Friday, February 26, 2010

Copyright and Hello Kitty

I have a copyright question for you, in regards to the publication of artwork.

A very talented friend of mine has a business painting portraits of childhood toys. Parents (or generally nostalgic adults) send her their photos of favourite toys, dolls, plush animals, etc., and commission a beautiful expressionistic portrait on canvas. This business is growing, due to the quality of the artwork. She is now interested in putting together a book featuring this artwork, to submit to an agent. However, she's concerned there might be copyright infringent issues at hand, because so many of the subjects in these paintings are recognisable as commercially produced toys.

For instance, she knows that a stuffed 'Hello Kitty' toy is already protected by a world of trademarks and copyright laws. Would a painting of it create a minefield for a potential publisher?

Yes. I think it probably would. And there's something else you haven't mentioned: people have paid for these artworks. That means they own them. That means that the artist can't just put them in a book unless she has express permission from the owners of the artwork, especially as she's creating these works on commission - the owners of the toys (or their parents) have asked her to do the paintings, so they're not her original idea. Even if the toy isn't as recognisable as Barbie, the owners of the toy may not like having it depicted in a book.

Presuming that all of the toy/artwork owners have given permission, there could be issues of trademark (more trademark than copyright). I don't know intellectual property law as well as I used to, so I can't say what's allowable in terms of artwork. Some things are allowable if they're 'satire' but I don't know whether or not there are other exemptions - it's possible that if she'd painted Hello Kitty wearing a hula skirt it would be easier to put the painting in a book than a straight-up portrait. A straight-up portrait could be considered 'passing off'.

The best thing for your friend to do is to seek a legal opinion before she does anything else. She needs an opinion on her ability to reproduce the works and also on the content of the works. An intellectual property lawyer specialising in copyright and trademark should be able to help, and $300 or however much they charge per 6 minutes (joking! I'm sure you get at least 12 minutes for that much money) is, actually, not a lot to pay to either know she's in the clear or to avoid doing a large amount of work - putting the book together, submitting to publishers - for nothing. Why spend a lot of time worrying about it when you can pay a professional to put your mind at ease? Now, if I can just get an IP lawyer to sponsor this blog ...

The in-between times

I'm in a bit of a quandary. I managed to sell an urban fantasy trilogy myself to a large publisher here in Australia. However, after the stress of that, and following various head-thumpings from author friends, I've decided I want an agent to work with in the future.

My question is - do I need to wait until I've got the next project to a suitable level before approaching agents to represent it, or could I get one based on what I've already sold and a proposal for the follow-up? Note that the publisher has world rights both print and electronic, so all I've got of this trilogy for an agent to look after is things like film rights.

I'd rather get an agent sooner rather than later, so I can just keep plowing ahead with developing my career and not having a major break between publications because I need to finish the project to get an agent.

First of all, congratulations - it's a big deal to get a one-book contract, let alone a trilogy!

Now, to your question. It's a tricky time to get an agent, but you've already identified why. There's not much for them to do on your existing contract, so there's no way for them to earn commission and, to be blunt, an agency is a business and we can't afford to work for nothing. Also, again to be blunt, there's unlikely to be a film option because 'fantasy' translates to 'big budget' - when was the last time you saw a big-budget Australian film that wasn't made by Baz Luhrmann? It would need to be optioned in the US and that means you need an agent who has US film contacts. And even if they had those contacts, they're unlikely to take it on just for film because film usually takes a long, long, long time to pull off.

So, yes, it's a bit of a quandary. You can starting talking to agents about your next project - you send an email or call and say you've got the contract and your next project won't be written for a while, but would they like to talk. You may find someone who loves fantasy and is happy to talk to you now. What's more likely to happen is that they'll ask you to keep in touch until you have a little bit of your next manuscript ready to show and then make a decision based on that.

However, there's another way. If what you want is for an agent to come in on the existing contract - to ask questions about foreign rights, to do film, for you to generally chitchat with - then you may be able to come to an arrangement. It's not common but I've heard of it being done - you may ask the agent if, in exchange for commission on the rest of the advance payments on your existing contract, they will take you on for any work relating to that contract (and that can include editorial feedback on the rest of the trilogy). The agent should not - cannot - take a fee for this, it has to be on commission. But the option is there and you can ask about it.

Tuesday, February 23, 2010

The commonwealth of stories

As the Australian publishing industry is still trying to get its head around this digital thing - and still somewhat acting as if the internet will go away if we just close our eyes for long enough - it occurs to me that part of the confusion and resistance could be caused by the fact that the internet is simply not a medium many of them are comfortable with, particularly in terms of their work. They use the web for email, to find out information, perhaps to order groceries. But they don't think about the pages they read in terms of content - thus, it's hard to perceive how a book may also be considered content, or content source.

There could be something else behind the resistance, too. A lot of us in the industry were library nerds or, at the very least, bookish children and teenagers. We formed our identities around the idea that we loved to read. Reading was our refuge from the harsh world; it gave us our own commonwealth, even if we were all so introverted that we rarely interacted with other bookish people. And our love of reading let us tell ourselves that we were smart, and apart from others. I read, I don't play sport, I don't watch television. Sport and television are for people who don't like reading and my reading makes me somehow superior.

I'm speaking from personal experience - I was a horrible reading snob. But it didn't mean I was smarter than everyone else. It just meant I was a horrible reading snob.

Now take a horrible reading snob and plonk them down in front of the idea that e-books just may reach people who play sport and watch television. E-books - because of ease of research and purchase - may reach people who didn't read books as children, not because they didn't want to, but because they couldn't. I mean people with dyslexia, for example, who want to read but for whom reading is torture - so much so that they'll never go into a bookshop because they don't know what they want to read and they don't want to have to explain that to the horrible reading snob behind the counter. But e-books mean they can take their time trying to find something they may like and they can, if they want, read it on their phone so no one can see. E-books - digital publishing - open up the world of stories, both fiction and non-fiction, to many, many more people. And inherent in that is a threat to the safe world order of the horrible reading snob who believes that stories belong to readers alone.

But they don't. Our first storytellers did not write their stories down - they told them out loud. When all storytelling was oral, the stories belonged to everyone. The advent of the printing press changed the dynamics of storytelling and oral storytelling now takes place on - wait for it - the television. And the cinema, radio and theatre.

However, that doesn't mean that the stories contained in books should belong to only those who can read them. Stories belong to everyone - to every single person who speaks the language they're told in. The stories that are contained in books do not belong only to the horrible reading snobs. They belong to the people who can't read so happily; they belong to the blind; they also belong to the illiterate. While e-books won't appeal or be accessible to everyone, I do think they will open up more stories to more people once the devices are more affordable and access to e-books is more widespread. At this point in time it's just my personal theory - I have no proof of it. But my safe, protected, printed-book, horrible-reading-snob world is coming to an end, and I think it's exciting.

Ten rules for writing fiction - from The Guardian

A friend sent me this link yesterday - different writers such as Elmore Leonard and Roddy Doyle each giving their ten rules for writing fiction. My favourite list is by Anne Enright, who wrote The Gathering, amongst other things. Here's a snippet:

'1 The first 12 years are the worst.

'2 The way to write a book is to actually write a book. A pen is useful, typing is also good. Keep putting words on the page.

'3 Only bad writers think that their work is really good.


'6 Try to be accurate about stuff.'

Words to live - and write - by.

Tuesday, February 9, 2010

In the shadows

I have a commission to help someone write a book about their life. Luckily the person is interesting, humorous and a great storyteller, and the people they met and the things they did will have resonance with many people. The story is personal but also a social history of a place and an era as observed by the subject.

I am not intending to use this book as a platform-building exercise for myself as I have worked in journalism and am working on my own fiction titles (which down the track will raise the issue of whether I'll use a pseudonym). The story has definite merit and my primary task is planning what to put in and leave out, and the style of narrative. There are also many good images. Initially I am preparing a synopsis and some chapters to show to publishers, and we have a couple happy to look when we are ready. For now I am considering how best to present the story and playing with a couple of styles - 1) either to ghostwrite (although not entirely, as my name will still figure somewhere) or 2) author the book as narrator including sections of text drawn from the subject's anecdotes which are entertaining and give a real sense of place. I am trying out both styles. The subject sees me as authoring the book; I see it as their story.

What kind of style do you think would hold most appeal in terms of marketing this book? Ghostwritten or authored? What other aspects are there to consider that I've not mentioned here?

Without knowing what manuscript you're writing and who the 'author' is, it's impossible for me to say which style would have more appeal. One general rule, though: if the author is a well-known public figure, then you should ghostwrite, because it's the author's name that will attract readers, not yours. Beyond that, though, all I can say is that you should serve the story. If the story flows better with the author as narrator, write it that way; if it's easier to tell it with a third-person narrator, do that. The second option you mentioned - that you are the first-person narrator - is probably the one I'd be least inclined to recommend unless you have enough authority over the story to carry it off - i.e. that you are involved enough in the story to be a logical narrator.

You mention that your name will have to come up somewhere, even if you ghostwrite, but I'm not sure why that is, unless you're an integral part of the story. Ghostwriters have to subsume themselves to the story - that's just the way it goes. No name, no recognition, but presumably a nice little fee. Ghostwriters do it for the money, for the interest, for the challenge. For lots of reasons other than recognition. So you need to either ghostwrite or be in the story - you can't have both.

Send no monies

I have just finished a 126,000 word novel (set in NZ) which I am confident is a very good story and novel. In 2006 I sent my first 30,000 words to the UK Writers' Workshop where (for a fee) an editor analysed and advised on my work. Taking his advice I re-wrote the 30,000 words and in 2008 resent him (to read on a friendly "mentor" basis) 20,000 words. He praised my work saying he enjoyed it immensely, and that I was "on the right track". I say all this only to point out that I have strived to gain objective comment on my novel and so far it's all been good.

My problem now of course is to interest an agent! My question to you is this: Would it work / be acceptable to send a cheque for say $300 with my submission and say: Please read my first 60,000 words and here's something in recognition of your valuable time? I'm not wealthy but I believe an agent ought to be paid to spend say 5 hours reading my first 60,000 words and I'd be happy to pay just to get SOMEONE to read my damn book that I slaved over for five years! What say you?

What a tempting notion, to be paid to read submissions ... But it's ethically dicey and, for that reason, any agent who is conducting business properly does not accept fees to read submissions. Yes, it would make our business model more feasible, particularly in our small Antipodean market of smallish advances and less books published than elsewhere, but if I accepted a fee for reading a submission the author would (quite reasonably) expect to get a result in their favour - and I don't sign up many new clients. I don't think many authors would take kindly to sending money for an agent to read the submission only to be told that the agent isn't interested. Paying a fee creates an expectation that in most cases we can't fulfil.

An agent's existing clients pay for their time, and it's those existing clients who are, technically, paying for the submission-reading time. Except for this fact: the reading of submissions tends to happen in our private time. So, yes, we're doing it for free, but to do it for fee is not just unwise but unethical. If we choose to take on a client they need to know we're doing it because we love their work, not because they've paid us to read their submission.

In other words: don't send money. Not only won't it be accepted (unless the agency is dodgy) but it's likely it won't win you any friends.