Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

31 January 2008

17:18 [GMT-6]

Silent E

A recent quasifiasco concerning the choice of a pseudonym illuminates one of the reasons that I want the literary agent community to be licensed and regulated. As noted by both Sarah Weinman and Ron Hogan, one of the latest manufactured-for-publicity "mysteries" in publishing is the identity of Inger Wolfe, the pseudonym chosen by an undisclosed "Canadian literary author" for a forthcoming mystery novel. Meanwhile, as Weinman notes, there's already a Danish mystery writer named Inger Wolf (no terminal e) with her own website.

This leads to an obvious question: Exactly what idiot approved this choice of pseudonym, which almost certainly breaches European unfair competition and trademark law and probably breaches US unfair competition and trademark law? It obviously wasn't a competent attorney; any competent attorney would have routinely done a trademark clearance as part of the process of picking a pseudonym, and it would have turned this up.¹ However, most literary agents never get to the point of being able to spell "trademark," even though they are de facto representing third parties and drafting contracts requiring legal judgment on the behalf of those third parties. That's the practice of law. And literary agents — as recent sad experience demonstrates — have a far, far more sophisticated understanding of the relationship among author identity, publishing branding, and trademark and unfair competition law than do editors, art directors, and "contract specialists" at publishers.

I don't think all agents need to be lawyers; for one thing, the skill set for being an agent is the opposite of what one learns in the last half of law school. I do think that all agents need a certain, mandated legal education, roughly equivalent to a full semester of law school, in some basic legal doctrine; not just contract interpretation and drafting, but copyright, trademark, the personality torts (defamation, privacy, rights of publicity), basic civil procedure and choice of law, dispute resolution, and a smattering of other law-school-level topics. The purpose of this kind of education mandate is twofold:

Provide a high-enough entry barrier to keep out some of the sleaze — probably a majority of "agents" out there (most of whom you've never heard of), or at least pretty close to a majority, are either outright con artists or well-meaning schlubs who will never place a book with a commercial publisher of any size
Enable literary agents to know when they need counsel, and encourage them to get counsel early when it's relatively cheap

I've waited until now to comment on this because I wanted a chance to read and digest an opinion I knew was forthcoming (PDF) from the California Supreme Court. California has state regulation of talent agents... but only within the film and TV industries. It does not regulate "personal managers"; neither does it regulate literary agents. Leaving aside the disdain this implies for written work, it also sets up a rather dangerous and arbitrary distinction between when someone is acting as a "talent agent" and when that same person, for the same client, is acting as a "personal manager."

In this particular instance, a simple web search would have turned this up.

One of the major services that does this thing will work for anyone who has $95 to spare, and provides a pretty-easy-to-interpret and pretty exhaustive report. It comes perilously close to malpractice to not use such a service... or, at least, it would if literary agents were regulated, and therefore subject to liability for "malpractice" in the first place. I don't get a commission or referral fee for recommending Thomson's services; they're not the only provider of these services, but in my experience they provide the best balance of timeliness, cost, comprehensiveness, and understandability.

Labels: intellectual property, law practice, publishing

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Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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