Susan Spann

About Susan Spann

Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books. Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues. When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.

How to Prepare and Use a DMCA Takedown Notice

March 25, 2019 By Susan Spann 5 Comments

Flickr Creative Commons: Noirathsi’s Eye

The Digital Millennium Copyright Act (“DMCA”) is a U.S. law designed to protect content creators (and Internet Service Providers), and to “maintain a balance between the rights of authors and the larger public interest.”

I could write a book (and people have) describing the DMCA in detail, but the part of the law most relevant to authors – and the topic of today’s post – is the DMCA Takedown Notice.

(Advance apologies for the length of this post, but it takes a little space to describe the process in a useful way.)

Under the DMCA, website hosts and ISPs must promptly investigate and resolve copyright infringement claims, provided the claims are presented in a DMCA-compliant notice (normally called a “DMCA Takedown Notice”). The legal requirements for this notice are established in 17 U.S. Code Section 512 (c)(3). In practical English:

To put an ISP on notice of copyright-infringing material on a hosted website, the person claiming infringement (or his/her representative) must send the ISP a written notice (many ISPs accept these notices in electronic format, and many websites post a DMCA submission form) containing the following information:

Identification of the infringing material that the owner is asking the ISP to remove (or disable access to), along with enough information for the ISP to locate the material. (Normally, a URL or link to the infringing content on the hosted website.)
Identification of the copyrighted work the owner claims has been infringed. (If multiple works by one author are involved, the owner can send a single notice that lists all of the works.)
Sufficient information for the ISP or website to contact the author of the DMCA complaint. (Generally, a physical address, telephone number, and valid email address.)
A statement that the complaining party (you, if you’re preparing the notice) has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, any agent of the owner (such as a publisher), or the law.
A statement, made under penalty of perjury, that the information in the notice is accurate and that the complaining party (you, if you’re sending it) is the copyright owner or legally authorized to act on the owner’s behalf.
The physical or electronic signature of the copyright owner (or an authorized representative, like an attorney, agent, or publisher).

Before you send a DMCA notice to a website or ISP you should:

Make sure the website doesn’t have permission to post the material. Check your contracts, licenses, and grants of rights (and check with your publisher, if you have one) to make sure the use is actually a copyright infringement. It’s embarrassing to send a DMCA notice and get a response that says, “We have a license.”
Make sure the use is not “Fair Use.” Generally, offering free access to a copyrighted work, in its entirety, without permission, is copyright infringement – but if the use is only an excerpt, or if you’re not certain about fair use, contact a lawyer before proceeding with a DMCA notice.
Confirm the proper recipient of the notice. If the website doesn’t include a copyright agent or administrator’s contact information, you can generally send the notice to the website host (the ISP that hosts the website on its servers).

Be aware: a DMCA Notice is only legally operative within the United States, in countries that are signatories to the copyright treaty that prompted the DMCA’s enactment in the United States, and in countries that have enacted laws similar to the DMCA (with similar notice requirements).

And now for the bad news: [Read more…]

Holiday Copyright Tips

December 10, 2018 By Susan Spann 11 Comments

Happy Holidays!

‘Tis the season . . . to stay off the copyright “naughty list” . . . so here are some tips for avoiding copyright infringement—not only through the holidays, but all throughout the year:

SONGS (AND LYRICS) ARE PROTECTED BY COPYRIGHT

During the holidays, it’s tempting to blog or post the lyrics to favorite carols or celebratory songs—not only on your website, but on Facebook and other social media sites as well. Unfortunately, reproducing lyrics, or poems, in their entirety often violates U.S. copyright law, because lyrics and poems are protected by copyright until they enter the public domain at the expiration of the copyright term.

Posting an excerpt is often permitted under the “fair use” exception to copyright law. However, despite what you often hear online, there is no absolute “fair amount to use.” Popular myths like “two [or five, or six] lines is always okay” are just that: myths. In reality, there is no “bright line” test for copyright infringement. The actual legal test involves the evaluation of four different factors based on the specific “facts and circumstances” of the use.

If you want to share a favorite song or poem, you’re better off quoting the title, or a line or two and then sharing a link to an authorized website that reproduces the work with permission from the copyright holder, or to a video showing an authorized performance of the work.

RECIPES ARE NOT PROTECTED BY COPYRIGHT…EXCEPT WHEN THEY ARE.

Copyright law protects creative expression, but does not protect “functionality” or “facts.” Ingredient lists and basic, functional steps to combine the ingredients in a way that creates a specific type of food is generally considered a functional process, for which copyright is thin (and sometimes, nonexistent). Generally speaking, that means it’s OK to share a recipe.

In fact, U.S. courts have ruled that recipe ingredient lists are merely “statements of facts,” which are not copyrightable, and that factual parts of the recipe’s directions (meaning the instructions regarding combination of the ingredients and the manner in which they’re cooked) are not copyrightable either.

However, creative portions of recipes – including the way the instructions are given and any anecdotes, “tips and hints,” and humorous asides are copyrightable. In other words: you generally can’t reproduce a creatively-worded recipe verbatim, especially if you try to claim it as your own. That said, you probably can share a recipe, translated into your own words, as long as you stick to the functional elements and write your own hints, tips, and “bonus material.”

But Please Remember: in recipes, as in life, ethics matter. While it may be “legal” to strip down and reproduce someone else’s recipe without attribution, it’s not very ethical. If you love a recipe someone else created, it’s better to share your experiences making it (with photos!), and also attribute—perhaps even with a link to the source. You could also share the ingredient list and instructions, and link to the source for tips and creative content. If you have no way to offer a link, it’s also nice to mention the name of the person who created the recipe (if you can). [Read more…]

When Zero Is Greater Than One

September 24, 2018 By Susan Spann 5 Comments

During the early days—correction, decade—of my writing career, before I had either an agent or a publishing deal, I often felt a kind of desperation. When would it finally be my turn? When would I see my work in print?

Would my day ever come?

I wrote, I researched agents and publishers, I pitched and queried, and—like everyone—I received rejections. Rejections upon rejections, until I almost dreaded opening my email for fear of finding another missive that began, “Although I enjoyed your work, I’m afraid I just didn’t love it quite enough to take a chance in this difficult market . . .”

At times I felt tempted to stop researching “fits” and simply adopt a shotgun approach in the hopes of finding any agent or publisher willing to take a chance on my stories.

Fortunately, twenty years of experience as a publishing lawyer stayed my hand. Because, despite the temptation, I knew that having no agent and no publishing deal is better than having a deal I would later regret.

The same is true for you.

Before signing a contract with an agent or publishing house, you must take off the emotional artist hat and evaluate the offer with a non-emotional, business manager’s eye. Consider every aspect of the deal. Does it make business sense? Does it fit your plans and desires for your overall career? For where you are now, and where you hope to go?

Beyond that, take the time to consider these important factors: [Read more…]

Fear is a Liar

June 25, 2018 By Susan Spann 37 Comments

Fear is a liar.

Fear will break your courage, steal your dreams, and tell you that neither you nor your art will ever amount to anything.

Of all the many hurdles that stand between writers (or any other person) and their dreams, fear is often the hardest to fight, and the easiest to surrender to.

For many years, I lived in fear of failure. I refused to write, despite the stories that burned inside me, because I feared that if I tried and failed I would lose the only identity—that of writer—that had defined me as long as I could remember. I went to law school instead of pursuing a career in writing, because I wanted stability I didn’t believe I could get from writing. I continued to practice law even after my first novel, Claws of the Cat, was published in 2013.

I told myself there would always be time to travel more extensively in Japan, to climb the Nihon Hyakumeizan (hundred famous mountains of Japan) and to break through the wall of fear that kept me chained to the security of a lawyer’s life.

Last September, as I faced the upcoming tenth anniversary of my father’s death, I decided to face my fears, take a sabbatical, and spend a year in Japan climbing mountains and writing at least two books (one mystery and one nonfiction book about my attempt to become the oldest American woman to climb the hyakumeizan in a single year). It was time to take a chance and pursue my dreams, despite my many fears.

And then, in November—just as my husband and I prepared to sell our house and move to Japan—I was diagnosed with a highly aggressive form of breast cancer. Fortunately, we caught it at Stage 1 (a side note: ladies, please get regular mammograms—the one I had last November literally saved my life), but instead of heading off to Japan, I found myself facing major surgery (double mastectomy) and four months of intensive, dose-dense chemotherapy.

In my former life, that diagnosis and the fight against cancer would have killed my dreams. I would have let my fears—of the cancer returning, or not having the strength to complete the mountain climbs—derail my plans. I would have retreated into a place of self-pity, excuses, and sorrow, and accepted that climbing mountains (much less writing books about it) was a job for people younger, stronger, and more capable than me.

But that cancer diagnosis taught me a very important lesson: none of us has a guaranteed tomorrow, no matter how safe and secure our lives may seem. Fear will always predict your failure—but if you never try, you can’t succeed. [Read more…]

The Hidden Dangers in Short-Form Publishing Deals

September 25, 2017 By Susan Spann

Authors have many things to watch out for when evaluating a publishing deal, but one of the most common—and most serious—dangers is something the author doesn’t see: the vital clauses and protections that are often missing from “short-form” publishing contracts.

Most authors look at standard publishing contracts (which can easily run from ten to twenty pages, or even longer) with a combination of confusion and concern. For those not versed in legalese (or, more precisely, Publisher-ese) standard contract terms can range from “complex” to “might as well be written in Sanskrit.”

Because of this, some authors see a three-page form and think “hey, this is great!” and “finally, a contract that makes sense!”

Beware…that way be dragons.

Publishing contracts are usually long because they deal with many important legal issues. (Note: anthology contracts are often short, because of the rights involved—this post addresses contracts for novel-length works only.)

“Copyright” is actually a bundle of rights, each of which needs to be addressed in some way in the publishing contract—if only to state that the ones not expressly granted to the publisher stay with the author.

Failure to deal with all of the relevant issues creates ambiguities, and in short-form deals, many of those ambiguities cut in the publisher’s favor.

I’ve recently seen a number of “short-form contracts” that claim to offer authors a “better deal” than “old, traditional, complicated forms.”

Again: beware.

Short form contracts do often include quite a few important clauses, such as grants of rights, royalty statements (and royalty levels), and when the publisher has to send royalty checks. However, short contracts often omit other critical provisions. When problems arise, the author goes to the contract, only to discover the “friendly form” doesn’t address the issue (or, worse, it does, but the publisher prevails).

Here’s a list of just a few important provisions short-form contracts often don’t include: [Read more…]

The Truth Behind Popular Copyright Myths

June 26, 2017 By Susan Spann

Copyright law can seem confusing, but authors need to know the basics—especially when (and whether) to register a copyright, and what to do when using a pseudonym. As a publishing lawyer, I work with copyright issues (and authors) all the time, and today, I thought I’d take a closer look at some popular myths about copyright law and how it applies to novels and other creative works.*

Myth #1: You have to register copyright in order to own the copyright in your work.

False. Registration with the U.S. Copyright Office is not a legal requirement for copyright ownership. Copyright attaches to “qualifying works**” automatically at the time of their creation. However, copyright registration is generally required in order to file a lawsuit against infringers, and to claim certain benefits under the U.S Copyright Act, so authors should register copyright within three months of a work’s initial publication.

(**Short stories, novellas, novels, anthologies, poetry, and similar fiction and non-fiction works all generally qualify for copyright protection.)

Myth #2: Authors benefit from copyright registration.

True! Copyright registration gives copyright holders significant benefits under U.S. law. Among them:

The right to sue infringers to stop infringement (and recover damages).
The right to collect “statutory damages” (money, in an amount established under the copyright act) for infringement, even if the infringer did not make substantial profits from wrongful use of the copyrighted work.
The right to recover attorney fees against an infringer in a successful lawsuit.

Many of these benefits are available only if a work is registered in a timely manner, meaning within three months of initial publication. However, some benefits (such as the right to sue to stop infringement) are available regardless of the timing of registration.

Myth #3: A book is not “published” for copyright purposes if you give it away for free.

False. Under the Copyright Act, “publication” means “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or “offering to distribute copies of the work to a group “for purposes of further distribution, public performance, or public display.” (17 U.S.C. Section 101)

The Copyright Act does not require that the author make any money (or profits) on sales before a work is considered “published.”

Also, the Copyright Act does not distinguish between self-published works and those published by a third-party publishing house. Published is published, regardless of the method the author chooses.

Myth #4: If you don’t register the copyright before publication, you can never register at all. [Read more…]

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How to Spot, and Avoid, “Pay to Play” Publishing Contracts

March 27, 2017 By Susan Spann

In recent months, I’ve seen the resurgence of several terrible “pay to play” publishing contracts that authors should learn to recognize and avoid.

My law school contracts professor used to warn us, regularly, that “a person can make as good a deal, or AS BAD A DEAL, as he or she is able.”

Accept one of these particular contracts, and you’ll be making a very bad deal indeed:

BAD CONTRACT #1: “WE PUBLISH, YOU PAY”

In this type of contract, the author pays the publisher for some or all of the editing, publishing, and/or distribution costs to produce the book. Often, the costs are not listed up front, leaving the author on the hook for undisclosed (and generally, enormous) sums. Where costs are listed, they normally exceed the amount the author would pay to hire professional developmental and copy editors, cover designers, formatters, and printers in order to produce and publish the work herself.

In a traditional publishing deal the publisher, not the author, pays the publishing and distribution costs. [Read more…]

This Way Be Dragons: How to Evaluate a Publishing Contest

January 30, 2017 By Susan Spann

Contests can be a great way for authors to get professional critiques, or get published, but contests also offer scammers and vanity presses a chance to take advantage of unwary writers.

So … beware!

Before you enter a writing-related contest, consider the following:

Always read the fine print.

In this case, that means the contest terms – no matter how long (and boring) they are. In most cases, entering a contest means you agree to the terms as written – whether you actually read them or not – and those terms are a legally binding contract. Read the terms, and do not enter if you see anything that you consider unacceptable or inappropriate.

Beware of copyright grabs.

Unscrupulous contests try to take ownership of entrants’ copyrights via copyright grabs (or “assignments of rights”) in the entry terms. Don’t enter contests that require you to assign your copyright to the contest sponsors (even for a limited term). The copyright should always remain yours and yours alone.

“Winning” should not cost you money.

Some contests require “winners” to purchase something—most commonly, copies of an anthology or the winner’s published book. Generally, this is a sign of a scam, or at least a contest designed to take advantage of author-entrants. Winning should never, ever cost you money.

If the prize is a contract, ask to see it . . .

…Or at least make sure that the terms are reasonably negotiable. Don’t agree to contracts sight-unseen, in a contest or otherwise.

Consider entry fees carefully.

Contests should not be money-making endeavors for the organizers, though sponsors do have a right to cover costs. Slightly higher fees are reasonable when the contest includes a personalized critique, a copy of an anthology composed of winning entries, or something of similar value. Consider whether or not you feel the contest is worth the price of entry.

Evaluate the contest sponsor. [Read more…]

Knowing When to Walk Away from a Publishing Deal

September 26, 2016 By Susan Spann

Many authors spend years (if not decades) seeking a traditional publishing deal. Unfortunately, when the offer comes, it isn’t always a good one—and knowing when to walk away (and having the strength to do it, despite the steepness of the road) is one of the most important business skills an author can develop.

While no one can, or should, tell you when to refuse a contract, let’s look at a few situations when wise authors should consider walking away from a publishing deal:

1. When the publisher is a vanity press, a scam, or taking advantage of authors.

Legitimate traditional publishers never ask the author to pay for anything out-of-pocket (and should pay royalties based on gross receipts or sales, without deducting publishing costs or expenses before calculating the author’s share). If the publisher asks the author to pay expenses or purchase “mandatory copies” of the work, bullies the author during negotiations (it happens!), or does anything else that suggests the publisher or the deal is not legitimate, the author should refuse the deal.

Investigate publishers carefully before submitting your work or signing a deal. If the publisher’s reputation isn’t squeaky-clean, or if anything seems “off,” don’t be afraid to walk away.

2. When the publisher won’t offer industry-standard terms or negotiate a reasonable contract.

Sometimes, even legitimate publishers’ contracts don’t meet industry standards for fairness. Most publishers are willing to negotiate, but if the publisher won’t budge on terms you consider vital, it’s better to walk away than to sign a contract you consider unreasonable or unfair.

I strongly recommend that authors obtain professional assistance with contract negotiations. Hire an agent or publishing lawyer who knows the industry to advise you or negotiate on your behalf. That said, each author has the right to determine the business terms (s)he is willing to accept. You have the power to refuse any deal that doesn’t meet your business standards.

3. When the publisher lacks the experience or capacity to publish and distribute the author’s work appropriately. [Read more…]

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The Legal Side of Writing for Anthologies

June 20, 2016 By Susan Spann

Anthologies offer writers an excellent platform for shorter works and create opportunities for reader cross-pollination. When managed and published properly, anthologies have many benefits and relatively few drawbacks for authors. However, authors do need to ensure–before submitting or signing a contract–that the anthology publisher is offering industry-standard contract terms and proper legal protection for the contributing authors and their works.

Today, we’ll review a few of the legal traps and pitfalls authors should beware (and avoid) when contributing work to an anthology:

1. Contracts Are Not Optional.

Every anthology should use a professional, written publishing contract (or release) containing industry-standard terms for anthology publication. If the publisher is taking only non-exclusive rights, and not limiting the author’s right to reprint and re-use the work in any way, a simple release will often suffice, but even this should be in writing. (Note: The author should always retain the copyright and subsidiary rights to the work, as well as the right to re-publish in other contexts. Also, the author should never have to pay the publisher any money or be required to purchase copies of the finished anthology.)

Anthology contracts and releases (sometimes titled “Permission to (Re)Print”) are generally shorter than contracts for book-length works, but they still need to address the relevant legal issues. Also, the contract (or release) must be in writing—emails documenting the parties’ “understanding” are not sufficient and often won’t stand up in court.

2. Never Sign Away Copyright to the Work.

Anthology publishers do NOT need, and should not ask for, ownership of copyright in the individual works that make up the anthology.

Anthology publishers need only a limited license to publish the contributed works as part of the anthology – and the contract should expressly limit the publisher’s use of the work to its inclusion in the relevant anthology or collective work.

If the author transfers copyright to the anthology publisher, the author no longer owns the work and cannot use or publish it in other contexts (without permission, which the publisher then has the legal right to withhold at will). Most anthology publishers don’t try to take ownership of the contributors’ works; don’t submit to anthologies that do.

One additional note: some anthology contracts state that the publisher owns the copyright on the anthology as a collective work. This is different from ownership of the individual stories. Anthologies actually involve two separate types of copyrights: [Read more…]

When is a Book “Out of Print”?

March 24, 2016 By Susan Spann

Therese here to officially welcome our newest contributor to Writer Unboxed: publishing attorney and author of the Shinobi Mysteries, Susan Spann!

In January, my guest post here at Writer Unboxed took a look at reversions of publishing rights and how to request them. Toward the end, I mentioned the benefits of clauses tying out-of-print status (and author termination rights) to a stated number of royalty-bearing sales. Today, we’re taking a closer look at out-of-print clauses, and how to understand them.

The “out of print” clause is often one of the author’s only chances to terminate a publishing contract without the publisher’s advance agreement (the legal term for this is a “unilateral” termination right).

Good publishing contracts (and self-publishing terms of use) should always give the author at least a couple of unilateral termination rights. Self-published authors should always have the right to terminate at will (subject to payment of any sums owed to the printer or distributor). In fact, out-of-print status shouldn’t appear in self-publishing terms of use at all, because the author-publisher should have the exclusive right to decide when the work is available and when to take it out of print.

In traditional publishing contracts, the author should have (at a minimum!) the right to terminate if the publisher goes out of business, fails to publish the work or pay royalties due within stated periods of time, or fails to sell a stated number of royalty-bearing copies of the work within a stated time. (Many publishers will agree for authors to retain additional termination rights as well, but that’s a topic for another day.)

However, many older publishing contracts don’t tie out-of-print status to royalty-bearing sales. Instead, they tie out-of-print status to “availability” (or, worse, give the publisher the unilateral right to declare the work out of print). Some publishers still offer authors contracts using these older forms, so read the out-of-print language carefully—and negotiate it if necessary—before you sign a publishing deal.

When reviewing out-of-print clauses, look for three critical components: [Read more…]

Obtaining Reversions of Publishing Rights: the Good, the Bad, & the Ugly

January 10, 2016 By Susan Spann

Please welcome guest Susan Spann, a publishing attorney and author of the Shinobi Mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her debut novel, Claws Of The Cat (Minotaur, 2013), was Library Journal’s Mystery Debut of the Month and a Silver Falchion finalist for Best First Novel. Her third Shinobi Mystery, Flask Of The Drunken Master, released in July 2015, and the fourth is scheduled for publication in August 2016. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and the founder and curator of the Twitter #PubLaw hashtag, where she provides publishing legal and business information for writers. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.

As an author and transactional attorney with almost twenty years’ experience representing authors, publishers, and artists, I understand how critical it is for authors to understand their legal rights—and how few good sources of legal information exist for authors seeking to learn how to do it. I founded the #PubLaw hashtag, and wanted to blog for WU on legal issues, to help empower authors by providing information about writers’ legal rights and how to protect them.

Connect with Susan on her blog, on Facebook, and on Twitter.

Obtaining Reversions of Publishing Rights: the Good, the Bad, & the Ugly

In my work as a publishing lawyer, I frequently hear from authors hoping to terminate publishing contracts and obtain a reversion of rights to their published works. Rights reversion can be tricky, especially when the contract doesn’t give the author a unilateral (meaning “one-sided”) right to terminate. However, authors do have several options when it comes to terminating old or dysfunctional contracts and obtaining reversions of publishing rights.

Today, we’ll walk through the steps an author should follow to try and obtain reversion of publishing rights from a traditional publishing house.

Step 1: Review the Contract. In almost all cases, publishing contracts contain provisions stating when and how the contract can be terminated, and by whom. If the contract allows you to terminate under your current circumstances, follow the procedures in the contract to request reversion of your rights. Normally, these procedures include a written notice to the publisher (often sent via certified mail) stating the reasons for termination. Comply with the contract procedures exactly. If you have questions, or don’t understand the contract terms, consult a publishing lawyer.

Step 2: Ask the Publisher to Revert Your Rights. If the contract doesn’t grant the author the unilateral right to terminate, or if your situation doesn’t meet the requirements for unilateral termination, consider asking the publisher to agree to termination of the contract and a reversion of rights. By law, the parties to a contract can always modify or terminate the agreement by mutual consent, even if the contract doesn’t say so. [Read more…]

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