, "Respect", had been played over seven millions times on American radio stations, and she'd never received a penny for any of these performances. That's because under the copyright law, only writers and publishers of musical compositions, in this case, Otis Redding, are entitled to receive royalties.
        One major impediment to receiving compensation is that the copyright law has been weak in keeping pace with technology. In the 1990s, Congress passed a bill to allow performing artists to collect royalties from internet and satellite radio, but songs recorded before 1972 were exempt. In 2014, the "Respect Act" (Respecting Senior Performers as Essential Cultural Treasures Act- named with the blessing of Aretha Franklin) was designed to remedy the problem by requiring that digital music streaming services pay the same royalties as terrestrial radio for songs prior to 1972. The act was referred to committee and it died there. However, in January 2018 the "Music Modernization Act" was introduced to accomplish the same goal, passed the House and was referred to Senate Judiciary Committee for review. Unfortunately, the law only protects the copyright owner, not the artist.
        In January 2018, General Motors was sued by Adrian Faulkner (aka Smash 137), a Swiss graffiti artist, for using one of his art pieces in an ad campaign called "Art of the Drive". Graffiti art is entitled to copyright protection, but GM claimed that since the artwork was installed and displayed on a parking garage, it was actually an architectural work which is exempt from copyright protection. The matter is pending before the California federal courts to determine whether Mr. Faulkner is entitled to payment from GM for the use of his art.
        How do Aretha's and Mr. Faulkner's sad stories relate to writers? Because, similar to musicians, we are faced with the issues of contractual and copyright royalties which are sorely out of date.
        In publishing, an advance is a lump sum amount that is paid to the writer before the book is published, and is credited against income due to the writer by the publisher as royalties for the sale of a book. Usually, one-half is paid at the time of the signing of a publication contract and the balance is paid upon the acceptance of the manuscript. Many factors are calculated into the size of the advance, such as the success of the last book, the topic, and author's reputation. For example, last year the Financial Times reported that Michelle and Barack Obama had scored more than $65 Million for the rights to their memoirs and books deals. The previous record, $15 Million, was held by Bill Clinton for is 2004 memoir, My Life.
        The advance is the writer's hedge against poor book sales as generally there is no repayment of unearned advances back to the publisher. Mr. Clinton had no worries as his book sold a record 400,000 copies on the first day, and neither to the Obamas based upon their track records.
        Today, many independent publishers are opting to offer the writer a greater share of the profits as substitute an advance. This spreads the potential loss between the writer and publisher, and makes the arrangement much more of a partnership between the two.
        Royalties are a payment made by the publisher to the writer for each copy of the book that is sold. This is a key term that is negotiated in the Publishing contract between the writer and the publisher, and it is usually paid on the "net price" of the book rather than the "list price", or cover price. This means that the royalty is calculated after the deduction of the publisher's expenses discounts to the bookseller or wholesaler. Often there is a discount of 40%, so if a book retails for $14.99, after subtracting the 40% ($6.00), the royalty will be paid on the balance, $8.99.
        The Writer's Legal Guide: An Author's Guild Desk Reference (4th Ed.) and Model Book Contract, www.authorsguild.org, set forth schedules for standard royalty payments for trade, deep discounts, trade and mass market books starting at 10% of the retail or list price, and more established authors can often obtain better terms as high as 15%. New writers should beware that it is often difficult to obtain the 15% upon the "list price".
In contrast to the contractual royalties, there are statutory royalties due to the writer under the copyright law. However, there are several huge provisos. First, under the copyright law, the "Fair Use" exception permits the free use of the work without permission of the author or copyright owner when it is used for educational, criticism, comment, news reporting, scholarship or research.
        It is not "fair use" to copy or use the work for a commercial motive in the educational setting, such as the inclusion in a textbook or classroom lessons, unless the material is in the public domain. For example, if a high school English class is reading a portion of Elie Weisel's Night, and the teacher includes excerpts in their materials, a copyright license fee is due Mr. Weisel's estate for such use. To qualify as "fair use" the use should be spontaneous, like making a photocopy for research, not widespread dissemination of the materials.
        Another issue is the mechanism for monitoring the collection of the statutory copyrights monies due an author. Although the nature of our writing makes us all amateur detectives, it would be virtually impossible to locate every magazine, newspaper, school, or Internet site that has used our work. Fortunately, the Authors Registry, www.authorsregistry.orgis a clearinghouse designed to monitor the use of literary works, collect the fees due U.S. resident authors and distribute them. To date, they have collected and distributed over $30 Million in statutory copyright license fees to U.S. writers.
        Many literary agencies and organizations such as Sisters In Crime, Mystery Writers of America, and The Authors Guild are enrolled with the registry, allowing their members to obtain a free listing in the registry. Once an account is created, the registry will not only collect the fee but they will maintain the necessary tax records of the transactions. They charge a minimal 7.5% commission for the money they distribute.
        As authors, we are extremely fortunate that the Authors Registry exists, and as members of Sisters In Crime, we should take advantage of the free listing to protect our rights and collect our statutory royalties.        
        Similar to visual artists, writers are not entitled to any resale royalties of books. In July 2018, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that visual artists can no longer receive royalties for the resale of their works in California and invalidated the California Resale Royalty Act for art sales conducted after the 1978 effective date of the Copyright Act. In "The Estate of Robert Graham, et al vs. Sotheby's Inc.," artists Chuck Close and Laddie John Dill filed a class action lawsuit against Sotheby's for failing to pay royalties under the California act. The court held that the state law was in conflict with the 1978 copyright law's first sale doctrine, which provides that once a copyright owner sells the work for the first time, they lose control over future sales.
        While massive, wall-size paintings like Chuck Close's are different than a standard book, the same restriction applies to writers. Recently, a friend discovered a first edition of Truman Capote's "In Cold Blood" in her bookcase. An appraiser valued the book at $6750.00. While she does not intend to sell the book, if a resale law existed, she would owe the Capote estate a nice chunk of change upon any sale of the volume.
        Aretha's passing should be a call to arms for all artists. Whether we are painters, sculptors, clothing designers, graffiti artists, playwrights, musicians, songwriters or writers, we work hard to bring works of personal expression into the world. As writers, we possess contractual rights that can be negotiated with publishers and we have statutory rights that exist from the moment of creation. Those rights should not be taken for granted and we should do everything within our power to protect, preserve and receive their benefits due under the law.
        Perhaps, we should use the power of words to become more vocal and assist all artists to expand their rights under the law as well.
           
 

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2018 Adriance Honors

The Top 5 Things that you didn't know about me and my relationship with the library
Many Thanks to the Friends of the Poughkeepsie Public Library District for his prestigious award

     On October 15, 2018, my friends, family and supporters of the PPLD gathered to celebrate the 32nd Adriance Honors. Chris Silva, Executive Director of the Bardavon 1869 Opera House was the master of ceremonies as her presented myself and Mark and Julie Nelson with the awards.

 

     I have had a long, wonderful relationship with the Poughkeepsie Library and below is the speech I presented in honor of this wonderful occasion.

 

 

 

     I would like to thank the Friends of the Poughkeepsie Public Library District for this prestigious Adriance Honor.


     Many of you have known me for a long time. We've worked together, played together and some of us have even rock and rolled together.


However, there are probably things about me that you don't know, especially concerning my life-long friendship with the Poughkeepsie Public Library District. So, I'd like to share the Top 5 things you didn't know about me, and my relationship with the library.


     1. Throughout my life, the library has played an instrumental role in my development as a person. My father, Sandy Millman, was a native Poughkeepsian and, among other things, an author who loved spending time at the "liberrry" as he called it. My mother, a Baltimorean, calls it the "librey". Whether my Dad was working on a project with Issac Assimov or a travel article or a book, you could find him at Adriance doing research among the stacks.


     As a kid, my parents brought me to the musty Children's Room located in the basement of Adriance Memorial Library. There were no kindles or Ipads, and kids didn't really own books except an Encyclopedia, if we were lucky. If we wanted to read a book, we'd borrow them from the library.


     Now, I was an avid reader –Nancy Drew, To Kill a Mockingbird and A Wrinkle in Time – were some of my favorites – so I was there a lot.    


     2. When I attended Forbus Junior High School, and my friends were all becoming Candy Strippers at Vassar Brothers Hospital, my first volunteer job was at Adriance Library. I stacked the shelves and I especially loved the Children's room where I'd read to the kids and travel around the city in the Story Bus.


     Somehow, I think I knew back then that literature was going to play an important role in my life.


     During High school, if my assignments required more in depth information than could be found inside our white and green leatherette World Book Encyclopedia, the library was the place to go. And yes, I occasionally used a trip to Adriance as a subterfuge for hanging out with my friends.


     After law school, my first assignment as Assistant Corporation Counsel for City of Poughkeepsie was, you guessed it, Adriance Memorial Library where I worked closely with Kevin Gallagher on a variety of legal matters affecting the library.


     3. When my kids, Max and Ben, were little, we'd make weekly trips to see Barbara Hayman Diaz in the Children's rooms. At that time, I had the honor of serving as a Library Trustee when the town and city library districts were about to merge, and the proposition for the new tax was placed on the ballot. That was an exciting time to be a Trustee and to see my sons' excitement every time they attended a story time.


     The library fostered their desire to explore the world and helped contribute to the interesting and successful people they are today.


     4. Some of you know that my Dad and I have written a guide to Broadway called SEATS, but you don't know that I have a dark side. Oh yes, I'm a crime fiction writer. I like to read this genre as well, the bloodier and gorier the better. All of the murders in my novels are inspired by crimes that have occurred in the Hudson Valley, and for some strange reason, there's been a lot of murder and mayhem in the Queen City. My historical research always leads me back to the microfliche at Adriance. And I'm proud to say that I've finally mastered those damn machines. Tom, it's time to digitize the back issues of the Poughkeepsie Journal. Please!


     5. Currently, as one of the lead partners of Movies Under the Walkway, the library works closely with our family foundation, the Millman Harris Romano Foundation, as well as Walkway Over the Hudson and New York Parks, to produce our movie nights. For the past four years, they've provided guidance in operating the free summertime movie program; organized children's activities like hoolah hoops, karate demonstrations and the Reptile Guy, and they've been present onsite to sign up a whole new generation of library goers. They've also generously loaned their graphic artist to create the beautiful posters, banners and printed materials that we use to promote our movie nights.


     6.  I know that I said FIVE, but here's a bonus fact. In the 1970's, I was a rock and roll DJ on WPDH, which is where I met my husband, Mike Harris. That has nothing to do with the library, except that I wouldn't be receiving this award if not for his support in everything that I do.


     As you can see, I've had a long, lasting relationship with the Poughkeepsie Public Library District. Longer than most of the other friendships in my life. The library has been a good friend, and I've tried to give back whenever possible.


     I'm sharing my Top 6 with you because I hope that you'll think about your life and the part that the library has played in it. I guarantee that there's not one person in this room who wouldn't consider the library as a family friend. It's been an implacable community resource for your grandparents, parents, children and grandchildren as well.


     It is incumbent upon each of us to continue the legacies of the Poughkeepsie Public Library District and the Friends of the PPLD as information technology expands and changes our world so that the library will continue to provide its excellent services, classes and programming to your children, grandchildren and the community. With your generous support, the library will remain a place of unification that is accessible and open to everyone, and a place that fosters unhampered access to the free exchange of ideas.


     With an honor like this, I'd like to acknowledge Rob Dyson and the Dyson Foundation for offering me the platform to support the library and many other worthwhile non-profits throughout the Hudson Valley.


     I also must thank my parents for instilling in me the importance of public libraries, my children for reminding me that libraries are not just for grown-ups, my friends for showing up tonight, and as I mentioned, my husband for encouraging me draw outside the lines.


     Also, you know that when you have a true friend, you take for granted that you appreciate one another. You don't have to constantly reassure them of your friendship because you know they're there for you. It is unspoken between you.


     That's why receiving the 2018 Adriance Honor from the Friends of the PPLD is so special and meaningful to me. Thank you again.
 
 
 
 
 

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Choosing a Business Entity : Mind your Business

         

 

 

          In July, Immortal Works Publishing of Salt Lake City, Utah accepted my debut thriller novel, The Midnight Call, for publication. As a writer, this is a dream come true, and as an attorney, it raised certain questions about how to handle the business side of writing.
          We all know that there is the writing and the business of writing. The former is act of creative expression, where the thoughts fly out of our heads quicker than we can capture them on the page. The later is the dollars and sense of the writing biz. It's the monetary investment in your craft - joining organizations like Sisters in Crime, taking classes and seminars, attending conferences, hiring an editor, self-publishing expenses, book promotion and touring. It's also the Holy Grail – getting a publishing deal and receiving royalties.
          For many years, I've been writing a theater guide series, SEATS : NEW YORK, but the business of non-fiction writing is a completely different animal then fiction. I've experienced the process of trying to figure out what kind of business entity would be best suited for me. In this article, we'll review they types of business entities so that you can make an informed decision when you mind your business.          
          Many authors wonder what legal form their writing business should take. Should it be a sole proprietorship, a partnership, a corporation or an LLC?


Sole Proprietorship


          As you're reading this article, you are a sole proprietorship. Whether you write in your real or pen name, you are the owner of your own writing enterprise. All of your expenses and profits are automatically income and expenses for you, personally. Also, if you get sued, you are personally liable as well.
          The upside to a sole proprietorship is that it is absolutely free. If you are using a pen name, you could file a Certificate of Doing Business with your County Clerk to protect that name. For example, "J.K.Rowling d/b/a/ Robert Galbraith," is a DBA, although she's undoubtedly protecting her vast empire through corporations and subsidiaries.
          Even if you're not J.K. Rowling, and your making $50K a year from your writing, then a corporation or LLC might be helpful.


Corporation


          What is a corporation? It's an entity created by filing a Certificate of Incorporation with the Division of Corporations of your state. In my case, it would be the New York State Department of State, Divisions of Corporation, State Records and UCC. Here is the link: https://www.dos.ny.gov/corps/bus_entity_search.html. Forms are available on the website to create corporations online for a minimal filing fee. In addition to the Certificate, you would create a business with by-laws, minutes, directors and issue shares to your company. All shareholders would share in the profits and losses of the writing business as well as the management of the operation. Can you imagine getting in on the ground floor of the Pottermore empire?
          If you hit the big time and receive a fantastic advance, a few good reasons for incorporating are for estate planning purposes or to immediately shift income to family members in lower tax brackets, or to raise capital for projects like a theme park or movie based on your book.
          There are two types of corporations: "C" Standard corporations, like most companies on the stock exchange or sub-chapter "S" corporations which is a "flow through" entity so that income is treated like personal income. "C" corporations are taxed twice – once when the business when it earns income and, again, when the shareholder when the income is disbursed to them. With the additional IRS required tax filings, corporations can be an expensive way to operate your writing business. For a deeper discussion of taxes and bookkeeping, check out The Writer's Legal Guide: An Authors Guild Desk Reference at www.authorsguild.org.
           In my situation with SEATS, I had a small research and graphic art team working with me, had made investments in software and had inherited the franchise from my father, Sandy Millman. SEATS was really a family affair, so we formed a Sub-Chapter S corporation. For a while, SEATS was a bestseller for Hal Leonard Publishing, but over time, royalties dwindled and it became expensive to maintain the entity. Each year we had burdensome corporation tax filings with little income. Ultimately, after consulting with our accountant, we dissolved the corporation, but it's had served it purpose at the time.


Limited Liability Company


          Another choice is an LLC or Limited Liability Company, which is similar to a partnership without certain IRS restrictions like a corporation. In New York, you can create an LLC with the Article of Organization forms available online at https://www.dos.ny.gov/corps/llccorp.html, but take notice of the publication requirements. A notice of the formation of an LLC must be published in the newspaper as required by statute. An LLC can be organized with one or more members, and insulates the members from personal liability. Like a Sub-Chapter S corporation, an LLC is a "flow through" mechanism where income or loss flows directly to the writer or partners.


Partnership


          In contrast, a partnership is a sole proprietorship with more than one partner. It is extremely flexible, often formed with a handshake. However, it is advisable to put your agreement down on paper, just in case you split ways. I've always advised clients who are creating a partnership to put their agreement in writing so that they will remain friends in the future. There's nothing more heartbreaking than losing a friend or family member over a dispute concerning money, as many plots have described. Irwin Shaw's Rich Man, Poor Man and Cynthia D'Aprix Sweeney's The Nest, are two good examples of familial contention over the mighty dollar.


          With the newest chapter in my writing career, I've opted for an LLC. For tax purposes, it was easier to organize my accrued writing expenses as a separate entity. This time, the bookkeeping will be simplified when it comes to April 15th. And when the royalty checks being to arrive, I'll be all set.
          Which entity is best for you? The decision as to whether to become a sole proprietorship, LLC, partnership or corporation shouldn't be taken lightly. It depends upon your professional goals, income, desire for control, and estate and tax planning, just to name a few considerations. If you're an emerging writer –take it slow. It's rarely cost effective to rush into a corporation.
          I hope that my personal experiences have provided insight into the benefits and burdens of the business of writing. As you know, each writer's situation is different, so it always best to seek professional advice from a trusted tax professional and attorney to help you mind your business.

 


 This article appeared in the September 2018 issue of inSinC Quarterly, the newsletter of Sisters in Crime.
 

 
 
 

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