21 December 2003


But this blawg wouldn't be as much fun without some occasional spleen spattered on the screen, would it? This time, though, I'm really pissed off and insulted.

By Writer's Digest, naturally enough. WD has begun a pretty-much-monthly "Ask the Lawyer" column. The difficulty begins with the author; it claims that she is "an attorney and literary agent." Her agency proclaims that it doesn't handle fiction—yet most of the questions relate directly or indirectly to fiction.

Then there's the accuracy—or, rather, lack thereof—of the answers. Consider these examples:

  • "Derivative works may be copyrighted, but only the portions that are your original contributions." Bzzzt! Although a suit for infringement will lie only for the parts that are original contributions, the entire derivative work is copyrighted at the moment it is fixed. That entire derivative work may also be registered with the Copyright Office, and the copyright registration number assigned will cover the entire work; it is just that when it comes time to either file a lawsuit or sublicense, only the "new" parts belong to the author of the derivative.
  • "Even if you don't hold the copyright to the screenplay, it doesn't sound like you're crossing any legal barriers by allowing one person to read the work with the intent, presumably, to get her on your side." Bzzzt! See, e.g., Desny v. Wilder, 46 Cal. 2d 715 (1956) (presuming a confidential relationship between a hired/commissioned screenwriter and the provider of the underlying "idea").
  • "It needn't be a formal contract, a letter concisely describing your business agreement will suffice." Umm, that is a formal contract, unless the Statute of Frauds intervenes—and, on the facts of the question (not stated here), it would of necessity intervene, because the term of copyright would exceed one year. Thus, that letter is not sufficient.

It's bad enough that the publishing industry as a whole, and the agent community as a whole, are so [string of unbelievably foul and offensive expletives deleted] ignorant of the legal consequences and implications of their business practices, such as the unauthorized practice of law engaged in by literary agents when they negotiate contract terms other than price and quantity. When someone who is "an attorney and literary agent" adds her imprimatur to that ignorance…