Why You Should Attend the Writers’ Police Academy – #WPA2016

WPA 2016If you write mystery or crime fiction, or romantic suspense, or anything where bad stuff happens, you need to know about police procedure and investigation, forensics, arson investigation, how PTSD affects law enforcement officers, emergency response teams, and all that stuff.

The best way to learn, hands down, is the Writers’ Police Academy, founded and run by Lee and Denene Lofland, with major sponsorship from Sisters in Crime. As you can tell from the photo, tThey make sitting in the BACK of a police car something to GRIN about!

The 2016 WPA was held at the Northeast Wisconsin Technical College outside of Green Bay, home to a terrific law enforcement training academy. It’s a hands-on, action-packed weekend. A few of the topics covered: Arson investigation; Asian and Native gangs; the Steven Avery investigation; ballistics; blood spatter (surprisingly popular!), courtroom testimony, common mistakes writers make about the law (I taught that one), death scene investigation, defense and arrest tactics, PTSD, drug ID, explosives, fire 101, force on force room clearing, forensic art, poisons, police talk, private investigation, undercover work, and more.

Hands-on sessions included driving, shooting, a shoot-don’t shoot scenario, and defense tactics. Each day, real-life scenarios were played out in front of us—a fatality collision, a stabbing on campus—so we could see who responded and what they did. The drone demo was great, and I’ll tell you, the SWAT armored vehicle is huge!

WPA 2016 2My personal favorite was the PIT maneuver driving class. I did it! I intentionally hit and spun another car! (Not easy for a personal injury lawyer to do that, but the instructor, Colleen Belongea, absolutely rocks!)

For perspective from other writers who attended, check out these blog posts:

Jessica Ellis Laine: Top Ten Reasons I Love the Writers’ Police Academy

Stacy Green: Writers Need the WPA Because Readers Are Smart

Terry O’Dell: Why Writers’ Police Academy? (This woman is serious—she’s attended 5 of the 8 WPAs!)

WPA Banquet photo #1I had a great time meeting so many Sisters in Crime—more than two-thirds of the attendees are members—and am gratified to know how valuable the experience is for Sisters, and others. (Banquet photo by Ohio Sister Jan Irvin.)

 

Planning for the 2017 WPA is underway. Watch the WPA website-–registration will open in February 2017.

My favorite writing books

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A reader spotted this photograph I’d posted of dictionaries and other references on my desk, and asked what books I think every writer should have. Besides Books, Crooks and Counselors, of course.

Language and style references:

A good dictionary and thesaurus, of course. In addition:

GarnerGarner’s Modern American Usage, Bryan Garner (Oxford; 3d Ed, 2009) Many of us remember the old Fowler’s Modern English Usage. This is better—smart, American, and up-to-date, by a lexicographer who shies not away from opining.

Chicago Manual of Style, a recent edition. Most publishers rely on the CSM, and if you use it, you can’t be accused of serious stylistic errors, even if some publishers or individuals have other preferences.

The Elements of Style, Strunk and White (various editions). The classic. Dated, maybe, but still a useful guide to many nuances of good writing.

The Emotion Thesaurus, Angela Ackerman and Becca Puglisi (2012) Readers read for emotion, but writers often use cliches and limited descriptions to show emotion in action. The lists of physical signals, internal sensations, mental responses, and more will help you deepen your writing and show the internal and external signs of emotion in stronger, fresher ways.

I also love the Oxford American Writer’s Thesaurus, in part for its essays on language and word meanings, but it isn’t an essential.

You should have a decent guide to grammar, as well. Contrary to your grade school recollections, they need not be dull. What’s most fun is to read not a prescriptive guide, but a volume or two by writers who clearly love the language and have strong opinions about it. I loved Constance Hale’s Sin and Syntax: How to Craft Wicked Good Prose; any of her books will be a fun read.

I was recently reminded of the late William Zinsser’s On Writing Well; it’s a classic, geared towards nonfiction, but helpful to all serious writers. I hear tell that there’s an audio version, read by Zinsser, perhaps abridged, that a friend enjoyed tremendously.

Writers should love words and cultivate an interest in them. My favorite sources won’t necessarily be yours, but I do think any serious writer needs to spend time simply playing with words and reading writers who play with them. Read poetry. Listen closely to song lyrics. Heck, do the crossword puzzle and play along with Will Shortz, NPR’s Puzzle Master. It’s all words.

Writing Craft:

Lately, I’ve been diving into James Scott Bell’s craft books for writers, and highly recommend them. Plot & Structure (Writers Digest, 2004) is a detailed guide to structure, with excellent sections on plot problems, how to generate ideas, and more. It’s a book to use over and over. Write Your Novel from the Middle (Compendium, 2014) explores Bell’s observation that the best stories have a “mirror moment” or midpoint shift in context; he shows how both plotters and pansters can find that moment, and write to and from it. How to Write Dazzling Dialogue (Compendium, 2014) is another winner, and I’m eager to dive into his new book on voice.

The Fire in Fiction and Writing the Breakout Novel, both by Donald Maass (Writers Digest, 2009 and 2001), are classics every writer should reread regularly. I’ve just started his Writing the 21st Century Novel (2012), and love, love, love his exercises and suggestions for diving deeper into character and emotion. If you like his columns on Writer Unboxed, you’ll recognize the approach—much of that material is here.

For something totally different: Ted Kooser’s The Poetry Home Repair Manual: Practical Advice for Beginning Poets (2007) is a slim volume I love for its lessons on meter and rhythm, on finding the right word and the exact meaning, and on learning to love working a line. I also enjoyed The Art of Description by poet Mark Doty.

Other faves:

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Write Away, by Elizabeth George. I took a week-long intensive writing workshop with her eons ago, and it changed my writing life.

Self-Editing for Writers, Renni Brown and Dave King

Reading Like a Writer, Francine Prose

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Lee Lofland’s Police Procedure and Investigation  (Writers Digest, 2007)

DP Lyle, Murder & Mayhem: A Doctor Answers Medical and Forenscis Questions for Mystery Writers The book that inspired me to write Books, Crooks & Counselors.

Adam Plantinga, 400 Things Cops Know (Linden/Quill Driver Books)

Inspiration:

tnWritesOfPassageYou know the usual suspects: Anne Lamott’s Bird by Bird, Brenda Ueland’s If You Want to Write. And Steven Pressfield’s War of Art and other titles. A wonderful new entry is Writes of Passage: Adventures on the Writer’s Journey, ed. by Hank Phillippi Ryan, with essays by 60 members of Sisters in Crime, including me.

I find inspiration in reading a good writer. I hope you do, too.

More suggestions? Tell me in the comments.

Thinking about crowdfunding? Think first about the legal issues

Kickstarter. GoFundMe. Fundable. IndieGoGo. Donors Choose. Kiva. With each new crowdfund website I hear about, I wonder about some of the legal issues involved — and what the effect might be on individual artists and writers who fall afoul. Dan Lear’s blog post for the NW Lawyer, the Washington State Bar blog, Advising a Crowdfunded Creater: Avoiding Bob Ferguson’s Wrath, identifies some of the legal issues for creators who meet their fundraising goals but fail to follow through. Ferguson, the Washington State AG, and his office recently won a $50,000 fine against a creator funded through Kickstarter who failed to provide the promised goodies. The post is aimed at lawyers, but includes some tips for creators, and links to the cautionary tale.

I know you’ll never fail to keep your promises. But maybe one of your characters does, or gets in trouble using a crowdfunding source to raise capital for a business, which involves a whole other set of issues and regulations, or to raise money for litigation. It’s an area ripe for conflict, which makes it ripe for story.

I also spotted these articles or guides on crowdfunding for individuals, such as writers or artists. Do note, I’m providing these links to help you understand the issues; I do not vouch for the info provided, I am not providing legal advice, and reading this blog does not create a lawyer-client relationship — if you’ve got legal questions about crowdfunding, or heaven forbid, a problem, consult a lawyer in your own state who has the appropriate knowledge!

Legally Speaking, It Depends – Crowdfunding Legal and Business Issues, from Script Magazine, May 2014

Kickstarter Legal Guide, from a Portland OR law firm

The Problems and Promises of Crowdfunding, from Forbes Magazine, July 2013

 

New words in the dictionary — a quiz (part 2)

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At the Get Published Writers Conference in Bozeman this past June, where I was a speaker, my friend Lynn Kinnamon, the conference chair, shared these new words. All were published in the Merriam Website Online Dictionary in the last year or so. How many can you define?

 

8. sriracha (n)

9. vocal fry (n)

10. dark web

11. dox (v)

12. hyperlocal (n, adj)

13. lifehack (n)

14. microaggression

Part 1 last week

ANSWERS:

8. a hot sauce made of chile peppers, often used in Thai food; said SEE-rah-chah

9. the break in a voice when it drops to the lowest register; women tend to be criticized for it, and NPR reports that researchers have found some people view it as a sign of being untrustworthy

10. online, the hidden web, operating with masked ISPs and false, sometimes stolen, user names, usually for illicit ops, such as the child porn ring that stole a local man’s id, triggering a search warrant and much agony

11. to publish private info on line, without consent, to harass or cause trouble

12. not, as you might think, a very specific location or small community, but the practice of focusing on information directed at a specific community, such as a weekly newspaper that publishes info aimed at residents of a specific community and rarely comments on regional or national news

13. a tip for making life easier, like using plastic tags from bread bags to label power cords in the tangle behind your desk

14. In the words of Columbia University professor Derald Wing Sue, “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.”

New words in the dictionary — a quiz (part 1)

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At the Get Published Writers Conference in Bozeman this past June, where I was a speaker, my friend Lynn Kinnamon, the conference chair, shared these new words. All were published in the Merriam Website Online Dictionary in the last year or so. How many can you define?

 

1. NSFW (abbreviation)

2. jeggings (n)

3. photobomb (v)

4. eggcorn (n)

5. emoji (n)

6. click fraud (n)

7. upcycle (v)

Part 2 in two weeks 

ANSWERS:

1. Not Suitable For Work

2. denim leggings

3. to appear, uninvited but on purpose, in a photograph

4. words or a phrase commonly misheard, e.g., misunderstood lyrics; comes from the word acorn.

5. symbol used in email or text messages to express an emotion not conveyed by the words themselves

6. deliberately clicking on an online advertisement repeatedly, to cost the advertiser money or drain their pre-set ad budget; a nasty thing to do

7. to make something new out of trash, such as sewing a skirt out of old t-shirts or cutting and polishing a wine bottle to make a tumbler

 

 

Death by Details

 

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in First Draft, the SinC Guppy chapter newsletter.

DEATH BY DETAILS How much does the writer need to know about the story background vs. how much the reader needs to know?

A while back, I begged off my regular column because I was jammed by deadlines in federal court. In true editorial fashion, Susan [Evans, then First Draft editor] asked if I could make a column out of that. How on earth, I wondered, could I make civil discovery and disclosure deadlines in a groundwater pollution case interesting? Or the expert disclosures and settlement discussions going on at the same time in a state court case involving three electric utility companies and the state of Montana over water rights and the navigability of certain rivers at statehood in 1889?

And that brought me to a larger question: how much do you the writer need to know about the background of your story? And how much does the reader need to know?

I recently read a mystery – Higher Authority, an early entry in Stephen White’s excellent and successful series – involving a young woman’s claim of sexual harassment by an older woman she’d worked with. The lawyer filed suit within days after taking the case – without first filing a state or federal administrative claim. Outrage! Malpractice! Even a dumb lawyer – and there are plenty, despite the brains it takes to get in and out of law school and pass the bar exam – knows better! But the process takes weeks, even months. Including it would destroy a story that depended on the pressure of the lawsuit to trigger bad actors to do still more bad things.

So how much do you the writer need to know? I have no doubt White knew about the administrative claim process and simply decided to leave it out. Only trained professionals and a handful of readers would know he’d skipped a legally necessary step, and surely they would forgive him, for the sake of the plot. I did, barely a moment after creasing my forehead at the omission. After all, it’s a novel, not a civil procedure text, and readers aren’t looking to the plot for legal advice.

But knowledge can help you avoid mistakes that readers will notice – mistakes that affect the plot, or that introduce unnecessary error or confusion. A writer recently asked me about the spousal privilege, thinking she could add tension to her plot by if her protagonist married the good guy wrongly suspected of murder, preventing the protagonist from testifying against him. She didn’t realize that the privilege wouldn’t protect her character from being compelled to testify about what she saw him do, and that the law in her story state would not protect her from testifying to what he told her, because the conversations occurred before their marriage.

Another writer became concerned when a critique partner questioned her story’s setting in a small-town casino. The critter thought a casino had to be connected to an Indian tribe – a possibility that hadn’t even crossed the writer’s mind. Turns out her story state does allow non-tribal casinos – but readers might not know that, so she decided to forestall potential furrowed eyebrows by making the point in a brief dialogue exchange.

Back to those deadlines. If I were writing a story set around environmental litigation – wait, I did that. It’s in a box on a shelf in my office closet – would I spend precious pages detailing the emergency response, what state law requires, the VPH test results, test pits to delineate the scope of the dissolved-phase plume, and the hours after hours spent writing it all up for the various agencies, then more hours preparing documents to meet pressing deadlines? You know my answer, don’t you? But rather than skip over those details entirely, consider their role in your story. If your mystery centers on the environmental problems, would it benefit from weaving in a bit of the real-life complications? Is your character exhausted and seeing double after working till midnight sorting through boxes of disorganized records? That might be a good time for the villain to follow her home, when she’s least prepared mentally and physically. If you want to get her away from the office and civilization – and out of cell phone reach – consider a site visit to a remote mine or tailings pit. If you want to set up a court room confrontation, let her find a surprise in those boxes – a report that wasn’t disclosed when it should have been, a letter of complaint that predates the polluter’s first acknowledged notice, or an internal report on the dangers of the product or practice at issue. (“At issue” – lawyers say that a lot.) Use those details to complicate your story. But if the legal issue is more of a subplot than the heart of the story – as in White’s Higher Authority – you can safely leave your readers innocent of the finer points.

You don’t need to know all the details. If you do – from personal experience – you have the tough job of deciding what the reader needs to know. If you don’t, you have an equally tough job of learning just enough, and not getting lost in your own research. Talk to the experts. Run a scene by one of them. Ask a friend who knows nothing about the technical aspects to read your scene and tell you what she understood and didn’t. Sharpen your red pencil and be prepared to be ruthless with those details. Because “the curse of knowledge” can be the enemy of a good read.

Copyright Basics

I’m republishing here a few of the articles currently on my website before it undergoes a major revision. While I’m not a publishing lawyer, one thing any decent lawyer can do is research, then analyze and synthesize the results. Herewith, those results. 

COPYRIGHT BASICS Answers to the most frequent questions about copyright–how to establish it, avoiding infringement, and other issues

(First published in the Sisters in Crime Guppy Newsletter, First Draft, 2004 but still valid)

This month, by request, I’m straying slightly from my mission to provide legal information for use in fiction to discuss the basic principles of copyright law.

What is copyright and what does an unpublished writer need to know? Forget everything you think you know about copyright. In 1978, Congress enacted a new system which has since undergone further changes as a result of both Congressional action and Supreme Court decisions. Yes, 1978 was a while ago, but myths and assumptions take a long time to die. So euthanize yours, and read along with me.

Copyright, at its most basic, is the right to claim ownership of a creative work and earn profit from it. Copy, the word-within-a-word, fools us into thinking copyright pertains only to written works. Copyright principles apply equally to literary works, music (including lyrics), film and sound recordings, paintings, photos, architectural plans, and other works.

You may not copyright ideas, titles, names, phrases, slogans, common symbols (although trademark or service mark registration may be available), or processes (patent protection may be available).

Copyright gives its holder specific benefits. These include the exclusive right to reproduce the work, prepare derivative works (J.K. Rowling’sQuidditch Through the Ages or Harry Potter mugs), distribute the work by sale or license, and perform or display the work publicly. Transfer of ownership does not transfer the copyright unless expressly agreed in writing; an artist who sells a painting still owns the copyright and has the exclusive right to reproduce the painting in prints, posters, cards, t-shirts, or other media.

Copyright arises automatically as soon as a work is created. The work need not be completed or published, but it must be fixed in a medium. For literary work, of course, that means it must be written. You have automatic copyright in your partial outlines, rough drafts, and finely polished final copy. But you have no copyright to an idea or a plot outline kept in your head.

Copyright can be inherited; when an author dies, rights to her work, published or not, go to her heirs.

You don’t need to register your work to obtain copyright. The U.S. Copyright Office says this: “In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection.”

You don’t need to use the © symbol to establish copyright. The rule requiring copyright notice on the work has been eliminated for all works published since 1989. The word or symbol does give notice that the work is copyrighted, and thus can help make or defend an infringement claim, but use of the symbol is not necessary to establish copyright. If challenged, you can establish your copyright by showing creation through the work itself, drafts, outlines, journal notations, dates on computer printouts, and personal testimony.

If you use the symbol, the U.S. Copyright Office suggests this format, in a location that gives the reader reasonable notice:

©2004 John Doe

Some writers claim that agents & editors consider a writer who puts the © symbol on her work to be an amateur. I haven’t been able to confirm or rule that out. I have been told that most book publishers prefer that authors not register their work but let the publisher do so at the time of publication; that way, the copyright date inside the book is current and doesn’t cut sales by giving the false impression that a book is older or a reprint.

What are the benefits of registration and how do I register copyright? The chief benefit of registration is to establish a public record and make it easier to establish copyright if someone steals your work or accuses you of stealing hers. Other benefits include protection against illegal importation of unauthorized copies.

Registration requires an application and $30 fee for each work, plus copies for deposit in the Library of Congress. See the U.S. Copyright Office website for specifics and forms.

How long does copyright last? For works created on or after January 1, 1978, copyright lasts for the author’s life plus 70 years after death. For joint authors, copyright lasts 70 years after the last surviving author’s death. In a major change from prior law, copyright may no longer be renewed. You may think this short-changes authors, but the trade-off is that the term of copyright is now considerably longer and copyright holders can no longer inadvertently lose their rights. (Under prior law, copyright was 28 years with a 28 year renewal term, but renewal was not automatic and copyright was lost if not renewed during the original term).

Any work created before 1923 is no longer protected by copyright and has entered the public domain. That means the work can be quoted freely without permission. (You should still give credit, though, to avoid confusing your readers and triggering suspicions of plagiarism.)

Copyright obtained between 1923 and 1978 may be current or may have expired. Check with the U.S. Copyright Office for specifics on the copyright of older works.

What are the risks of sharing my work before publication or registration? Whether sharing work creates a risk of theft depends largely on how and with whom you share. Choose wisely. Submitting work to a reputable agent or editor rarely creates problems. At nearly every writers’ conference or workshop I’ve attended, a novice has expressed concern about theft of an idea; the published writers, agents, and editors uniformly respond that the writer’s concern marks him as an amateur and he should not worry. If you share pages with a face-to-face critique group or an online group in whom you’ve built trust, the risk is probably minimal. Sharing in a less secure environment, such as an online writers’ forum or chat room where you don’t know who is participating, is far riskier. Choose what you share carefully. If you have a concept for a book that’s never been done, it’s probably better to spend your energy writing the book than touting your concept.

Keep in mind that ideas, concepts, and facts cannot be copyrighted. Sometimes an idea is in the air. Maybe you mentioned in the bar at Left Coast Crime your idea for a mystery with a frozen body found in a glacier. The next year, Dana Stabenow published a Kate Shugak mystery in which a receding glacier reveals a dead body. She wasn’t in the bar with you and her book was already in the pipeline. Neither of you stole the idea from the other. Writer Les Standiford, head of the creative writing department at Florida International University, often testifies as an expert in copyright cases involving novelists and screenwriters. He reminds writers that similarities in story structure or overall concept do not mean the story was stolen; the focus in determining theft (copyright infringement) is on content and style — that is, how the writer develops the idea.

How much can I quote without violating copyright? What is fair use? Copyright gives its holder the exclusive right to use a work. However, an exception exists for limited use of quotes without authorization. A long-standing myth says four lines or fifty words can be quoted without fear. Slay that bugaboo now.

The key to determining whether quoting infringes copyright is whether the quoting is “fair.” In the landmark case, Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), Harper sold Time magazine the right to publish an excerpt from former President Gerald Ford’s forthcoming memoir. The Nationobtained a pre-publication copy and ran an article quoting three hundred words. Time cancelled the deal and refused to pay Harper. In finding againstThe Nation, the United States Supreme Court set out several factors to be considered:
— the purpose and character of the use. Quotation in a review, even if critical, is obviously fair, so long as it is accurate. Quotation for profit, as inThe Nation’s scoop, weighs against fairness.
— nature of the copyrighted work. Are you quoting historical facts or compilations, or fiction or poetry? The more factual and less creative, the more “fair” the use.
— amount and substantiality of use. The Supreme Court held that the 300 word excerpt quoted in The Nation — Ford’s reflections on pardoning Nixon — was the heart of the 200,000 word manuscript. Point: it’s not the length that counts, but what you excerpt and how you use it. Four lines from Crime and Punishment may be insignificant, but four lines from a Langston Hughes poem may be the bulk of it.
— effect on potential market or value. The Nation scooped Time for profit and market share. A reviewer or a professor giving a talk on literary criticism doesn’t have the same negative effect on market.

Bottom line: Think carefully about whether you need to quote a copyrighted work, how you are quoting, and how the copyright holder will view your quote. When in doubt, discuss getting permission to quote with your publisher. Contact the publisher of the work quoted or the Authors’ Registry, a clearinghouse for contacts and payments, or search the Copyright Office database.

Remember that copyright protection doesn’t apply to titles and short phrases. Even though the music and lyrics of “Proud Mary” are still under copyright, you may use the song title as a book title. Most readers will make the connection to “Proud Mary, keep on burning,” especially if a character mentions to John Fogerty or a Creedence Clearwater Revival concert, or if the plot involves a riverboat — or even a woman named Mary. But if you intend to quote the lyrics in the text or as an epigram or a chapter heading, copyright protection applies. Requesting permission in advance is a lot easier than responding to a “cease and desist” letter asserting an infringement claim when your book is already in print. A new author using a short quote in a paperback edition with an average print run may be given permission to quote at no or low cost. If the price is too high, revise to use only a title or an image, not a quote, or to quote only material in the public domain.

Copyright protection also applies to material used in a free publication. Most copyright holders will charge only a nominal fee for non-profit use. You might wonder why a wealthy musician or a Pulitzer prize winner would charge at all in that situation. Charging, even if only ten dollars, helps the copyright holder demonstrate that it is actively protecting its right to control the use of the work, which could be important in an infringement claim where more money is at stake. Remember that copyright law protects the holder’s right to decide how and where the material is used, not just the right to earn profits from the work.

If you’re writing parody, or rap music with sampling, the rules differ. Check them carefully.

What about photocopying? If it’s for your own use, relax. However, copying articles for archival use in a corporate setting is a problem if systematic or institutional; research the practice before continuing it. Brief excerpts for educational use are acceptable, but systematic use or creation of “course packs” for students is not.

(I am indebted to Crawford & Murray, authors of The Writer’s Legal Guide, for their insights into the Harper & Row decision.)

May I use a real play as background in a mystery set in a community theater? May the characters discuss the title, plot, their roles, or the author? Plots and titles can’t be copyrighted, so you can freely use both and let the characters in your novel discuss them. Novel characters may discuss play characters, but you cannot recreate a character from the play in your novel without permission. That is, you can write a novel in which an actor discusses playing John Proctor in “The Crucible,” and you could also write a historical novel featuring John Proctor so long as you based your work on historical research and not on the Arthur Miller play. But if a play is still under copyright, you may not take a character and use him as your own.

Fair use principles apply to quoting. You need permission to quote if you write a scene where characters recite lines from the play while rehearsing. But if your characters simply discuss how they’ll act out the confrontation between John and Mary Proctor without quoting lines from Miller’s play, no permission is needed.

Discussion of the author of the play is regulated not by copyright principles but by the law of libel and slander. The characters in the novel may freely discuss what they think Miller intended in a certain scene or the political context in which he wrote “The Crucible.” They may also discuss the facts of Miller’s own life, so long as they do so accurately. Opinions may be freely given so long as they are clearly opinion; a character may say “In my opinion, Miller’s over-rated” or “I think he was crazy to marry Marilyn.”

In addition to the sources already mentioned, you may be able to contact the copyright holder of plays through Dramatists’ Play Service, which publishes plays and licenses production rights.

Magazine publishers may copyright articles by freelancers as “work for hire.” Magazines commonly copyright an entire issue as one piece of work in the publisher’s name. This avoids the expense and trouble of registering copyright for each story in the name of the magazine (if staff-written) or the freelance writer. Typically, contracts specify that the writer is providing the story as “work for hire,” but has the right to publish the piece on her website, in an anthology, or after a specific period of time, in another publication. Magazine publishers rarely refuse permission to reprint if given credit for the original publication. Magazines often retain the right to publish the piece on its own website or in their own anthologies (e.g., “Sunset Magazine’s Guide to Western R.V. Travel”).

What copyright protection exists internationally? There is no “international copyright;” the laws of individual countries govern. Happily, most countries have signed treaties giving copyright protection to non-citizens, agreeing to enforce each others’ copyright laws, and providing an enforcement mechanism.

Full U.S. copyright protection is available to any person who, when the work is created, is a “national or domiciliary” (meaning generally a citizen or resident) of the U.S. or any country that is a signatory to international copyright treaties. U.S. copyright law also applies automatically to works first published in the U.S. or treaty parties. In short, most countries have signed international copyright agreements and honor copyright no matter what the author’s citizenship or residency.

If your work is first published abroad and you are a U.S. citizen or resident, your copyright is protected by both foreign and U.S. law. The treaties provide a relatively uniform system of protection.

If you sell foreign rights and your work is published in translation or in a different edition (e.g., a book first published in the U.S. is published in German for distribution in Germany or in a British edition with differences in spelling), a separate copyright exists in the new edition.

For more info, check out the U.S. Copyright office for circulars on specific topics or their Frequently Asked Questions. Or consult a legal reference book for writers such as The Writer’s Legal Guide, an Authors Guild Desk Reference, by Tad Crawford & Kay Murray (3d Ed. 2002, Allworth Press).  (When I spy a new edition, I’ll raise my hand.)

Who Can Represent Defendants in Death Penalty Cases?

OldMTPrisonA bonus post this month — I’m continuing to republish a few of the “Questions of the Month” from my website as it undergoes a lovely redesign. This was originally published several years ago in First Draft, the newsletter of the SinC Guppy chapter. 

Who Can Represent Defendants in Death Penalty Cases?

A writer reminds me that a subplot in the movie “My Cousin Vinnie” involves the qualifications of an out-of-state lawyer hired to represent the defendant in a death penalty case. So, she asks, what are those qualifications?

Federal courts and most states with the death penalty require that when a defendant is charged with a crime eligible for the death penalty, at least one member of the defense team meet certain standards. Although prosecutors are not required to declare whether they will seek the death penalty when they file charges, the American Bar Association’s 2003 Guidelines recommend that qualified counsel be appointed as soon after arrest as possible – even before the defendant has been formally charged or found eligible for a public defense. As far back as 1932, the U.S. Supreme Court acknowledged that a person facing criminal charges “requires the guiding hand of counsel at every step in the proceedings against him.”

Why? Because the stakes are never higher. The primary goals, of course, are to make sure that the process is fair, that convictions are reliable, and that the sentence imposed is appropriate. A great deal of recent publicity has underscored the too-frequent inequities and outright errors in capital – or death penalty – cases. Those cases involve many of the same decisions and issues as other criminal cases – issues of witness credibility, forensics, aggravating and mitigating factors in sentencing. But in capital cases, those issues may be more acute, and others also arise. Should the defendant undergo a psychiatric examination? How should potential jurors be questioned about their attitudes toward capital punishment? Should the method of execution be challenged?

As the law evolves – and it always does – keeping up gets harder. Capital cases often involve psychiatric issues not present in other cases. Prosecutors and defense counsel need a working knowledge of both mental competence – the defendant’s ability to understand the charges and help with his own defense – and mental illness. A high percentage of capital defendants suffer from some degree of mental illness. Lawyers on both sides – and judges – have to evaluate whether mental illness is a defense in the case, a factor in sentencing, both, or neither.

The enormous responsibilities of defending capital cases place huge pressures on counsel – emotional and psychological pressure, as well as the need to organize their time, case files, and staff efficiently.

Such highly specialized skills can be hard to find. In states with smaller populations, death penalty cases are less common, and it may be difficult to find a lawyer with sufficient experience who is able to take on the case. In that situation, the court may appoint an out-of-state lawyer with death penalty experience to work with an experienced local criminal lawyer.

What of a defendant who chooses to represent himself? The death penalty complicates the already messy question of pro se defense. The defendant’s mental status and competence to represent himself is crucial – and for that reason, pro se capital cases are rare. Backup or standby counsel will be appointed to assist and advise the defendant, and take over if necessary.

So what is required to be a capital defense lawyer? The federal courts have adopted a specific procedure for certification, as have many states, following the ABA Guidelines. I can’t begin to summarize the various rules, but at the minimum, they involve the following considerations:

  • experience preparing, negotiating, and trying complex criminal cases, preferably including other capital cases;
  • knowledge of the applicable law, both substantive and procedural;
  • experience and skill working with expert witnesses, especially on issues such as  forensics, DNA, ballistics, and psychiatry;
  • skill in research, analysis, and drafting documents, and in oral advocacy;
  • skill in investigating, preparing, and presenting evidence on mental status;
  • experience managing complex cases, including staff (other lawyers, investigators, and clerical personnel), physical evidence, and documentation;
  • experience investigating and presenting mitigating factors – those aspects of a case and a life that warrant a sentence less than death;
  • ability to work and communicate with a client who may be mentally impaired or socially dysfunctional;
  • a limited workload.

And, I would add, empathy, unquestionable ethics, and a passion for justice.

The ABA publishes Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (rev. 2003).

Photo: the Old Montana State Prison, now a museum; credit to the Museum Society.

A new resource for writers

BBG - 9My friend Bill Hopkins, a mystery writer and mostly-retired Missouri judge, has a new blog for writers, Bench, Book, and Gavel. Here’s what he says about it:

“Let’s talk about the law. Specifically, the criminal law. In the United States of America, we have at least fifty different sets of criminal statutes. Add to that all the territories (Puerto Rico, Guam, etc.) and the federal statutes, we have more sets.

Needless to say, that gets confusing quickly.

What I intend to do here in this blog is to discuss legal issues that are important to writers but also to entertain and inform you, the readers of our books. Without readers, after all, we’d be writing to each other.”

Bill Hopkins

 

Bill plans a weekly blog. Subscribe and receive it in your e-mail in box, as you do mine. And you’ll be twice as smart about the law!

Garner on terminology

GarnerGarner’s Modern American Usage is a reference you should all have.

“Garner’s Usage Tip of the Day

judge; justice.

In American English, as a general rule, judges sitting on the highest appellate level of a jurisdiction are known as “justices.” Trial judges and appellate judges on intermediate levels are generally called “judges,” not “justices.”

New York and Texas depart from these rules of thumb. In New York, “justices” sit on the trial court of general jurisdiction (called the Supreme Court, oddly), whereas “judges” sit on the appellate courts. In Texas, “justices” sit on the courts of appeals (between the trial court and the Supreme Court — the latter being the highest civil court, which is also composed of “justices”); “judges” sit on trial courts and on the Court of Criminal Appeals, the highest criminal court.

H.W. Horwill wrote that “‘judge’ carries with it in America by no means such dignified associations as it possesses in Eng. It may mean [in American English] no more than a magistrate of a police court.” Modern American Usage 180 (2d ed. 1944). “Justice” may also denote, in American and British English alike, a low-ranking judge or inferior magistrate, as in the phrases “justice of the peace” and “police justice.””