Editing Software: Lessons From My NaNoWriMo Fever Over Online Grammar Tools

It’s time for NaNoWriMo again this year: National Novel Writing Month began a minute after midnight on Saturday night. Day 2, and I’m right on track. You betcha. If I write 1700 words each day, seven days a week for the entire month of November, I’ll meet my 50,000 word count deadline, no problem-o.

It’s fun. It’s crazy. It’s overwhelming and exciting and I highly recommend you try it if you haven’t done so before.

Word of warning. There are lots and lots of promotions that go with NaNoWriMo. Some are great: for instance, Scrivener (the writing software) can be had for a bargain this month. Then there are all those not so great deals.

I can’t tell you, Dear Reader, how many invitations have arrived in my Inbox tied to NaNoWriMo, tempting me to buy books or to purchase software aimed at writers. Oh, so enticing: “Write a Novel in a Day!” “Buy Software that Will Proofread and Finalize Your Draft in 30 Seconds!”

Even better, the package deals. That’s where they really get ya. (Writer’s Digest had a particularly interesting collection.)

Okay. Fine. Truth be told, I bought some stuff. I had the fever! I wanted to be PREPARED! I had to be RTW - Ready To Write!

I kinda went nuts on editing software. Now, before I start delving into this stuff, please know I already had editing software on my machine. Stuff I use regularly; in fact, I have used editing tools for years. YEARS. Long ago, I relied on Microsoft Word’s Spelling and Grammar tools, and I had been known to use SmartEdit occasionally as well. I think I’ve been using Natural Reader, a text to speech program, for almost a decade now (I like the voice of “Anna”).

So before this frenzy began I was already happily using Hemingway together with Natural Reader (text to speech) on my Scrivener content.

But I’m only human and that NaNoWriMo time ticker was ticking -- and I had already bought my cool new mouse pad (isn’t it GREAT?). So, over the weekend I installed After the Deadline (AFD) because it seems to work well with WordPress blogs. Grammarly is lurking on my computer somewhere, too, because I received my first weekly report card from them today. (I made an A. I’m so proud.)

All of this after checking out Ginger and several others; asking the Scrivener Community on Google Plus their preferences; and reestablishing my friendship with Microsoft Word’s Spelling and Grammar tools (after pretty much dumping Word for Scrivener).

Today I bought the premium version of ProWritingAid. It’s got a 14 day trial period, so we’ll see. 

Bottom line, I went a little nuts with editing software on the eve of NaNoWriMo. I read a couple of books on writing, too. Not that I’ve changed from being a pantser, but I like to think about outlining. 

Things to Consider When Deciding on Editing Software 

Do I need all these editing tools? No. Of course not. I have learned some lessons from trying them out, though. Here’s a couple of things about all this editing software, from me to you, Dear Reader. 

1. Editing is different for fiction and nonfiction. Most editing software targets the fiction writer. 

Hemingway, of course, targets fiction. There’s no non-fiction option with Hemingway. ProWritingAid (Premium version) offers the options of “business,” “technical,” etc., albeit nothing more specific — you won’t find “legal” or “medical” there. If there are editing packages targeting those niches, I didn’t find them.

2. Most of these options are web-based. You cannot download the software, you have to insert your content into their website and hit the button. 

I don’t like it. I want the software on my machine (one of the reasons I like Hemingway). Sure, downloading any program is scary because of the threat of malware, but a quick scan of the file by your anti-virus before installation should protect your machine.

I’ve got two reasons that I prefer to have the software on my machine.

First, I can use it without accessing the web. I don’t like being forced to go online to edit some content. Second, I don’t like having to paste my content into a window on a webpage and crossing my fingers that they’re being honest about not keeping my stuff and not sharing it.

3. Most of these editing tools do not differentiate between grammar, style, and usage. These are three different things, people. 

When your edit appears in the software, don’t be surprised to see a rainbow of colors staring back at you. These are not all grammar errors. You didn’t forget how to write. You write well. Look carefully — if you’re like me, what you’ll find are issues of style and usage, not grammar. This can be very, very frustrating.

For more on this, read Michael McDonagh’s post “Grammar, Style, and Usage are Three Different Things.“ 

4. These editors apparently find some of my favorite writers are in desperate need of help, as well. 

I love how Peggy Noonan writes. Politics or religion aside, check out her alliteration. Sigh. If you paste one of Noonan’s columns into Hemingway or ProWritingAid, you’ll get a rainbow reaction.

Ditto for Sharyl Attkisson. Or the Miami Herald’s Dave Barry (oh, how I love how Dave Barry writes).

Apparently, all the writers I love tend to use long sentences. They will scatter the passive voice into their stuff. Occasionally, they will use (wait for it) an adverb!

Sometimes, the grade level of the reader is estimated to be at a high school level, but they may get to grade level 12 or 15 on occasion (and I’m looking at you, Sharyl Attkisson).

5. Take these editors with a grain, Dear Reader.  These are tools.  Not professional proofreaders. Don't take these edits as commentary on the quality of your writing. 

I suggest that you take some content of your favorite writers and use it to test the editing software you are contemplating using.

For one thing, you’ll get a good laugh or two. For another, you may find as I did, that you may not write exactly like your writing role models, but it’s encouraging to find that in the Editing Software World, you are making their same errors.

Makes you feel like you’re in the same club or something.

And it helps you remember that these editing software gizmos are tools. Just tools.

Spelling and Oxford Commas are one thing. Style is another. Usage, too. Shake your head and move on.
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Fair Use and Copyright Infringement: The 2015 Dancing Baby Case and You, Dear Reader

There’s been lots of discussion about a recent Fair Use case that has come down from the United States Court of Appeals for the Ninth Circuit, Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sept. 14, 2015).  Forbes, for example, lets its readers know that from this new court opinion, “[i]f a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages.”
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Here’s what you need to know, Dear Reader, regarding “fair use” and “copyright infringement” now that the Dancing Baby Case opinion has been published.

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The Dancing Baby YouTube Video: Mommy Files a Lawsuit

Maybe you’ve heard of the "Dancing Baby Case."  Long ago, on February 7, 2007, Stephanie Lenz  sat down at her computer.  She went to the YouTube website and uploaded a 29-second personal video she had made of her two little kids dancing in the kitchen to Prince’s song, “Let’s Go Crazy.”  She shared the video on YouTube with anyone that wanted to see it.  

She named the video of her babies dancing in the kitchen, “Let’s Go Crazy.” In the video, early on, she asks her toddler son “what do think of the music?” and he responds by bouncing up and down.  

Meanwhile, over at Universal, a man named Sean Johnson had the full-time job of monitoring videos that were uploaded to YouTube for copyright infringement of Universal’s artists.  Among Universal’s artists was Prince, and it was Universal’s job to enforce and protect Prince’s song copyrights.

Sean Johnson was Universal’s man on the scene; employed an assistant in their legal department who every day went to the YouTube website to search for uploads of Prince’s music.  If that search came back with search results for a Prince song, then he would watch the video on YouTube.  

He made the initial call on whether or not the video "embodied a Prince composition" by making “significant use of . . . the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the  video."  If he found something objectionable, he would share it with others at Universal.  Universal would then notify YouTube that the video should be taken down as a copyright violation if Universal believed the “composition was the focus.”

In the Universal review process, Stephanie Lenz’s home video of her kids dancing in the kitchen to a Prince song was considered to meet their criteria. YouTube was notified by Universal to take the Dancing Baby Video down.  YouTube did.

Result?  Mommy Stephanie Lenz filed suit under the Digital Millennium Copyright Act ("DMCA") section 17 U.S.C. § 512(f), arguing that Universal misrepresented in its takedown notification that her 29-second video was an infringing use of Prince’s work. 

What the Lenz case holds:

“Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. We affirm the denial of the parties' cross-motions for summary judgment.”

The Dancing Baby Case and You, Dear Reader

It’s an important case for you, Dear Reader, no matter which side of the copyright you’re on:   whether you are a writer, photographer, or designer trying to protect your copyright, or you are a blogger or ebook author who wants to use an excerpt or image that may be protected by copyright law.  

Here are some things for you to know:

Lenz Is Not the End of the Road on Fair Use

1.  This is a recent federal appeals court decision in a fight that lasted 7 years.  It’s a big deal.  

The only higher court than a federal appeals court is the United States Supreme Court.  Whether or not this case will be appealed to the High Court is one question (actually, a petition for writ would be filed).  

First, they may request a full  hearing of all the justices in the Ninth Circuit in what’s called a “motion for rehearing en banc.”  If the motion is filed and it’s granted, the whole case gets reconsidered by all the justices on the Ninth Circuit, not just the ones that were assigned to hear the case and who issued this opinion.  

Even if the losing party in this case wants SCOTUS to review the Ninth Circuit decision, and can do so after the rehearing motion, odds are not in their favor.  First, SCOTUS only agrees to hear a handful of cases that request review.  Second, a review is no guarantee that things would go their way; they could lose again.  

My point:  this opinion isn't quite jelled yet, it could change.  Lawyers know that the odds aren't high that a rehearing is going to change things (if it were granted), so many read the current opinion as speaking for the Ninth Circuit.  And the odds are even more remote that SCOTUS is going to change things, and even if it did, this opinion will be good law in the Ninth Circuit until it does.  

So, Lenz is probably going to become finalized law ... unless it's not after additional review.  There is a remote chance that this fight isn't over.  

2.  This is a decision out of the Ninth Circuit.  There are several regions, or circuits, in the United States.  Texas, for instance, sits in the Fifth Circuit.  

Each federal court of appeals in each federal circuit has the independent authority of reviewing cases that come before it within its jurisdiction.  These independent reviews may or may not agree, or jive.  In fact, controversies and opposite rulings in different federal circuits are often the reason that SCOTUS does grant writ and take review: to make the final call when two or more circuits don’t agree on the answer to a legal question or issue.

My point:  Lenz may or may not be final law for the Ninth Circuit (yet).  Once it’s final, it may be considered as a respected federal court decision by everyone in this country.  But it’s not the end of the road on this issue.  If a similar case were to be heard before the Fifth Circuit, for instance, would that court answer in the same way?  We don’t know.   It’s possible for a similar case to be heard in another circuit (YOUR circuit) and that circuit rule opposite from the Ninth Circuit in Lenz.  

Lenz Doesn’t Answer Every Question on Fair Use

3.  Another point.  Lenz is not a case with clear cut answers for everyone.  Within Lenz, issues are left unclear and not every question is answered.  Lots of lawyers are chatting with each other about what all Lenz will mean in future copyright infringement cases.  For instance:

• Is “fair use” a particular type of affirmative defense or is it not an affirmative defense at all?
• What exactly does this mean for those companies that sent out those robotic, automated takedown requests in bulk? 
• If someone wants to send a takedown notice, then they have to consider fair use — but Lenz explains the “…copyright holder’s consideration of fair use need not be searching or intensive.”  So, how does a copyright holder establish in evidence that they considered fair use before they send their notice?  Is simply saying “I considered the fair use doctrine in this situation and determined it didn’t apply” going to be enough? 

4.  What we do know from Lenz (this isn’t an exhaustive list):

• If you are going to send someone a takedown request under Section 512(c), then you have to consider Fair Use;
• Deciding if something is a knowing misrepresentation is done by a subjective (not objective) standard;
• No damages are available for “impairment of … speech rights” but nominal damages are available to plaintiffs suing under Section 512.

The Dancing Baby Case and You

What does this mean to you, Dear Reader?  

Well, we have a federal appeals court decision on the books now that helps people who want to argue they have a fair use right to use someone else’s work without it being copyright infringement.  It should make humans check the work of their robots before they automatically demand a takedown. 

Given the current state of web publication (including social media), there’s a lot of grabbing of content and images (ESPECIALLY IMAGES) and this case helps those people.  The people using the stuff.  Arguably.  

But Lenz is muddy water.  So, while the Dancing Baby Case is getting lots of attention (and kudos to the Electronic Frontier Foundation (EFF) for all their hard work here), this case isn’t something that provides an easy guide to the people out there who own copyrights or those who want to use stuff they find on the web that is copyrighted.  

The reality remains that there’s a lot of copyright infringement going on right now, and at the same time, there’s a lot of bullying of nice and decent people who have a fair use right to use an image or other work.  There are good guys and bad guys on both sides of the issue:  using stuff fairly and infringing on copyrights wrongfully.  

And Universal was challenged for not considering "fair use" before sending YouTube that takedown notice.  But if Universal had stated, "we considered fair use and found it lacking here," then would they have met Lenz's standard?  

Will Lenz really work to block bullies from blocking fair use through manipulation of DCMA takedown notices?  

Bottom line:  You need to ask a lawyer if you have a question in your particular circumstance.  Copyright infringement and fair use remain complicated legal issues, and Lenz does NOT make things clear.   

For more, read:

Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns at Techdirt.

Lonely at the Keyboard in 2015: Updated List of Online Writer Chats and Forums

In November 2007, I wrote a short blog post entitled, "Lonely at the Keyboard: Online Writer Chats and Forums," with a list of places on the web offering communication and camaraderie for writers (hopefully).   It's remained among my Top 5 Most Read Posts every week for years now.
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8 Years in the Top 5 Posts: What's That Mean? 

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Writing is work, and it's a lonely job.  We know it, you and me.  Still, the fact that this Lonely at the Keyboard post is  coming up on its 8th year anniversary and it's held in the Top Five is telling me something, I'm thinking.

Actually, it sorta worries me.  Makes me sad.
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So, Dear Reader and Lonely Writer, hello.  Yoo Hoo!!!  Hey There! 

First thing I'm doing is I'm updating that link list with links that work (lots of those listed in the 2007 post have not survived).

Ye Gads, I hit on the first link and it was all Japanese (I think).  Wo Nellie.

And, I'm changing the tone of my blog here -- I'm going to try and post more often, to share more personal stuff and fun things rather than my standard fare.

I kept thinking that I needed to maintain some kind of professional tone here, since its "lawyer - writer" and I share legal stuff but what the heck.  I'm in need of a change.

And Geez Louise.

You're not alone out there, Lonely Reader aka Lonely Writer.  There are lots of us typing at keyboards, drinking coffee, thinking about tacos for lunch.

2015 List of Online Writer Chats and Forums for Those Lonely at the Keyboard

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Here's a few forums that I checked out for you.  Now, these are online forums -- if you want to go spend time on Facebook or Google Plus, have at it.  Personally, I like some of the communities on G+ ... the Evernote folk are really nice and helpful, for instance.  I don't do Facebook.

Writer's Digest Forums

Lots of stuff here - and the biggie, the posts seem to be current in lots of the categories, which means it's active in various areas.

Reddit -- Writing

This is really active but make sure and check out the guidelines first.  (Right there, in the sidebar.)

NaNoWriMo -- National Novel Writing Month Forums

Since November is National Novel Writing Month, the traffic is lots heavier here in October and November than the rest of the year, but there's lots of good stuff for you no matter what month you're visiting.

Great stuff from NaNoWriMo even if you're not committed to writing a novel in 30 days?  Sure.  I'm grateful to NaNoWriMo for introducing me to Scrivener, the writing software program,  It's changed my life.  (And it usually goes on sale in November, too -- hint, hint).

Absolute Write Forums

This is another active bunch, which I think is key: who wants to leave a message on a forum that just sits there in LimboLand?  There's lots of interesting stuff here, too -- when I checked it this morning, there was chat going on about Doctor Who.  Not your usual grammar / plot / character stuff of other writing convos.  Fun.  IS Doctor Who a hybrid?!

WritingForums.Org

Unlike the Absolute Write forums, this one is targeting things like setting, character development, writing prompts, etc.  Good place to talk writing with writers -- especially creative writing.

WritingForums.Com

I've included this forum site on the list because it's got a wide umbrella - poets and screenwriters may like it here, there's current chat in the Poetry discussions for instance.  AND they've got a Procrastination section.  Which I may be visiting quite often this afternoon, after I go get my tacos and finish my crossword.

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Now, this isn't a huge list and it's far from a complete list of writer online hangouts.  But it's something to get you started.

Unless you think tacos are a good idea.  Because I do.

I think I'm gonna ask the dog if he wants to "go car," just to see him go nutzo and then we'll go get a couple of tacos at Las Palapas.

And maybe I'll run by the library and pick up the book they have on hold for me (Women Crime Writers of the 40s).

And maybe we'll go for a short walk in Brackenridge Park, too (before the tacos).

THIS is why I am up until three o'clock in the mornings sometimes, trying to make that word count. I expect ....

A Taco Norteno from Las Palapas.  It is good to live in San Antonio.

Have a great day, Dear Reader -- I hope these links help you!

Book Covers: Design Your Own Book Cover at Canva.com

THIS POST UPDATED MAY 17, 2017 TO SHOW NEW CANVA BOOK COVER 

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It's important to have a professional book cover.  Everyone says so, right?

Personally, I know when I surf through books on Amazon.com as well as my daily e-mail message from BookBub, those covers matter.

Sure, we're not supposed to judge a book by its cover, but heck.  I DO.  I admit it.

My books all have professionally designed covers ... except for the one that I wrote with Terry Lenamon.

I hate that cover.  I created that cover.  I want to change that cover.

And now, maybe I can because Canva is coming to help me!!

Here are two examples of the FREE book cover designs offered at Canva.com -- there's lots more, and prices for those that aren't free start at $1.00.

Canva's Book Cover Templates

At Canva.com, there is a new offering:  book covers.  Check them out here.  Oh, it's great stuff.

Not only do they have designs that you can use, or that you can change as you like, they also have the basic skeleton to use if you want to upload your own images, use your own fonts, etc.

Some are free.  Others cost you a buck.

Yes, you read that right: one buck.  Uno. 

It's sweet.  And it looks like lotsa fun.  (They have tutorials, too.) 

I'm going to be playing around with Canva's book cover options over the weekend.  Thought I'd share -- and hopefully, I'll have a better cover for the Death Penalty book too!


Gotta love (LOVE) Canva.com....

MAY 2017 UPDATE: MY CANVA BOOK COVERS 

Someone asked me about this post and I realized that I didn't share my new cover for the Death Penalty book I created using Canva.com.  So, I'm doing that now.

The first one (no pix in background) is the one I uploaded to Amazon for the Kindle E-Book.

The second one (death chamber pix in background) is the alternative cover I created using Canva.  I liked it, but it seemed too busy for a thumbnail.

Am I Rude? My 10-2-4 Rule for EMail and Voice Mail

Great Infographic on Importance of Using Images in Your Blog

InfographicHere's a great infographic from MDG that gives oodles of information regarding the importance of visual information (images) in blogs and web sites (hat tip to Michael Hyatt for his link to the MDG website this week).

Google Plus Promoted as Tool in Debut of Google News Lab - Another Hint that G+ Isn't Dying

Google has announced the Google News Lab, which is described as Google's collaboration "...with journalists and entrepreneurs to help build the future of media."

For details about what all this involves, read the Google News Release re Google News Lab for details, or check out today's coverage in TechCrunch or Engadget.  

Google News Lab:  The Google - Journalism Hookup

For many folk, I suppose the idea of Google "collaborating" with the media is one very skeery proposition.  It's not that it doesn't give me pause, too. Consider that second option in the definition of "collaborating" as defined by Google:

1) work jointly on an activity, especially to produce or create something. "he collaborated with a distinguished painter on the designs" synonyms: co-operate, join forces, team up, band together, work together, participate, combine, ally; More
(2) cooperate traitorously with an enemy. "the indigenous elite who collaborated with the colonizers" synonyms: collude, conspire, fraternize, co-operate, consort, sympathize; informal be in cahoots; "they collaborated with the enemy"

And if you're not aware of how invasive and worrying Google's actions can be, just read the post today over at Vodkapundit about his concerns over a Google notice that Google is eavesdropping via your gadget's microphone.  Eek!!!

However, I'm not focusing on Google being a part of a growing Big Brother society; instead, I wanted to share something I noticed in their promotion of the new Google News Lab to journalists and media publishers all over the world.

They've included Google Plus in their package.

That's right.  Google Plus is one of a handful of tools being promoted in Google's Distribution component of the new Google News Lab (the others being YouTube, GoogleNews, and GooglePlay).

GooglePlus is Part of the Google News Lab: Good News for Google+

Other distribution tools are listed on the Distribute page, but they aren't being promoted in the pretty visual page describing the "powerful" tools that Google offers the media in getting news stories out to readers.

For those that are wondering if and when Google+ is going to be executed by the Powers that Be, here's one more reason to think that Google Plus lives on, at least for now.

Google Plus, Is It Dead or Dying? Google+ Predictions in June 2015

First off, you should know my bias: I like Google Plus and I hate Facebook. So I'm hopeful that Google+ is going to survive and thrive as a social media alternative to Facebook.

I look at Google Plus as an organized, helpful place for professionals and adults. There are several reasons I enjoy Google Plus.
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Why I Like Google+ 

No one site is for everyone, and maybe you like Facebook. Heck, maybe you like LinkedIn. More power to you! To each his own.

However, for me I enjoy Google Plus for a number of reasons:

1. I can count visiting my G+ site (page or profile) without having to worry about anything Kardashian popping up. 
2. Google Plus communities are active with adults who know their stuff. I'm active in the #Evernote community for instance. Ditto the #Scrivener community. I don't know how I would have learned anything after the basics of Scrivener without those folk in the G+ Scrivener community. It's not the most user-friendly software (but it's a must for writers). 
3. It's got lots of pix and images to entertain me while I eat lunch at my desk or I'm bored beyond belief on a conference call. 
4. It's easy to access via my Toolbar and via HootSuite. 
5. [THE REAL REASON I LIKE IT] Posts on Google Plus appear in the search engine results of Google Everything Search. That's right: Google indexes the posts that are published on GooglePlus. 

I'm Worried Google Plus Will Disappear (I Remember Google Reader) 

Long ago, I loved Google Reader. It loved me back, and it was the happiest of RSS Feed relationships.

Then Google killed off Google Reader, just like that (fingers snapping).  No one asked me, and apparently no one asked or cared about tons (TONS) of other Google Reader fans out there.

When Google wants to kill off one of its products, there's no pardon by the Governor.

It hurt then, and the memory hurts now even though I am happy with Feedly, my new RSS Feed helper. The anxiety of what to do when I learned I was going to have to find something to replace Reader was a real stressor, though, and I'd rather not go through that again.

I work for a living. I need dependable tools that work for me because I have research, writing, and clients that bring me angst enough. So, I am worried in the back of my head about G+ and I know lots of other folk are, too.

Will Google Kill Off Google Plus? 

Last month, there was a big conflab where a bunch of Google Powers That Be announced spiffy new offerings from Mountain View and curious by its absence was any mention of Google Plus. Add to this the departure of the Big Kahuna for Google Plus (Vic Gundotra) and the removal of Google Photos from Google Plus, and things looked pretty bad for G+ .


Many are waiting for the other shoe to drop where there is a quiet announcement that Google Plus is no more as of such-and-such date. I'm thinking that this may be true, but I'm not completely sure it will.

Granted, Google Plus never turned into the monster truck that is all things Facebook. Odds are it never will. Doesn't make Google Plus bad, though. It has its fan base of active users.

Plus, there are reasons for Google to keep G+ around. Guru Mark Traphagen wrote a great article explaining all the reasons why G+ is NOT dead and will not be executed in an April 2015 article entitled, "Google Plus Is Small, But Still Not Dead Yet."

Read Traphagen's piece. It will give you comfort. 

And one more thing. For me, one of the keys to Google Plus is not what it brings to me, but what it brings to Google. 

Go check out your GMail account, and down on that left sidebar you can scroll down to see all your Circles there, duplicating email messages within them that are also in your mailboxes (at the top of the sidebar).

Google has integrated its G+  Circles with email so that I can do things like email someone on Google Plus whose real email I don't know (think about that, stalker wannabes). 

 That's just one example of how Google Plus helps Google because G+ helps Google know a heck of a lot more about identities of me and my people as well as connections, interests, etc. And that's all really important stuff for advertising.

 And advertising is how Google makes its money. 

 So as long as I see those Circles in my Google Mail,  I'm going to sleep okay at night and not worry that G+ is sitting on Death Row.

Trademarks and Copyrights for Writers

Most writers know that they have legal rights to their work that are recognized by federal copyright laws.  Writers may not be aware how important trademark protections are for their work.  

This movie poster promoting "Her Husband's Trademark," is no longer protected by
federal copyright laws and is in the public domain. 

Copyright Law Protect Writers

Many writers understand that “copyright” is not a single, solitary right of ownership but instead there are several kinds of rights that can be sold by the writer to publishers in exchange for payment. Traditionally, selling copyrights has been how fiction writers have made their living.

Examples of copyrights include:

1. First Rights -  the publisher is given the right by the writer to be the first one to publish his or her work (article, short story, etc.)  in print media or digital publication.
2. First Electronic Rights -  the publisher is given the right by the writer to be the first one to publish his or her work (article, short story, etc.)  in an electronic publication only. 
3. First Web Rights - electronic rights are not identical to web rights.  An electronic publication is a form of storage that holds the work in electronic form.  Electronic rights may or may not include web rights (aka Internet rights), which is the right to public the work online.   
4. All Rights - every copyright that the writer has to his or her work (article, book, etc.).  Once this is transferred, the writer has no further connection with the work because that’s all been transferred to the buyer of the copyrights.  This is the exact opposite of a writer who writes under a work for hire contract.  In a work for hire situation, the writer is considered an employee of the publisher who is paid a fee for the work that he or she does, and all copyrights to that work product is “work made for hire” and the employee has no copyright ownership of it, that belongs to the employer who hired them to do the work.  Work for Hire means "no rights." 

Trademarks Are Different Than Copyrights

Legally, copyrights can be complicated and if writers aren’t careful, they can get manipulated by publishers into selling more than they intended and making less than they should for the work they have created.  It’s a necessary headache for many writers, this need to understand their legal copyright protections.

Added to that burden is the need to know what trademarks are and when writers may need to have trademark protections as well.  Trademark law exists to protect writers from "trademark infringement" just as copyright law protects them from "copyright infringement."

There’s a big difference between copyrights and trademarks.  Both are protected rights under federal law but they aren’t the same thing.   Moreover, it’s harder to get a trademark than a copyright even though there are situations where the trademark may end up even more vital to the writer than protecting their original copyright.  Trademarks, unlike copyrights, are not automatically created under the law for the protection of the creator / writer.

Warning for the Author and Indie Publisher of a Series of Novels 

This is particularly true of writers who decide to avoid the traditional publishing route, opting to publish their own work independently and acting as their own publishing company.  If a romance novelist, for instance, decides to write a series of Scottish Highlander Paranormal Romances and publish them on Amazon for Kindle, then that novelist and indie publisher may well need to consider trademark protections for their new romance series.

Why?  While the stories in each book within their series will have copyright protection, the following may need trademark protection:

• The Series Title (as a tool being used to market the collection of books);
• The Name of the Protagonist (if the entire series is dependent upon this one name or character); 
• The Name of the Setting (if the entire series is dependent upon this locale); and 
• The Name of the Indie Publishing Company (as a tool being used to market the collection of books).

Trademark Infringement: Consider Fan Fiction 

Federal trademark protection is based in a 1946 federal law known as The Lanham Act (aka the Trademark Act of 1946).  In this cornerstone statute, a trademark in the United States is defined as "… any word, term, name, symbol, or device, or any combination thereof" used in commerce to identify a service or good.

This means that a character’s name; as well as a fictional town where a cozy mystery series is set, for example; or the particular type of alien that appears in a science fiction work,  may be used to “identify” the series and therefore worthy of federal trademark protection.  Legally, there has to be a “distinctive source identifier” between the name, setting, or world-creation that can be shown to connect the readers immediately with the series itself.

This can be a big issue in fan fiction, for instance, where new stories are being written but use of the original work’s characters or setting results in infringement of the author’s trademarks.

The fanfiction writer’s defense?  Fair use doctrine (but this is getting way too complicated for a short blog post).

The bottom line here:  writers who are publishing their stuff  (particularly a series) need to know about trademark infringement and protecting against it just like they need to know about copyrights.  

Google Mobile Compatibilty Penalty Begins April 21 - Test to Make Sure Your Site is Okay for SmartPhones

Mobile-friendly sites will be ranked higher in Google Search Results Beginning April 2015. 

The Google Webmasters have let everyone know that beginning next month, sites that are not easy to read on mobile devices are not going to rank as high as comparable sites that are easy to read with a mobile device or smartphone.

In other words, you are going to be penalized starting April 21, 2015 if your website or blog is not compatible with mobile devices and friendly to searches on small phone screens.   

The deadline to be mobile-friendly is April 21, 2015.

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Check Your Site for Compatibility with Mobile Devices 

There is an online site that allows you to input your site’s url and determine if you need to worry about this or not.

1. Go to Google’s Mobile-Friendly Test and enter a few pages to confirm the compatibility of your site or blog.  
2. Go to your Google Webmaster Account and check your entire site by grabbing a Mobile Usability Report. 

What if You Fail the Google Mobile-Friendly Test? 

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If your site or blog fails the test, don’t panic. The test itself (or your Google Webmaster Report) will explain the steps you need to take in order to have your blog or web site ready to meet Google’s Mobile Friendly requirements by the deadline of April 21st.

You may need to get busy, though.  April 21, 2015 isn't that far away ....

Why Is Google Doing This? 

Google is pushing mobile compatibility because so many of its clientele are searching Google using mobile devices. Google wants to provide the best information to those folk who are using Google and that means pushing those providing content on the web (like you and me and your competitors) to make sure that their stuff is friendly for mobile devices. 

It’s all about delivering the best service to the person choosing Google for a search in lieu of Bing or Yahoo or Ask etc. on their smartphone.  

From the Google Webmaster Central Blog:

When it comes to search on mobile devices, users should get the most relevant and timely results, no matter if the information lives on mobile-friendly web pages or apps. As more people use mobile devices to access the internet, our algorithms have to adapt to these usage patterns. In the past, we’ve made updates to ensure a site is configured properly and viewable on modern devices. We’ve made it easier for users to find mobile-friendly web pages and we’ve introduced App Indexing to surface useful content from apps. ….

Starting April 21, we will be expanding our use of mobile-friendliness as a ranking signal. This change will affect mobile searches in all languages worldwide and will have a significant impact in our search results. Consequently, users will find it easier to get relevant, high quality search results that are optimized for their devices. 

For more information, check out:

• Google’s Guide to Mobile Friendly Sites
• "Mobilegeddon" Is Coming on April 21 - Are You Ready? by Chuck Price at SearchEngineWatch (gives some pros and cons to having a mobile-friendly site as well as discussion of having a separate site for phone searches)

Amazon 1099 for EBooks on Kindle and Books on CreateSpace in 2015

Your Amazon Books and Federal Income Taxes

If you made money publishing books on Amazon.com in 2014, then you're right to expect a form from them to include with your 2014 income tax return that's due in April.  You should be getting an IRS Form 1099-MISC that tallies the amount of revenue you received from publication sales on Amazon.com during the tax year 2014.

However, things are messy this year.  Like you needed more headaches at tax time, right?

3 Things to Know About Your Amazon Book Sales for Your 2014 Income Taxes

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Here's the scoop:

1.  You cannot download your Amazon 1099.

First of all, you cannot go online and grab the 1099-MISC from your Amazon Author Central site.  It's not there (although you can download these things from other sites, like Smashwords).  Your forms are coming to you via the United States Postal Service, mailed to the address you've given to Amazon.  So, if you've moved in the past year or so, check your Amazon account to make sure they have your current address.  

2.  There's more than one Amazon 1099.  

Second, you won't get just one 1099-MISC from Amazon.  Nope.  You'll get one for your ebook sales from Kindle Direct Publishing and you'll get a separate 1099 from CreateSpace.

3.  Amazon is sending out corrected 1099 Forms.

Third, they are being sent late and some are being sent twice because the first round of IRS 1099s had mistakes in them.  Amazon should have sent you an email advising you to disregard the first form and that an amended version was being sent out in mid-February.  

More Information From Amazon

Questions?  Email Amazon at 1099 [at] amazon.com if you have specific issues. There's also lots of information about taxes and your Amazon publications at their Tax Information resource section.

And, remember: this may be a hassle, but the silver lining is that you've made money from your own writing if you're dealing with 1099 issues here -- so congrats!  

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Copyright Infringement and Breach of Contract: the Tess Gerritsen Lesson

Tess Gerritsen has a couple of very interesting blog posts discussing her fight over what's hers regarding the movie Gravity.  (You may recognize Gerritsen more for her work as the author of the Rizzoli and Isles' mystery / thriller series.)

Read Garritsen's posts here - they are worth your time, Dear Reader:

• My GRAVITY lawsuit and How It Affects Every Writer Who Sells to Hollywood; and
• The Difference Between "Breach of Contract" and "Copyright Infringement".

Author's Breach of Contract Case Dismissed

The federal judge dismissed author Tess Gerritsen's case against Warner Brothers last week, but the dismissal is without prejudice to refiling.  Variety has an overview of what's just happened in the California breach of contract case.

I'm expecting Gerritsen to come back again; she's not writing from a position of defeat here.  She's lost a big battle, but she hasn't lost the war.

Contract Claims vs. Copyright Violations for Writers

Gerritsen sold rights to her story in a written contract.  When she believed that the contract had not been honored, she sued for breach of that contract.

The decision (assuming a new filing) will be based upon how the court reads the provisions of that deal as they jive with state law.  Part of her continued fight will be the legal connections between two corporations and what was transferred between them.

The rights themselves are her legal rights to the work she created.  The United States Copyright Office provides a nice summary.  These are protected by federal copyright law.

Here's something that I want to clarify, Dear Reader, after chattering about what was happening to Tess Gerritsen got a bit confusing in a conversation I had with a friend yesterday.

1.  You don't own a single "copyright" to your work.  There are several rights that make up "copyright law" and when those rights are violated, a federal claim for "copyright infringement" can arise.

2.  You can sell one or more of these rights for money.  That's how writers get published, of course.

Here's one thing I want to make clear to my friend and to you, Dear Reader: what exactly you are selling to the buyer needs to be clearly understood by both parties and made clear in your written agreement.  The contract will cover the rights that are described within it.

Here are some examples of copyrights:

• First North American Serial Rights (FNASR)
• First Print Rights
• First Electronic Rights
• Exclusive Rights
• Excerpt Rights

3.  It is possible for someone to take your work and use it after you've made a deal with them (i.e., a written agreement) and be liable to you both for breach of contract (for the rights sold in the agreement) as well as violation of federal copyright laws (for infringing on your rights that were NOT included in the contract).

Much good luck to Tess Gerritsen in her breach of contract fight.  

Pen Names, Pseudonyms, Nom De Plumes, aka DBAs

News this week is that China is forcing its writers to reveal their true identities, despite the fact that writing under a pen name has been a longstanding Chinese tradition. It’s said to be a part of the Chinese government's attempt to control what happens online.

Some may think that outlawing pen names isn’t that big of a deal; they’d be wrong.
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Charlotte Bronte and her sisters published under pen names using the surname Bell; Charlotte's nom de plume  was Currer Bell.  

Pen Names Give You Power   

Pen names are powerful: they allow writers a level of creative freedom that only anonymity provides. Aside from political freedom, there are several reasons that writers choose to publish under a nom de plume.  For instance:

• Pseudonyms can be important for professionals (like lawyers) who may not want clients to know that they write steamy romance novels or Louis L’Amour-type westerns. 
• Also, pen names allow writers established in one field or genre to publish in another area without fear of losing readership. 
• For prolific authors, using pen names frees them from concern that publishing too many books in one year may dilute their market if they were to publish all under a single name. 

There are lots of reasons to use a pseudonym if you are a writer and pen names are widely used by writers today. How widely used? As for how popular pen names are, I leave it to you to surf the web for all the lists of “famous pen names” both past and present - like the 2013 list that Time Magazine provides in its article, “Famous Authors with Secret Pseudonyms.” 

Writing as a Business

Thing is, when you write under a pen name and you publish that work online with hopes of making a buck or two from it, then you’re going into the writing business. At this point, it’s not just romantic to use a pen name, it’s business. 

Which means you might want to consider filing your pseudonym down at the courthouse as a “DBA” (doing business as). Why?

First, filing your pen name as a DBA provides legal notice to the public that you are using another name to do business which may be important to you in the future for various reasons. It proves that the pen name really is you if you ever need to establish that ownership.

Second, it may help to block someone else trying to use that same pen name - if not globally, then possibly within your county or state. It’s a legal argument that isn’t as strong as copyright law but it’s better than going forward and not having this backup.

After all, establishing your DBA isn’t creating a business entity. It’s just providing legal public notice that you are using a fake name to do business.

Setting Up Your Nom de Plume as a DBA 

Getting a DBA set up is pretty cheap and easy. It’s a service provided in Texas by your local county clerk. Just look up the details online (like these set of instructions for Bexar County or Travis County) or give your County Clerk’s Office a call.

One important caveat: if you are serious enough about your writing business to take the time to register a legal notice of your pen name as a DBA in your public county records, and you’re pretty darn sure that you’re going to be making more than pocket change from your sales, then you may want to consider creating a business entity for yourself.  Writers can register copyright under a corporate name just as they can under their personal legal name.

That’s a decision that may need the help of a lawyer licensed in your state — and you may want to run it past your accountant, too.

Pen Name Fun

Finally, here's a couple of fun links for you, Dear Reader, if you are considering a pen name or are just curious about nom de plumes:

Choose your new author alias here using the online Pen Name Generator.
Go here to take the Oxford Dictionary's Pen Names Quiz.

Write About What You Know -- It's Good Advice, Especially for Lawyers Writing Blog Posts

Whether or not Mark Twain advised us to "write what you know" is debatable, but it's considered good advice by many and you've probably heard the quote and considered its lesson.  (I first heard it as advice given to me by poet Naomi Shihab Nye in an early writing class.)

Those who disagree argue that it's exactly what writers shouldn't do -- instead, they should use their imaginations and creativity to write about what they don't know.  They've got a point.  Maybe it is a bit confining for the fiction writer: how could we have Star Trek or Narnia if writers were kept to writing about only the things of which they know?  However, it is particularly wise counsel when the writer is an attorney who is publishing content online for his or her peers, clients, and potential clients to read and consider.

"Write what you know" has been attributed to Mark Twain.

The Temptation to Write About The Unknown in Law Blogs

Law firms who have blogs for legal marketing purposes are always concerned with how their blawg is going to help the firm make rain.  Some track their analytics to see how many times a particular post link has been clicked; others monitor how often the blog has spurred someone to call the firm for more information or maybe even to set up an appointment.

ROI (return on investment) is important to judge.  True enough.

Thing is, if your blog is working for you as a marketing tool then there's always the temptation to boost what you are doing to get more traffic or more potential clients.  To expand your firm's practice or practice areas using the blog.

Conversely, if the law firm's marketing efforts aren't working and business is stagnant, then the firm may be considering new practice areas as a way to boost business.  Writing blog posts discussing that new area of the law may be one of the first toes they put in the water as they segue the practice .  

There's also the reality that after awhile, the blogger runs dry on things to discuss and is searching for ideas and themes for new blog posts.  Maybe new practice area issues or blog themes will be easier to write.

My suggestion:  please don't decide to write posts discussing a new and untried practice area.  It's one thing for a savvy personal injury lawyer, for instance, to decide to focus efforts on a new type of PI theme, like delving into the product liability area.   It's another thing for that personal injury lawyer to decide to market in criminal law just because he (or she) thinks that criminal trials would be exciting, different, fun, or profitable.

Here's why.
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Write About What You (or Your Law Firm) Knows

Most blogs aren't taken as seriously as more traditional publications, like your Bar Journal monthly magazine, or even blogs like HuffPo.  Your reader is going to be taking your post seriously, however.  And so will your State Bar should they decide to review your stuff.

It's just smart to write about the practice areas you know and within which you have experience.  If you are an injury lawyer or law firm who would like to venture into criminal law, great!  Go get that CLE and learn your criminal rules of procedure and insure that you are competent to practice criminal law before you start writing posts on your professional law blog about criminal law issues.

Moreover, if you're a personal injury lawyer who writes a blog post (or a series of posts) about criminal law matters, then you are putting yourself out to the public as a criminal attorney just as if you were to buy advertising on a local radio station or an advertisement in the telephone directory.  There are ethical considerations here (and disciplinary rules) that need to be considered when lawyers are blogging.

Bottom line, if you are a lawyer writing about a legal issue on a law firm blog, either have a personal professional depth in that topic via education and/or experience, or may sure to quote your law firm expert who practices in that area as part of your coverage of the topic.  Don't be what my Uncle Billy would call "a man with a hat and no cattle."  It can get you in trouble with readers, potential clients, and the disciplinary authorities.  
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