PubCrawl Podcast: Publishing 301 – Permissions & Fair Use

This week Kelly and JJ continue their Publishing 301 series with PERMISSIONS & FAIR USE, or Wherein They Define Copyright and How Not to Violate It. Also Kelly is training for her first 5K and JJ went to Savannah and possibly took a picture of a ghost.

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Show Notes

  • In the United States, copyright exists for a work during the lifetime of the author, plus 70 years. (It’s a little bit more complicated than that, but for this is the most relevant bit of information to aspiring authors. Also, because both Kelly and JJ are US citizens and working from a US-centric view of publishing, their discussion will necessarily be limited to the United States.)
  • Publishers will copyright your work for you, so don’t register copyright for your book preemptively. (Seriously, it’s a huge headache for everyone involved. Please don’t.)
  • When it comes to quoting other works within copyright in your own writing, permissions must be obtained. (Whether the publisher does it or the author does depends on the publishing house.) You do not need to obtain permission to quote works in the public domain.
  • There is a misconception about what constitutes “fair use.” The reason this misconception has come to exist is because most copyright holders won’t bother to prosecute every single instance and use of copyrighted material for which permission was not obtained. However, “fair use” only comes into play when usage of the copyrighted material is transformative.
    • The definition of “transformative” is somewhat nebulous, but essentially, in order to use copyrighted material under fair use, the usage must be making some sort of commentary on the original work. For example, parody must necessarily be commenting on the material its making fun of; adopting the style of a copyrighted work in order to comment on something else is a violation of fair use.
  • Now…plagiarism. The practice of plagiarism is claiming someone else’s work as your own, but it is very hard to prove. Unlike copyrighted material (names, places in a fictional setting, etc.), plagiarism is often passages, and not entire works. It is definitely a violation of ethics, but not necessarily a violation of the law.
    • You cannot copyright an idea. It would be plagiarism and a violation of intellectual property law if two books had the same premise, very similar situations, plots, names, and settings, and significant passages were nearly word-for-word.
    • For example, Wintersong is considered a retelling of Labyrinth, but it is not copyright infringement because JJ is not using the characters (or even story) created by Jim Henson: Jareth, Sarah, Hoggle, Ludo, Sir Didymus, et al.

Books Discussed/What We’re Reading

What We’re Working On

  • Kelly signed up for her first 5K and is training for it!
  • JJ went to Savannah for the Southern Independent Booksellers Association (SIBA) and also went on a ghost tour. She’s also too afraid to edit her photos because she might have captured…something.

Off Menu Recommendations

What You’re Asking

Hi ladies,
I love the podcast! You asked for questions to fill the final section so here’s one (some): What do you think of indie publishing? Are Indie’s “real authors?” Are they onto something? Would you ever consider self-publishing? How is the Indie world impacting traditional publishing?
—Liz Greene

Indie authors are absolutely “real authors.” If you’ve written a book and have published—whether traditionally or by yourself—you are absolutely a “real author.” Now, is indie publishing changing the landscape of traditional publishing? Well, that would depend on what part of publishing you’re looking at. In kid lit, the answer is no. In children’s fiction print reigns, and it reigns for a multitude of reasons. First, you still have parents buying for children because children don’t often have e-readers or other devices. Second, teenagers mostly buy a physical book because they love the object: it’s a keepsake they can have (often with the author’s signature), or it is something to be passed around and shared. The people buying ebook versions of YA titles are adults, not teens themselves.

However, if we are to talk about other areas of publishing, particularly adult romance, then yes, self-publishing has absolutely influenced traditional publishing in a myriad of ways, most noticeably in the category of New Adult. Indie publishing as a romance author has the most potential for sustainability, although you do get occasional runaway successes in other genres. Moreover, if you are a traditionally published author with an established fanbase, then you can add to or even sever yourself from traditional publishing because you now have the resources and the readers to sustain you, which would not have been possible before the advent of ebooks.

Would we self-publish? Absolutely, especially if we were writing romance or short stories.

I love these podcasts, especially the recaps, they’re really important because I love reading them at work when I can’t listen. Do you think you guys could do one on author newsletters? When to start them and what services you use etc?

JJ has a newsletter (if y’all want to check it out) and loves doing it! In her opinion, the newsletter has, in many ways, replaced the personal blog. As to when to start one, it doesn’t actually matter. Start one as early as you like! Having a newsletter is really useful as an author because subscribers have taken the extra effort to sign up. These are people who are genuinely interested in what you are doing. However, if you don’t want to have a newsletter, then it’s not necessary. As with any other promotion or social media, only do it if it is something you want to do.

We are paraphrasing this next question as it has some personal information but the basic gist comes down to:

  1. How does one educate themselves about film rights?
  2. How does one go about getting an agent when you already have a book under contract?

About film rights, neither Kelly nor JJ have much experience, but essentially when film rights get exploited, the first thing a production company will generally do is option your work, which means they’re essentially calling dibs on the property for a set length of time while they decide whether or not to go ahead with actually making a movie of your book. Once the option period is over, the studio can let the option lapse, renew the option, or actually purchase the rights, in which case they will proceed with making a movie.

As for the second question…it would depend at which stage of the contract you’re currently in. If you’ve already negotiated and signed the contract, then it’s unlikely an agent will represent you for the work under contract as there is nothing more they can do for you. (To be purely mercenary, they get no financial gain from representing you, as they will be receiving no commission on a book that’s already been sold.) If the contract has not been finalized, then you may be able to go out and find an agent willing to take you on. If you’ve already signed a contract, then it’s best to query agents with a fresh manuscript and explain in your publishing credits that you already have a book coming out with X publisher.

Now…another reason an agent might be hesitant to represent an author with a book deal is because of the publisher. Check out this YA subreddit discussion about small presses for more information and stories. But another reason might be because a small press may not have the same reach into the print market or library market as a larger publisher, and because print makes more money than digital, that may also be a deal breaker for an agent.

How do you break into careers in copyediting/copywriting/publishing/etc.?

JJ wrote a few posts about breaking into the publishing industry here and here, as well as PubCrawl alum Alex Bracken here. As far as copywriting goes, there is more leeway if you broaden your search beyond publishing itself into technical writing, websites, and PR. Good luck!

What You’re Saying

The best publishing podcast around
★★★★★ writingstudent
Pubcrawl is a great source for learning about the publishing industry. The hosts explain things like contracts and subrights in a clear and entertaining manner. I’d recommend it to anyone aspiring to a career in the publishing industry or with a wish to write for it.

Thank you so much! We understand this industry is opaque and someone esoteric, so we try to explain it as best we can.

That’s all for this week! Next we will do another Publishing 301 episode, this time covering WARRANTIES & INDEMNITIES. As always, leave us a comment if you have any questions!

3 Responses to PubCrawl Podcast: Publishing 301 – Permissions & Fair Use

  1. Cyn Vannoy Sep 30 2016 at 5:40 pm #

    I am disappointed that everyone seems to skirt around the issue of film rights. (By “everyone” I mean any blog or newsletter I’ve found on the subject, not this podcast!)
    Is there nothing definable on the subject? Anything we, as authors, can do about preserving our rights to movie options BEFORE signing a contract for printed material?
    I’ve been worried about this since Anne Rice had to stand, hands legally bound, and watch Tom Cruise define a beloved character. Sure, he did well, and she came to love it, but what if the whole thing had been more of a wreck than the following Queen of the Damned movie? There was NOTHING Rice could do!
    Now, I don’t know how things were worked out between Martin and HBO. Does anyone know of any sources to that?
    Does anyone have any kind of resources pertaining to basic authorship rights on film options?
    Call me old-fashioned, but I’d much rather know my possibilities BEFORE being faced with a contract. Thanks for any suggestions or sources!

    • The PubCrawl Crew
      The PubCrawl Crew Sep 30 2016 at 7:09 pm #

      Hi Cyn:

      The honest truth is, Hollywood is an entirely different industry. When you sign a contract with a production company, you are essentially relinquishing creative control to the studio. That is the blunt, direct truth: an author does not have creative control over a film adaptation of their work. You can preserve your right to the material by not signing a contract. Period. Very, very, very few authors have enough clout and leverage to negotiate better terms, but unless you are J.K. Rowling or Stephanie Meyer (a runaway success), George R. R. Martin or Suzanne Collins (both of whom wrote for Hollywood before writing novels and therefore probably maintained the contacts), or Stephen Chbosky (who produced, wrote, and directed an adaptation of his work because a studio was willing to take that chance on him—but he also works in Hollywood), then the likelihood of you being able to exert any control during the contract negotiation is nil. :-/

      A lot of authors swear they don’t want film adaptations of their work for this reason. It’s either sign the contract, or retain complete creative control. To be honest, adaptations are the creative and intellectual property of the studio and they are going to put their own stamp on it. It’s a bit like an author retelling a fairy tale: taking the bones of something and making it their own. Your work is the source material, but the film is the creative product and does not belong to you. Your involvement in the project is really up to the discretion of the person who purchased the rights.

      Sorry to be such a Debbie Downer, but I hope this answers your question directly.


  2. Emily Oct 21 2016 at 10:15 am #

    Hi Kelly and JJ!

    I’m getting ready for NaNoWriMo by outlining and working through details of my story. It’s a retelling of “Much Ado About Nothing” set at Comic Con. I have created several ‘fandoms’ of my own that my story will revolve around but I’m wondering how I go about mentioning other fandoms that really exist. Am I over stepping the fair use bounds if I just casually mention fandoms like Harry Potter, Doctor Who, Firefly, and yes, even Hamilton? Do I just need to create parodies of them or should I keep creating my own to make my setting work?

    I would love and deeply appreciate your insight.

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