Writers in the Storm

Susan Spann

As a publishing lawyer, I often get asked about copyright in scenes and settings, and how the law of infringement applies when stories are set in similar locations.

Like many other copyright questions, the answer depends on a number of factors. However, unlike many legal questions, the guidelines are straightforward and fairly easy to analyze.

The key to understanding how copyright (and infringement) relates to settings is remembering that copyright law protects an author’s unique expression, but does not protect either facts or the “building blocks” of expression.

A setting which is unique, or created entirely by the author, receives far more protection than one which is based on historical events or real places…but that’s not the end of the story. There’s a spectrum of creativity, and a setting (like a character or other elements of an author’s work) receives increasing protection as the author and the description moves along it.

Let’s take a closer look.

Copyright Law Does Not Protect Historical (or other) Facts.

If you write a historical novel based on the explosion of the Hindenburg, you can’t prevent other authors from using that topic. You cannot prevent them from using the Hindenburg as a setting, and you can’t claim infringement if the real historical figures who appear in your novel also appear in another author’s work.

Copyright Does Give (Limited) Protection to Unique Expressions of Historical Events.

You can protect the unique, creative way in which you describe and express the historical events, but the closer your expression comes to duplicating historical facts, the thinner the protection you receive. If your novel includes the actual newspaper headlines that appeared on the day the Hindenburg exploded, you can’t stop another author from using them also. However, if you create a fictitious newspaper for your novel, and write a fictitious headline, you can prevent other authors from using that portion of your work.

Fictitious Locations Based on Genuine Ones Receive More Copyright Protection Than Real-World Locations.

The layout, construction, and other facts relating to real world locations qualify as “facts” for which copyright protection is unavailable. If you set your novel in and around the Empire State Building, and use accurate descriptions of the location, you can’t prevent other authors from using that location (and describing it) also. You can prevent outright copying…unless the part of your work that’s copied is merely a fact (for example, the number of windows in the Empire State Building which face south, or the number that catch the sun at 4pm on a January afternoon).

However, the level of protection increases if you use a fictitious building based on—but different from—a real one. A good example of this is Nakatomi Plaza, the building which serves as the setting for the movie Die Hard. Nakatomi Plaza isn’t a real place, but the building the director used to represent it is real—it’s called Fox Plaza, and it’s located in Century City, California. By fictionalizing the building, the scriptwriters allowed themselves not only more leniency in “constructing” sets, but also ensured that no one could legally “lift” those descriptions and sets for use in another work.

Completely Fictitious Locations Receive the Highest Level of Copyright Protection.

J.K. Rowling’s wizard academy, Hogwarts, is located “in a castle” somewhere in England. Readers will notice that Rowling didn’t name the castle or its exact location, enabling her to construct a completely fictitious setting which would receive the highest possible level of copyright protection. It doesn’t matter whether or not she used a real-world castle to inspire Hogwarts, or even if she used some parts of that castle as the basis for Hogwarts’ rooms. By making Hogwarts a completely fictitious place, she ensured that it belonged to Harry Potter’s world—her world—alone. If you copy anything from Hogwarts (aside from the “basic building blocks” – for example, and no pun intended, the fact that the castle is made of stone), you’re probably infringing her copyright.

What is a “Basic Building Block” of Expression?

The answer is as simple as sandwich cookies and Oreos. The idea that a baker could take two cookies and put a filling between them, thereby creating some kind of “cookie sandwich,” is a basic building block of expression—a generic concept. Anyone can make a sandwich cookie, using any kind of cookie and any filling the creator desires. However, if you use a particular recipe of chocolate cookie, with designs on one side, and you fill it with a specific mixture of white, sugary filling, and if you have the courage to stamp the word “Oreo” on the side…you’ve copied enough of something that belongs to someone else that you’re probably going to get sued. In the baking world, the lawsuit would be for trademark infringement. If you duplicate an author’s wordsmithed Oreo, the result is copyright infringement.

The basic building blocks of expression are generic concepts, settings, and character archetypes: the whodunit mystery, the subway, and the cop.

The farther an author strays from those basic, generic archetypes, the higher the level of copyright protection his or her creation will receive.

Any author can write about “a cop” or use a policeman as a character. An ex-cop who has become a butcher receives a little more protection. But give that ex-cop butcher a love of tapioca pudding and a phobia of vacuums and you’re getting into the territory nobody else can copy without consequences.

The takeaway lesson? It’s fine to use fact-based settings (and most of us need to, when our works are based in the “ordinary world”) – but know that other authors can use those settings too, as long as they don’t copy your work. However, the more creative you can be, the more protection your work receives…so write the best, and most creative story you can, and when you do use facts, be sure to express them in your own unique voice and manner.

Do you have copyright questions for Susan? Have you used historical settings in your books? Share them all with us down in the comments!

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About Susan

Susan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases in July 2015.

Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

Hi everyone, I’m Orly and I’m a challenge addict.

It started innocently enough. You know, a writing challenge here to get motivated, another challenge there to get a draft done. Pretty soon it became multiple challenges a month. What can I say, there’s just something about being in a group of writers suffering with supporting each other.

And there are so many challenges out there to enable motivate the writer in need.

Since I’m recovering from a month with two challenges, dog-paddling through the beginning of another challenge, and looking ahead to the next challenge, I thought I’d share a few thoughts to help my writing friends:

1.  Identify.

Not all challenges are created equal and not all challenges are right for you. NaNoWriMo, for example, is a great motivator for those who can crank out word count, but if you’re a slower writer or an agonizing writer, that kind of challenge may be more disheartening than motivating. ROW80 ("the writing challenge that knows you have a life") requires measurable goals but you must post a blog with your progress every week.

A Facebook writer’s group I’m in had a fun challenge in January pitting writers against rewriters. Everyone picked a side based on where they were in their project, then announced their personal goal. It was energizing watching everyone post their accomplishments.

There are challenges of all shapes and sizes. Look around, ask around, and pick one that suits your needs. Signing up for NaNo when you’re revising probably isn’t the best plan – trust me on this! Been there, tried that.

If you don’t find one that suits you, create one with your own writing group. Challenges don’t have to be huge or complicated.

2.  Plan.

Once you identify the challenge, it’s time to figure out what you’ll need to accomplish it. Each November I sign up for PiBoIdMo, that’s Picture Book Idea Month. “Planning” for that includes buying an adorable notebook to capture my 30 days of picture book ideas and then optimistically writing out 1 through 30 on the top right corner of the pages.

If you’ll be participating in a challenge with word count, planning may include advance research or ensuring you have dedicated time each day to write. This wouldn’t be the time to schedule a bathroom remodel where you’ll be constantly interrupted by workers and construction noise (yes, been there, done that – noticing a trend here?).

Make sure you have whatever research or craft books you need for writing handy. Draft an outline or post your plot points where they’ll be easy to see. Print out any inspirational quotes that will kick your creative brain cell butts into gear.

3.  Jump in.

Now you’re ready. The calendar clicks over and it’s time to jump in. Bring on the challenge, baby! One additional thing you need, though … a good attitude.

You only have 14 new picture book ideas instead of 30? That’s 14 more than you started the month with. And out of those 14, there are probably at least one or two that can be flushed out into a great manuscript. You publicly announced that you’d write 25k this month and only wrote 17k? You’ve added 17k to your manuscript and established forward momentum.

Challenges are for celebrating accomplishments. Every word, every idea, every page revised is an accomplishment because you're that much closer to a completed project. Not to mention the camaraderie and bonds you’ve made with fellow challenge participants.

Okay, I lied. Following those steps won’t help you conquer the challenge addiction. But they will help you have fun and succeed. And isn’t that the point of joining challenges in the first place?

Are there challenges you absolutely love and want to share with WITS readers? Do you have other success tips to share?

Because we’re suckers for a good challenge, the WITS team decided to share our addiction with our beloved readers. On April 20, we’re holding our own little challenge - Write Up A Storm. From noon to midnight Eastern time, we’ll be Writing Up A Storm on the WITS Facebook page. That’s write … wait, right, ahh they both work. Pop in for an hour writing sprint or hang out for a couple of hours or the entire 12 hours. After all, misery creativity loves company.

Will we see you at the WITS Write Up A Storm challenge?

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About Orly

After years of pushing the creativity boundary in corporate communications, Orly decided it was time for a new challenge. Three women’s fiction manuscripts later (plus a handful of picture books), it’s safe to say she’s found her creative outlet. When she’s not talking to her imaginary friends, she’s reading or at least trying to ignore everyone around her long enough to finish “just one more paragraph.” Orly is the founding president of the Women’s Fiction Writers Association.

You can find her on Twitter at @OrlyKonigLopez or on her website, www.orlykoniglopez.com.

Holly Robinson

I'm in a semi-comatose state after crashing through the first draft of a novel in six months to meet my editor's deadline.

Not that I'm complaining. I've been struggling to get to this point in my career for over twenty-five years. After earning a degree in biology, I started writing fiction and went for an MFA. I wrote a novel as my thesis and found an agent.  Surely, I thought, New York would find me now! Could Oprah be far behind?

Apparently, New York and Oprah had better things to do. My manuscript was rejected by a couple of dozen editors. So were the next five novels. Finally, I self-published my novel Sleeping Tigers through CreateSpace. Two weeks later, my agent sold the manuscript he'd been shopping around, The Wishing Hill, to New American Library/Penguin.

As a hybrid author, I straddle the worlds of Indie and traditional publishing, and this is the question I get asked most often: “Which did you like better?”

That, my friends, is a thorny question, but I've tried to describe the differences here so you can decide the best route for you.

THE ACTUAL WRITING AND EDITING PROCESS

Any way you want to publish, if you're a first-time novelist, you will have to write the whole book before you sell it. However, there are some significant differences in the writing and editing process.

Going Indie: In writing an Indie novel, you obviously have to finish the manuscript entirely before you can make any money. If you collaborate with an editor and copy editor along the way (and I hope you will), you call the shots. You can write as slowly or quickly as you choose, and you don't need an agent.  Indie authors who make the most money are those who 1) typically write genre fiction, like romance or fantasy; and 2) write quickly and 3) usually in series.

The Flip Side: If you're going to publish with a traditional house, you need to first convince an agent that you're worthy, which can take months. Then, when the agent sells your book, the editor will probably send an editorial letter with holistic revisions, talking about things like character and structure. After, that you'll do a second round of pickier line edits. Finally, you'll get the copy editor's draft with dozens of queries that make you want to tear your eyes out with a fork. The bad news is that this process takes a year or more. The good news? Your book will ultimately be much better than you could make it on your own.

MARKETING YOUR BOOK

People naturally assume that, if you're with a big publisher, you'll have a publicist and everything will come up roses. You can simply hole up, focus on writing and forget about pimping your book. That's not exactly true.

The DIY World of Indie Book Marketing: With Indie novels, you are the only one steering the plane. If you want a Kirkus review, you pay for it. Ditto an ad on Goodreads.  It's difficult to get Indie novels in bookstores. This all takes time, patience and creativity, but the good news is that you can build buzz yourself through online promotions, blog tours, Goodreads giveaways, etc.

The Flip Side: Once I was with Penguin, I was astonished to discover that, months before a novel comes out, it's appearing all over: Amazon, Goodreads, Barnes & Noble, Powell's. I recently went on Goodreads and was shocked to discover there was a giveaway of Haven Lake, my newest novel—100 copies—five months before its April pub date!  The weird part was that I didn't even know it was happening. Months before a book is released, I also start getting emails from the publicist describing which book bloggers she has contacted, where the book is out for reviews, etc.  Bookstores order my books after visits by Penguin sales reps. However, traditionally published authors must still do their share of marketing, because publishers only devote about three months to pushing each book out the doors. In today's world, few writers can afford to closet themselves. Marketing happens 24/7.

The Bottom Line: Where's the Money?

Some Indie Authors Do Make Money: I know a lot of Indie authors who are disappointed when they publish books and sell only a handful of copies—certainly not enough to pay back their initial investments. I also know Indie authors who make bank. Most Indie authors keep a lion's share of their royalties—usually 70 percent—and they have no agents, so they don't pay commission. Other than the initial investment in cover design, copy editing, etc., most of the money goes to you—or to advertising.

The Flip Side: Traditional authors get a much smaller percentage of royalties—25 percent, if we're lucky—and we have to pay agents 20 percent of our earnings on top of that. We have no control over the prices of our books. Advances are paid on the basis of an entire manuscript first, and then on the basis of a synopsis and a few chapters for subsequent books. It's nice to get money up front, but those advances are divvied up in three parts—the first on signing, the second on delivery, and the fourth on publication—and have been waning in size over the past decade. An advance now can be as low as $3000 for a full-length novel. Traditional authors can, and are, dumped by their publishers if they don't make their advances. This all sounds terrible, I know, but remember that you're not pulling your wallet out of your pocket for anything, either. Whatever you make is profit, and it's great to have the wheels of marketing turning without you having to grease them.

Where's My Home?

I love self publishing. I love having control over everything from the cover to the marketing. I take huge satisfaction in watching sales grow, and enjoy those surprising “lottery win” moments, like when Audible recently bought the audio rights for Sleeping Tigers—which, right there, made up for my initial publishing investment. Most of all, I love the idea that I can write what I want, when I want.

However, immediately after Penguin published my first novel, they bought the next on the basis of a synopsis—and then two novels after that. I feel like I'm balancing on top of a speeding train and I love this, too. I adore working with this particular editor, whose sensibilities mirror mine. And, because I don't write genre fiction in series, but stand-alone novels, Penguin has sold many, many more of my books than I could have done on my own. For now, I am happily at home in the traditional publishing camp. But I'm glad I self-published first, and I would do it again in a heartbeat.

What publishing camp are you in? Do you have questions, or observations to share?

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About Holly

Novelist, journalist and celebrity ghost writer Holly Robinson is the author of several books, including The Gerbil Farmer's Daughter: A Memoir and the novels Beach Plum Island and Haven Lake.

Her articles and essays appear frequently in The Huffington Post, More, Parents, Redbook and dozens of other publications. She and her husband have five children and a stubborn Pekingese.