And so I thought what better time to recycle an old article? Especially since I’m going to start posting periodic Writer Wednesday blogs with random writing tips (not to be confused with my eldest daughter’s recent cry of “Random People Being Beat Up by Monkeys!” — someone has been watching too much iCarly!)

Please note that this article was written in 2000, back in the day when I was still practicing law full-time; it has not been updated, but the basic material is still applicable. Also, this article isn’t intended to be legal advice, but rather a jumping off point for the discussion/understanding of areas of the law that you might trip over during your career. My goal is to either prevent you from tripping altogether, or at least give you some information to help break the fall.

Remember, the first and foremost rule … when in doubt, ask an attorney!

COPYRIGHT

Copyright infringement has been a hot topic recently, so a review of the basics of copyright law is probably a good idea.

Who Has A Copyright? You do, so long as you’ve written something. Years ago, copyright protection required registration. That is no longer the case. Now, your work is immediately copyrighted the moment it comes into existence. (While it is no longer necessary to include a copyright symbol — © — there are a variety of reasons why it is still a good idea to include that symbol, your name, and the date. For example, by doing so, you will be helping to refute a later claim by a copier that the infringement was “innocent.”)

So Why Bother Registering? So why have you (or your publisher) been bothering to send in all those bothersome copyright forms (and fees)? Because registration is a prerequisite to recovering certain damages if someone infringes your work. Without getting into too much detail, the general rule is that without registration, you can recover only actual damages (money that you can prove you lost because of the infringement). That can be hard to prove. But if you’ve promptly registered, and if you prove infringement, you are entitled to recover damages within certain limits set by statute – without having to prove you actually lost a dime.

So If A Million Monkeys Typing For A Million Days …? Copyright is different from trademarks and patents. Like the name suggests, copyright requires copying. If someone really does come up with an identical idea (and text) entirely on his own, there’s no copyright infringement. In fact, in order to prove copyright infringement, you have to prove that the defendant had access to your material.

This Is Different Than The Law of Trademarks. If I’ve been living in a cave all my life, open a web-based business, and decide to use a logo that looks like two golden arches or to call my company “Microsoft,” I’ll have problems even if I’ve never seen a McDonalds or heard of Bill Gates’ company. Similarly, if I invent a widget, but the widget has already been patented, the patent-holder can prevent me from manufacturing my widget – even if I didn’t copy his widget, and even if the patent-holder has no desire to manufacture widgets himself. In copyright, it’s different. So if our million monkeys coincidentally cranked out the latest John Grisham novel, there would be no copyright infringement (unless maybe the monkeys were reading Grisham during their lunch breaks).

I Have This Idea About a Guy and a Girl… . An “idea” is not copyrightable. So if you mention to your friend who works in Hollywood your idea about a girl who falls in love with the man of her dreams after hearing him on a radio talk show, and a year later “Sleepless in Seattle” hits the screen, you don’t have a copyright claim. (You might have another type of claim, however.) While an idea isn’t copyrightable, the “tangible expression” of that idea is. For writers, that means the specific words on the page that make up the way you tell your idea – in other words, your story, or even the plot line or character treatment, if sufficiently developed.

When Can You Use Someone Else’s Work? There are circumstances when you can copy someone else’s work into your own. Copyright law provides for a doctrine called “fair use,” and if you meet the elements, you can use small amounts of copyrighted work in your own. As a fiction writer, this probably won’t apply to you, primarily since you are writing for a commercial purpose. Fair use generally applies in educational contexts, and specific factors must be weighed in determining whether the exception applies. Rule of thumb: Assume fair use does not apply and don’t use someone else work within your own.

Criticism may be a fair use. Parody is another example of a situation in which you might be able to use pieces of someone else’s work without infringing, as the Supreme Court made clear when it held that 2 Live Crew’s version of “Pretty Woman” didn’t infringe the copyright on the original recording by Roy Orbison. Again, don’t assume this applies to you. Where the purpose of your work is not to parody the target work, but instead to comment on social issues through satire, your work may not qualify for fair use. About the only time you should feel comfortable using someone else’s work is when you either have their permission (in writing) or the work is in the public domain. When in doubt, don’t use it without seeing a lawyer.

When Is A Work In The Public Domain? Copyright is not perpetual. After a certain period of time — generally life plus fifty years (the law changed in the 70′s, and I’m not going to set out all of the possible parameters) — a work falls into the pubic domain, and anyone can use it for any purpose.

So I Can Do A Modern-Day, Funky Movie of Romeo and Juliet? Well, yes and no. You can take Shakespeare’s story and set it modern day, but you can’t copy from the movie starring Clare Danes and Leonardo DiCapria. The producer of that movie has what’s called a “derivative copyright,” meaning he has a copyright on everything that’s new and not a trivial addition. Similarly, Ted Turner has a derivative copyright on the colorized version of some classic movies — even though the underlying film is in the public domain. So if you do your modern day Romeo and Juliet, who’s going to know where you go the material? Well, it might just be a jury. Rewriting a public domain story that’s already been reworked by someone else can be tricky business. My advice? See a lawyer before investing too much time and energy, document everything, and save all your copies and drafts.

Do I Own The Copyright Or Does My Publisher? Copyrights are property, and can be transferred just like your house or car. So it’s possible that someone else could own the copyright on something you wrote. Generally, however, you own the copyright, and you assign to a publisher a bundle of rights that goes with that copyright, such as North American rights, foreign rights, book club rights, etc. Also, if you are an employee and part of your job is to create written material, it is possible that your work falls within a particular category that makes it a work-for-hire, and your employer owns the copyright. Remember that you cannot orally transfer all of the bundle of rights that comprise copyright. Some of these rights may be transferred only in writing.

This Is Just Fascinating. How Can I Learn More? If you want basic information on copyright, you can call the copyright office at (202) 707- 3000, or visit the website at http://lcweb.loc.gov/copyright. At the risk of sounding like a broken record, for issues beyond the basics, you should seek the advice of an attorney.

TRADEMARKS

What Could This Have To Do With Writing Novels? Good question. And the answer is “not much.” Unless you decide to turn yourself into your own publishing company, as a writer, you probably won’t be dealing with a trademark. But where trademarks can enter your writing is when you have your heroine xeroxing the secret formula, or your hero rollerblading on the veloway. By using a trademark in that manner, you’ve just weakened the trademarks held by Xerox® and Rollerblade®. Those companies would prefer your heroine photocopy the documents, and your hero in-line skate.

Instinctively, you might think that the company would be flattered, but legally it’s a huge problem for these companies. A mark can become so prevalent that it becomes “generic.” And, once a mark is generic, it’s no longer a trademark, and anyone can use it. “Aspirin,” “murphy bed,” and “cellophane” are all trademarks that became generic and are now freely available for use. So either use the descriptive work or the trade name with the descriptive word (i.e., photocopy or Kleenex tissue) or include the ® symbol after you use a trademark in your writing (the ® is for trademarks registered with the trademark office and the TM simply means that the mark is considered a trademark (but isn’t registered).

DEFAMATION

What Is Defamation? Defamation generally means a false statement about someone (our plaintiff) that injures his or her reputation. It falls into two categories: libel (written defamation) and slander (spoken defamation). Because of free speech implications, there are various standards below which the defendant’s conduct must fall in order for the defendant to be held liable. Which standard applies depends on the type of plaintiff, the topic, and the state (since most libel issues are determined by state law).

Huh? For example, the Supreme Court has said that if the plaintiff is a “public figure,” then he must prove that the defendant made the statement with knowledge that it was false, or with a reckless disregard for the truth or falsity of the statement. That’s a pretty high standard, and the reason goes back to the First Amendment. A person can be a general public figure, or a public figure for a limited purpose. Your average Joe, however, not involved in anything of pubic interest, only has to prove a minimal amount of fault before he can recover for defamation. Each state can set what that level of fault is (and could theoretically set it at the same high level as for public figures). Most states say mere negligence is a sufficient basis for liability.

But What If I’m Just Writing Fiction? For the most part, the law of defamation is something you should be aware of if you are writing non- fiction, since that is the most likely scenario under which you will be discussing real people in your written work. However, it is conceivable that you will use real people in works of fiction. Perhaps your characters appear on the Jerry Springer show. Don’t defame Jerry, even if you don’t refer to him by name. Or perhaps you attended a session with a psychologist who conducts group therapy in the nude, and decide to use that incident as a basis for your novel. If you only thinly disguise the psychologist, and include false information, you may be subjecting yourself to a defamation suit. That is what happened in a 1980 California case.

The California court said that the issue wasn’t whether the work was fiction, but whether a reasonable person reading the book would understand that the fictional character was, in fact, the plaintiff, acting as described. Because publication to only one person other than the plaintiff and defendant is sufficient to support a claim for libel, it wouldn’t matter if only one reader clued in that the plaintiff formed the basis for the “character.”

OVERVIEW

Obviously, there are a lot of scenarios involving legal issues that can arise while you’re writing a book. In addition to the topics in this article, you may be faced with concerns about privacy or similar topics. This article is in no way comprehensive, nor is it intended as legal advice, either generally or with regard to specific works. If you think you may have a legal issue, the best thing you can do is consult a lawyer. If cost is your concern, contact the local or state bar association. It may be able to refer you to a lawyer who does low or no-fee work for artists and writers.

Today, it’s another short film that I just loved. Very steampunk, and despite the unexpected — ah, species?– of the main characters, the emotional punch is intense.

It’s Latchkey’s Lament by Troy Nixey (who directed the really cool Don’t Be Afraid of the Dark — if you haven’t seen it, check it out)

(It’s in two parts):

So here’s where I’ll blog about the techno do-dads (both hardware and software) that I find either particularly useful or particularly annoying.

Today I’m blogging about one that is, in my opinion, right up there on the awesomeness scale: Evernote

What? You haven’t heard of Evernote? Tsk-tsk! Check it out, and I think you’ll see how handy it can be. Basically, Evernote is an online, easily searchable database for pretty much whatever you want to put in it.

I use it to organize information about my various books, a family scrapbook, notes regarding ePublishing, business cards of folks I’ve met, homeschooling info, story ideas, documents I exchange with my critique partners, classes I’m taking, recipes, info about my youngest daughter’s cleft palate treatment, travel info (hotel reservation), and so much more.

So how does it work?

Basically, you feed info into Evernote…and there it is for you. It’s like dumping all your stuff into a big box. But instead of having the stuff be lost forever, you can get your fingers on it easily by searching for a particular word, by a tag, by how you organized it into the notebook, by the location where you were when you uploaded the document, and more.

And it’s not just standard text that’s searchable. For information that’s in there as text or as an image or PDF, the information is searchable.

So, for example, if I write a note that says “Call Mom” and take a pic of it with my iPhone and dump it into Evernote, then once it syncs, I can do a search for “Mom” and the note will appear. So will all the PDFs or other documents with the word Mom.

(Caveat-there is both a free and a premium service. I have the premium service which allows for an insane amount of uploads each month—1GB! I’ve been uploading high quality jpgs of my backpacking through Europe trip—and I’ve barely made a dent in the monthly upload allowance. The text recognition is faster for premium, too, and you get offline notebooks (which is something I use regularly). Premium is only $45/year, and I think it’s worth it. By the way, I have no affiliation with Evernote, other than as a huge fan. Of course, if someone at Evernote wants to hire me….

Here’s a link to the Premium benefits.

What File Types Can Go Into Evernote?

That’s easy. Pretty much anything.

Clip a webpage (the entire thing, or just certain text). Evernote has a handy “clipper” icon to install on your computer. Zing! You’ve got the page. If you’re like me, you tend to clip and go, then come back later and organize a few days worth of input. If you’re better organized, you add tags and put it into a notebook right then (more on those later).

Send your photos straight into Evernote. I do this with a lot of photos. I created a Notebook called DIARY. I use an iPhone App called FastEver Snap. Every photo I take using FastEverSnap goes to that Notebook (I could change it, but I rarely do). That way, if I take a cute pic of my kids, I know where to find it.

Add a voice note. Say you’re driving and come up with a brilliant solution to the plot problem you’ve been having? Or regarding the expansion of the universe? Or the magic words to make that cute guy fall madly in love with you. Just send an audio note to Evernote. But you’re in the car, and you forgot to title or tag it, and EN doesn’t search words. How will you find it? You recall that you were in Dallas at the time. Do a search by location! (Cool, huh?) (There are also apps that will translate your EN voice notes and send a text; I haven’t used any of those.)

Scan your documents into EN and strive for a paperless office. I recently bought a Fujitsu ScanSnap S1300 and don’t know how I lived without it (though any scanner will work, the SnapScan easily integrates with Evernote and has settings so that with one click you’re scanning simplex or duplex, color or B&W, low res or super high res.)

Send handwritten electronic notes using a program such as EverPaint for your iPhone or iPad

Send a PDF (and know that it’s searchable! And you can open the PDF on your iPad using iAnnotate and make notes on it. IAnnotate isn’t an Evernote application, but I use it all the time with PDFs that I store in EN).

Use the personal email address you have to forward key emails to EN — just to be sure. Also, I have filters set up on my email so that certain emails (monthly passwords for a few message boards, things like the monthly newsletters for organizations) skip my email inbox and go straight to EN. They go into a notebook I’ve named “Inbox” (I wish there were a way to automate forwarding to a notebook; so far, I don’t believe there is. However, for single emails you can use @notebook or #tag and the note will show up where you want it (the Notebook and/or tag need to already exist).

Obviously these suggestions cover a whole range of sub-types that I’ll talk about below, but those are the basic kinds of documents.

Suggestions for Using Evernote

I touched on this a bit earlier. Here are some more specific thoughts:

Recipes - Create a “Recipes” Notebook and then clip from the web, scan your cards, type in your recipes. However you acquire it, EN can store it.

Task lists – Evernote has a checkbox, and if you search for your to-dos, those items will come up. I don’t use EN as a task list, though, because I find it a bit unwieldy, and the check boxes don’t show up on all devices. I do use the check boxes to let me know if, for example, I’ve sent a critique of a project to someone, if I’ve read a lesson in one of my online classes, or if it’s something I see on a webpage that I want to do “sometime”. (So what do I use for task lists? I’ve abandoned just about everything — blog post coming — and now use the “Notes” feature on the Mac products. And the “reminders” that are available w/ the new iphone OS.)

If you’re a writer, a “Story Ideas” file is great.

Story Bibles (so easy to include character images, notes, etc.) (Scrivener is also great for this…that’s another coming blog post, too).

Organize your upcoming Blog posts (I put ideas in EN, but write in Scrivener.)

Teachers can organize lesson plans

Wedding planning

Home Decorating (Pinterest is also cool for that kind of stuff)

Home Repair/Maintenance info (we have our AC filter info in EN, and similar information for stuff around the house, like the annoying little numbers on those funny flat batteries, dates we’re supposed to drain the water heater, when to check the carbon monoxide detectors, and stuff like that).

Collaboration (you can Share notebooks; I share the one with household info with my husband).

Travel planning

Conference Planning and Notes – put all the deets for a conference (reservation, receipts, confirmations, notes from panels, business cards of folks you meet) in a notebook. You’ll always be able to find folks!

Scrapbook

Your kids schoolwork … or your schoolwork, including syllabus and class notes

Books you want to read

Inspirational quotes

Fitness programs

Taxes…save your tax-related documents throughout the year and avoid having to plow through cardboard boxes

Gift lists — best friend mention something she loves? Write it down so that you’ve got a great idea for a gift down the road.

Share a notebook with the world. Yup, you can make one of your notebooks public and let friends and family and the blogosphere see what you think about cool stuff!

The list is, literally, endless. Great ideas at blog.evernote.com and at Ron’s Evernote Tips. Also, if you google Evernote and whatever you want to do (“Evernote lesson plans” or “Evernote gardening” I bet you’ll get some great ideas and tips!)

Getting Info Into Evernote

There are several ways.

Webclipper – A little elephant that lives on your computer. Click him and you have the choice (depending on the browser) to clip an entire webpage or just an article.

Screenshot — on a Mac, you use Control-Command-C and that opens a grid so you can identify the image you want. You can also use the webclipper

Email – to your personal Evernote email address

Scan – pretty self explanatory. Most scan programs can be set up to ScanTo something. Just pick Evernote as your application

Twitter – After you connect, you can simply add @myEN and your tweets will go to your EN account. (I don’t use this that often; generally I want to save a webpage, not a tweet. But it’s a nice option to have!)

Various phone apps such as FastEver Snap, mentioned above.

Drag and drop – take a doc on your computer and drag it to the application icon for EN. Works great!

Do I Need Software?

No, but I recommend it. You can do Evernote completely “in the cloud.” But I find the interface not nearly as nice as on my computers. I have EN on my iPhone, iPad, iMac and MacBook Air (can you tell we’re a mac family?). The nice thing is that they all sync!

**Tip: if you use EN for your phone or iPad, open the app and let it sync frequently. I’ve run into the issue where I’m cooking and using EN on my phone as my recipe book, and I have to wait for the sync to finish.

Thoughts on Notebooks and Tags

Early on I read a blog post wherein the writer said to use a minimum number of notebooks and lots and lots of tags. I did…and I hated it. So now, I have notebooks of whatever I would have had a file for in a filing cabinet. (Originally, your document could only be in one notebook, and in those circumstances, few notebooks and multiple tags made sense. Now, however, a document can be copied. So if you want to have it in multiple notebooks, you can. Personally, I like organizing that way!)

But I still use lots and lots of tags. At a minimum, I tag what it is (even if that’s the notebook). I tag who and/or where I got it. So, if it’s a recipe for Paleo banana pudding, my notebook would be Recipes, and my tags would be: Paleo, primal, recipe, banana, pudding, dessert. If I got the recipe from my friend Joe when were talking over dinner at Rudy’s BBQ, I’d also add: Joe, Rudy’s, BBQ simply because that may be the way I remember, three years from now: that I got a recipe from Joe that I wanted to try.

My Favorite Evernote Apps

FastEver (there is also a version for the iPad).

FastEver Snap

EverPaint

Check out the Evernote Trunk for all sorts of apps. (I have a bunch on my phone; those are the ones I use daily)

Whew!

That’s enough for a beginning! I’ll probably use another Thursday for additional cool Evernote goodies I think of!

Do you use Evernote? Share how!

Got questions? I’ll try to answer!

What do you think? American Idol here we come?

My Grandma Ebby on a cruise ship. I think this may be during the 1950s

It’s all about embellishing stories and slightly off-center chins (and NASA and astronauts and diapers and stuff). I hope you check it out here!

You can pre-order now from Amazon, Barnes and Noble, or your favorite bookseller!

Check out some of the awesome advance reviews:
Praise for the Thriller anthologies

“A slam-dunk collection of the best in the business.” Steve Berry, New York Times bestselling author

“For romantic suspense lovers, this is magical mayhem loaded with bark and bite. Downright beguiling.” Jeffery Deaver, International #1 bestselling author

“It’s like a box of chocolates–each one is different, but they’re all great.” Joseph Finder, New York Times bestselling author

“An absolute must-buy for thriller readers everywhere.” Lisa Gardner, #1 New York Times bestselling author

“I love this book and you will, too.” Tess Gerritsen, International bestselling author

“Absolutely superb.” Doug Preston, New York Times bestselling author

“Gripping, exciting, engaging–every story will leave you breathless.” Karin Slaughter, #1 Internationally bestselling author

And be sure to check out the full spread (click the image for a bigger version):

And I think it’s awesome! how about y’all?

I'm recycling this post -- I ran across it and it amused me. The Pink Princess is now ten years old. Time doesn't just fly, it careens!

Anyhoo, since my first release in 2000, I’ve seen more than thirty books hit the shelves, and I’ve never been short of ideas. It’s the where of the ideas that’s the big question, and one I’m always afraid to examine too closely, lest I see the man behind the curtain and the fantasy comes to a screeching halt. When people ask me (and I get asked a lot!) I usually tell them I get my ideas at Wal-Mart. Cheaper than Nordstrom’s, anyway. And there’s a little bit of everything to choose from.

And I have written all over the board: Superheroes descended from Greek and Roman gods (that whole mythology thing was just a cover story, don’t you know?), a cat determined to marry her master, a kick-butt female super-spy mixed up in a James Bondish plot, a Nick & Nora-like couple out to solve a mystery. A woman sucked into a real life version of a computer game, with high stakes consequences: play the game… or die. Morally questionable vampires and werewolves struggling to survive in a paranormal world with its own paranormal judicial system. And, of course, a Demon Hunting Soccer Mom.

But ask me where I got an idea, and I really couldn’t say. I can give you a vague answer. In some cases, I can talk about how I was brainstorming with friends, and somehow the book finally appeared. But I can’t really pinpoint that actual spark. Honestly, I’m not sure I want to, again for fear that if I look too closely, the spark will fizzle.

Lately, though… Lately I’ve discovered a wealth of book ideas living right here in my house. My daughter, C, all of age three, and brimming over with such imagination that it puts me in awe, and makes me think that coming up with story ideas for twenty some-odd books was really no big thing at all. I mean, if the kid could type, I think she could fill the Library of Congress! (And, yes, I realize that all kids of fabulous imaginations, but she’s my first and at the time this posted originally, she was my only, so I think I’m entitled to brag and be in awe of the great creative genius that is my child!)

Some of the ideas are so great, there’s gotta be a book in there somewhere. Take chicklit, for example. So many chicklit books have a component in fashion. My daughter, has, apparently, been reading the books on my shelf, because suddenly she won’t wear anything if it’s not “fashion.” (Now, I dress in Old Navy and old t-shirts most of the time—trust me, it looks better than it sounds. So I assure you she’s not getting this from me!). Every morning is a huge ordeal finding clothes to wear to school because they must be “fashion shirts” and “fashion pants.” Unfortunately (for me, anyway), C’s concept of fashion means that it’s pink. ALL pink. Not pink with white flowers or tiny blue lines or a hint of green stitching. PINK. Needless to say, I do a lot of loads of pink laundry.

But that’s gotta be a book, right? Can’t you just see it? FASHION PANTS, by Julie Kenner. A heartwarming and humorous story about a young woman who has this pair of pink pants and she shares them with her friends, and they’re sort of magic because they fit everyone. And the friends travel around and … oh, wait. That’s been done. Hmmm.

Okay, well, how about this: Angry Superheroes. Yes, you heard right. Why does my daughter like to be an angry superhero? I have absolutely no idea. But she makes the squinty face, and clenches the fists, and goes into the stance, and it’s all my husband and I can do not to totally crack up. (My parents just left, and I think I spent half the visit trying to convince C to “do the angry superhero face for grandma and grandpa!” She never did. Creative, maybe, but not an actress.)

We were at Sea World last week, and during the 8 minute breaks between wave sessions, we played Angry Superheroes Rescue The Good Guys about, oh, five million times. They may be angry, but these superheroes are definitely out to save the world.

That, folks, could be a book. And one day, it just may be…

**This post originally appeared on The Mommy Blog in 2005. I did a very light edit and reposted here, because it amused me and, yes, I still get ideas from my kids (and my memories of when they were younger!)